Official Indiscretions: Considering Sex Bargains with Government Informants

Abstract:     
This article addresses an alarming new investigatory practice employed by law enforcement officials: requiring arrestees to carry out sexual tasks as confidential informants. Requiring arrestee informants to engage in sexual activities in exchange for a reduction or possible elimination of criminal penalties they might otherwise incur raises constitutional concerns. Informants can and do accept a variety of investigative assignments. But, as this article shows by drawing on sociological research, sex tasks differ fundamentally from more conventional informant undertakings. The importance of this distinction is that while adult individuals undoubtedly can provide consent to sexual matters, the validity of such consent is questionable in view of the coercive context for negotiating these deals. Without authentic consent, an informant who must complete a sex task suffers a violation of her substantive due process right to bodily integrity. Accordingly, this article takes an essential first step towards ensuring effective consent and avoiding constitutional injury by providing an interdisciplinary analysis to address this previously overlooked problem.

Keywords: sex bargains, government informants, criminal law, law enforcement, due process, consent

JEL Classifications: K00, K14, K42

Accepted Paper Series