Subway grinders are felons too – an act of sexual assault goes from misdemeanor to felony

By Lene Bech

All over the world, public transportation is a hotbed for sexual assault with strangers crowded together in a small, confined space.

In Japan, where subway groping is a big problem, women-only trains have existed for over 100 years to ensure that women can travel safely and without worrying about unwanted sexual attention. Many other cities around the world have women-only buses, trains or train carriages, including cities in Indonesia, India, Brazil, and Russia, Guatemala, Mexico, and Pakistan.

In New York City, several women have spoken publicly about the uncomforts of travelling on the subway and encountering unwanted attention but sexual harassment can take on many forms and not all are legally recognized as crimes at all. While some academics and legal experts fight to restrict sexual harassment in the public space through legislation, the issue still poses a challenge for legislators in many parts of the world.

But now, perpetrators on New York City subways, who in the past could walk away from grinding against fellow train passengers with misdemeanor charges, now face serious consequences for their actions.

In late February this year, subway grinding was finally determined to be a felony punishable by law in New York State, pushing the limits for what can and should be considered a crime when it comes to sexual harassment and assault.

The road to felony charges has been long and winded though: the crime commonly referred to as subway grinding – the uninvited act of rubbing ones genitals against another person and/ or ejaculating on another person – has not previously been recognized as anything more than a sexual misdemeanor. Legally, a perpetrator could only be charged with a felony if he was guilty of “forcible touching” a victim, legally defined as “squeezing, grabbing or pinching” the other person.

In 2009, Luis Guaman was arrested for rubbing his genitals against a male victim on a New York City subway and convicted but said in his appeal that he could not be charged with a felony, since he neither squeezed, grabbed or pinched his victim. His crime did not meet the legal definitions for forcible touching. Guaman had reasons to be optimistic that he would get away with it, as recent history was on his side.

In 2011, the 26-year old Darnell Hardware was accused of sexual assault after three different incidents of ejaculating on women on crowded subway trains, dating back to 2002 and 2005. DNAInfo reported that the women had been trapped and unable to move in the crowded subway cars. The semen that Hardware left on the women’s clothes however, allowed investigators to match his DNA to the attacks years later, after he was convicted of a felony drug charge.

Despite the evidence, in 2012 Hardware got off with no prison charge on three years’ probation because he had not used force against the women, and as a result could not be charged with a felony.

His case followed that of Jason Mack, who in 2009 was charged with a felony after he had rubbed against a 14-year old schoolgirl on a crowded train in 2002 and his DNA was linked to the semen left on her clothes. Mack confessed but the judge rejected the felony charge because the victim had not been threatened with violence and Mack ended up with a misdemeanor sex abuse charge, facing a max of three months.

Several politicians attempted to close the loophole in the law then but it was not until this year that subway grinders could expect severe punishment for their actions.

In late February, the Court of Appeals upheld the conviction of Luis Guaman, unanimously ruling that subway grinding is in fact an act of forcible touching.

The ruling is a victory for advocates of stricter laws against sexual harassment and for those, who have been victims of sexual harassment or assault on public transport or anywhere in the public space. Time will tell if the ruling might be a step towards legally restricting other types of sexual harassment and assault as well.


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