An Attorney's Analysis of Proposed NY Legislation to Upgrade Subway
Sexual Assaults to Felonies
Everyone can agree that sexual assaults on the subway are a serious problem
in New York City. Recently, Senator Savino (D-Staten Island)
proposed legislation that would upgrade the charges for sexual assaults
in the subway system from misdemeanors to felonies. Currently, these sexual assaults are generally prosecuted as Sexual Abuse
in the Third Degree (a Class B misdemeanor under Penal Law Section 130.55)
and Forcible Touching (a Class A misdemeanor under Penal Law Section 130.52).
However, it is our opinion that the legislation may not be entirely logical
or the most effective approach.
There is a coherent argument to distinguish between sexual assaults on
public transportation and sexual assaults that occur in other places;
indeed, federal law makes it a felony to sexually assault someone on an
international airplane flight under the theory that the victim has no
means of escape. However, by that logic, it should be a felony in New
York to punch someone in the face on public transportation, and it is
not (it's just a misdemeanor Assault in the Third Degree). Why should
a momentary lapse of weakness by a person who pats a woman on the derriere
be worthy of a felony conviction, when a punch in the face that breaks
someone's nose or fractures his cheekbone is only worthy of a misdemeanor?
After all, the latter crime involves a more malicious intent on the part
of the perpetrator and a greater suffering on the part of the victim,
period. In short, Senator Savino's proposed legislation throws the
penal code a bit out of balance.
Senator Savino instead ought to focus just on the rules regarding registration
of sex offenders.As it stands, a first-time offender convicted of one of the misdemeanors
currently applied to "subway gropers and grinders" (Sexual Abuse
in the Third Degree and Forcible Touching) does not have to register as
a sex offender unless the victim is under the age of 18. That could be fixed such that anyone convicted of these charges would
be forced to register (even for their first offenses). Or, anyone convicted
of one of these charges for a crime committed while riding on public transportation
or in within the transit system could also be forced to register. This
solution would seem to make more sense for two reasons.
For starters, sex offender monitoring programs
have demonstrated tremendous success in reducing recidivism, whereas felony convictions have no such effect. Furthermore, registration
as a penalty is more appropriately tied to this crime than a felony conviction
because these crimes are generally more indicative of a lack of control
over sexual impulses on the part of the perpetrator than it is about deliberate
criminality, which we normally associate with felons. These impulses can
be controlled and reduced through behavioral counseling and monitoring.
Senator Savino should consider revising her legislation accordingly.
If you or a loved one have been arrested for a subway-related sexual offense,
you should strongly consider contacting the experienced
criminal defense attorneys at Galluzzo & Arnone LLP.
penal law 130.52,
penal law 130.55,
sexual abuse in the third degree,