A Defense Attorney Analyzes new legislation for Subway Sexual Assaults

Posted By Galluzzo & Arnone || 1-Jun-2015

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.

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