In police sexual misconduct case, Michigan woman sues officer she accused of assault

Washington Post

Melissa McMillan was catching a ride home after a night out drinking when her driver was pulled over by the police and accused of drunken driving. Rather than arranging a ride home for the passenger, the arresting officer took the very intoxicated McMillan to a hotel. She said that when she woke up, the officer was having sex with her.

In Covert Township, Michigan, it was Officer Erich M. Fritz's third, and final, job as a police officer. He was arrested in July 2016 and charged with kidnapping and two counts of criminal sexual assault. Fritz claimed the sex was consensual. He eventually pleaded no contest to unlawful imprisonment for the purpose of committing sexual assault. His sentence: one year in the county jail and five years of probation. Fritz served nine months and was released. "Unlawful imprisonment" is technically not a sex offense, and Fritz was not required to register as a sex offender.

Now, McMillan is suing Fritz, 43, and the small town that hired him, accusing him of abusing his police authority, as well as false imprisonment and emotional distress. Her attorneys say sexual misconduct is among the most common allegations against police - and a problem some experts say is likely underreported.

Researchers tracking "police crime" in one study found 771 sex-related cases during one four-year period, involving 555 sworn officers. An investigation by the Buffalo News in 2015 found that in a 10-year period, "a law enforcement official was caught in a case of sexual abuse or misconduct at least every five days. Nearly all were men. Nearly all victims were women, and a surprising number were adolescents."

McMillan, 40, said she is going public with her lawsuit, and her name, to call attention to the largely unrecognized problem and the fact "it can happen to anybody."

"I'm a nurse," McMillan said. "I'm a mom. I didn't do anything wrong. If it can happen by a police officer, who can you trust?" Though news media typically withhold the names of alleged victims, McMillan told The Washington Post that she was not seeking anonymity because "there's nothing to be ashamed of, there's nothing to hide. For a long time I felt ashamed. It shouldn't be that way."

Fritz did not return a phone call seeking comment. His lawyer, Scott Grabel, said, "She's got a story and Erich has a different story about what transpired. . . . It's Mr. Fritz's contention she was awake and voluntary as they were having sex. My position is I think it's going to be a difficult case for the plaintiff."

The top three elected officials in Covert Township, a town of about 3,000 on the shore of Lake Michigan, did not return messages seeking comment. The town hired Fritz two months before he was arrested, and when Van Buren County prosecutor Michael Bedford looked into Fritz's past, he found Fritz had been bounced from two other small police departments for misconduct.

Fritz resigned shortly after his arrest, perhaps hoping to maintain his law enforcement certification before his department could impose its own discipline and take another step in the "officer shuffle" of officers who move from one department to another. Bedford called Fritz "a disgrace to the law enforcement community," and said that "one of my goals was to get him convicted of a serious felony so he could never be a police officer again."

While working for a small department in North Dakota, Fritz posted photos of himself on an adult website in various states of undress, with his uniform visible in some of them, Bedford said. At another department in Michigan, Fritz was released for violating various policies, Bedford said.

McMillan was outraged to learn of Fritz's past. "I think there was a failure in the hiring process, obviously," she said. "Maybe if they had properly vetted him, this would not have happened."

Most of the events of July 9, 2016, are not in dispute. McMillan admits to being very drunk after leaving Captain Lou's, a bar in South Haven, Michigan, and letting a male friend drive her car. But about 2:30 a.m., Fritz pulled the car over and soon placed the driver under arrest.

Fritz's in-car video shows him removing McMillan from the car, and that she needed help getting to Fritz's patrol car. Bedford said that a tow-truck driver told Fritz he'd give McMillan a ride home, while he was removing her car from the highway, but Fritz declined that offer. Instead, Fritz placed McMillan in the back seat with her driver, and switched off the in-car audio and video, McMillan's lawsuit claims.

Fritz radioed to police dispatchers that he was taking his intoxicated passenger to a hotel, and this apparently did not trouble anyone working either in the Van Buren County dispatch center or on duty that morning because no one objected, McMillan's lawyers said. "Nobody asked a question as to why or what he was intending on doing," said attorney Antonio Romanucci.

Fritz drove McMillan to one hotel before booking his drunk driver but it was full, so he dropped her at a second hotel and told her to check in, but he had taken her wallet and phone, Bedford said. The hotel requested that Fritz return, which he did after processing his prisoner. Then Fritz took McMillan to a third hotel where he was keeping a room of his own because his home was elsewhere in Michigan and he and his wife hadn't moved to Covert yet, Bedford said.

McMillan claims that she took a shower, vomited and passed out. When she awoke, she says that Fritz was having sex with her. She later texted friends saying she was scared and didn't know where she was, and when she left the hotel she went to a hospital and had a rape examination, according to the lawsuit. The Michigan State Police soon began an investigation. Her lawsuit alleges that McMillan "continues to suffer from acute anxiety and depression as a result of her sexual assaults."

Grabel said that McMillan was conscious when Fritz returned to the hotel, and that Fritz asked her if she had found a ride home. "Then she made advances on him," Grabel said. "It was clearly consensual." Grabel noted that Fritz's shift had ended by the time of the sexual encounter, so he was off-duty, and said that Fritz passed two lie-detector tests. In Michigan, the standard for whether a person is unable to consent is not if they are intoxicated but whether they are unconscious, asleep or unable to communicate, Grabel said.

"I'm not here telling you it's acceptable or appropriate, what he did," Grabel said. He said Fritz resigned because "you're not supposed to give people lifts to motels when you're working. You don't position yourself to be accused of that. But was there a sexual assault? My opinion, clearly not."

At his sentencing in July 2017, Fritz apologized to his friends, family, co-workers and then to McMillan, but only for taking her to a hotel. "I never should have offered her a hotel room in the first place," Fritz said, according to video of the hearing. "It never should have happened. I never should have put her in that situation."

Bedford, the prosecutor, said he offered a plea deal because he wasn't sure how a jury would respond to a police officer saying the sex was consensual, and that after the initial encounter there was further consensual sex. McMillan said she reluctantly agreed to the deal and that her memory of the night was blurry. Nicolette Ward, one of her lawyers, said McMillan subsequently had sex with Fritz because she felt trapped and had no choice.

Philip Matthew Stinson, a criminal justice professor at Bowling Green State University, was a co-author of the 2015 study that found 771 sex-related charges filed against police in a four-year period. "The facts of the Erich Fritz case are troubling," Stinson said. "My research has found that there are some, hopefully very few, police officers who are sexual predators."

It should be noted that the rate of sexual assault occurring in the nation's sworn police population, which was estimated at roughly 750,000 by the Bureau of Justice Statistics in 2016, is far lower than the rate of sexual assault in the general population. But only officers and deputies have the powers of arrest as a possible tool of coercion.

But Stinson and others said the problem is likely underreported. "Most of the victims are terrified of reporting the assaults - who do you call when your assailant is a police officer?" Stinson said. "Also, as seen in Fritz's case, it is typical to select a victim who was vulnerable, impaired, unable to defend herself, and one who the officer thought would not be believed if she came forward."

Author Andrea J. Ritchie, who wrote the book, "Invisible No More: Police Violence Against Black Women and Women of Color,"wrote in The Post earlier this year that police sexual misconduct is "a systemic problem" and that "accountability is rare." She cited one study that found that 41 percent of officers charged with sexual violence had previous sexual misconduct charges but had been allowed to remain on the job.

She said some departments are taking steps to deter such misconduct. "Many departments already require officers to report mileage when they transport arrestees," Ritchie wrote, ""in part to prevent detours to secluded areas to force or extort sex."

Ward, McMillan's lawyer, noted that sexual misconduct was the second most reported offense by police officers, after use of force. "We have to assume the numbers are broader than what's reported," Ward said. "Women are afraid to come forward, or fear they won't be believed." She said McMillan was believed because Fritz's in-car camera showed the officer taking custody of the clearly drunk woman.

First published in The Washington Post

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