Oakland police applicants asked to disclose whether they were sexually assaulted.
The Oakland Police Department, which has long struggled to recruit women, asks all officer applicants to disclose whether they have been sexually assaulted, The Chronicle has learned.
The inquiry does not appear to be common. The Chronicle checked with police departments in the 10 most populous cities in California and could not find another that screens for whether candidates are sexual assault victims.
The practice is “inexcusable,” said retired Portland, Ore., Police Chief Penny Harrington, the first woman to lead a major city police force.
“There’s absolutely no reason to be doing that,” said Harrington, who founded the National Center for Women and Policing. “I can’t imagine why they would need to know that information, except as a way to wash out women.”
Legal experts said the inquiry is odd and potentially problematic, although there is disagreement over whether it’s illegal.
Oakland police officials said a candidate would not be denied a position for being a sexual assault victim. Asked why they want to know the information, officials said they are interested in reviewing all police reports in which applicants may appear.
The question comes up when recruits have to sign and get notarized a form that allows the Police Department to conduct a background check on them, authorizing the release of educational transcripts, credit history and other records. The release form has been in use since at least 2011.
“As an applicant for a position of Police Officer with the Oakland Police Department, I am required to furnish information for use in determining my suitability for employment and I may not be considered without it,” the document begins.
It goes on to list the types of records that must be disclosed to background investigators and says the information may be released to third parties.
Being a victim of sexual assault is framed in the context of knowing an applicant’s potential criminal record. The form says that among the information that will be reviewed by background investigators is the applicant’s “local criminal history information … including if I have been a victim of sexual assault.” It cites “Penal Code Section 2939d” for justification.
Penal Code Section 2939d does not exist.
In response to questions from The Chronicle, Officer Marco Marquez, a department spokesman, said the number is a typo. He said the correct section of California law is 293(d).
That law reads: “A law enforcement agency shall not disclose to a person, except the prosecutor, parole officers of the Department of Corrections and Rehabilitation, hearing officers of the parole authority, probation officers of county probation departments, or other persons or public agencies where authorized or required by law, the name of a person who alleges to be the victim of a sex offense if that person has elected to exercise his or her right pursuant to this section and Section 6254 of the Government Code.”
Marquez said a candidate would not be disqualified for being a sexual assault victim. The Police Department’s background investigators are “interested in every police report that an applicant might appear in,” including whether the person was a suspect, witness or victim, he said.
The release form, however, does not ask for that information. It does not ask whether applicants have been victims of any other types of crimes. It does not ask whether they committed sexual assault — only whether they were the victim of sexual assault. The form has no questions about being a witness or suspect.
One expert on employment law and sex discrimination, UC Hastings College of the Law Professor Joan Williams, said requiring applicants to disclose their status as victims of sexual assault is “clearly illegal.”
“This is not something they are supposed to be doing,” Williams said. “It’s completely outrageous.”
Despite the department posing the question to all applicants, Williams said, women would be disproportionately impacted by their response, because they are more likely to be sexual assault victims than men.
“By including only one situation in which you have to report that you’re a victim, the implication is that if you’re a victim of robbery, for example, that doesn’t matter,” Williams said. “The stereotype is that women who have been sexually assaulted turn into raging ids and tear machines and could never be objective again.”
At least one woman thinks her response to the question was the reason she was denied the position.
The woman, who first applied in 2013, was passed over for the job as an Oakland cop despite her minority status, fluency in multiple languages, advanced educational degrees and more than 10 years of experience as an officer in other police agencies — all qualities the Oakland department says it prizes. She spoke on condition of anonymity because of concerns about her chances of being hired elsewhere.
The Police Department declined to comment on her case.
The woman — who has an ongoing lawsuit against a former department saying a fellow police officer raped her — filed a discrimination complaint against the Oakland Police Department with the California Department of Fair Employment and Housing. In the complaint, which is pending, the woman said she received an email from an Oakland police sergeant telling her she was no longer under consideration for the position.
“When I inquired as to why, he informed me that it was because of my pending discrimination/civil suit that I have against a previous employer,” she wrote.
After complaining, the woman said she was placed back into the pool of eligible candidates but told that she had to wait for the department to complete a background investigation. That was a year ago.
She likened her situation to a purgatory status and called the Oakland agency’s actions “an unscalable blue wall of unconscionable brutality.”
“A man who rapes is afforded a presumption of innocence, yet a woman who’s been raped — she’s guilty even if proven innocent and need not apply,” she said.
Deborah Rhode, a Stanford Law School professor who studies equal protection and sex discrimination, said the woman seems to have a strong case. Whistle-blowers are not supposed to be punished, she said.
But Rhode disagreed with the idea that asking the question about sexual assault is illegal, because it is posed to both men and women. She said she hadn’t heard of other agencies asking it.
“It’s quite peculiar,” Rhode said. “I would like to know what the underlying rationale behind the question is. … I don’t know if the assumption is that someone who’s been a victim can’t be objective.”
Oakland officials — including former Assistant Chief Paul Figueroa — were alerted in 2013 to the problems posed by the inquiry, according to emails sent by the woman who was denied the position and her friend, a California police captain who was advocating on her behalf. Figueroa was one of three chiefs forced to step down in 2016 amid a wide-ranging sexual misconduct scandal.
Last month, the woman again raised the issue, this time in an email to Police Chief Anne Kirkpatrick and City Administrator Sabrina Landreth. Other officials in the Police Department, the city attorney’s office and Mayor Libby Schaaf’s office were included as recipients.
The woman said no one has replied.
Like most law enforcement agencies, the Oakland force struggles to attract female officers. One police academy class that began this year had just one woman among 24 recruits. The latest class has eight women out of 34. In recent years, women have made up 11 to 14 percent of the force — on par with the national average.
Harrington, the retired Portland chief, said practices like Oakland’s keep women out of the field.
“They’ll tell you the reason we don’t have more women is that women don’t want these jobs,” she said. “It’s a bunch of hooey. Who wouldn’t want a good-paying job with pensions and benefits and promotion opportunities? They don’t want women in there.”
Representatives of the San Francisco, San Jose, Sacramento, Los Angeles, Bakersfield, Anaheim and Santa Ana police departments said they do not ask applicants to disclose whether they are sexual assault victims.
The Alameda County Sheriff’s Office does not ask for such disclosure from its applicants, said Deputy Sean Poole, a background investigator for the department. But the inquiry may come up in other contexts, Poole said.
For instance, applicants must answer a question — standard among California law enforcement agencies — about whether they have ever had sex at work. Someone who responds affirmatively may say that it was actually harassment or assault, which would lead to further investigation, Poole said.
During a polygraph-like test, if an applicant’s tone wavers on a question about committing domestic violence, Poole said, he may ask a follow-up question to see whether the person was the victim of domestic violence to sort out potential false positives.
“We’re trying to figure out if they were the perpetrator, not the victim,” he said. “We don’t disqualify for being a victim.”