he first time I encountered a subway grinder, I was on a crowded 4 train headed to work. Every time the train stopped, from Eastern Parkway/Brooklyn Museum to Wall Street, no one exited, and more people pushed in. We were pressed in so tightly we didn’t need to hold on; our bodies held each other up as the train lurched through the underground tunnels.
When I felt the man’s erection against me, I was embarrassed for him. I figured the poor guy couldn’t help his body’s reaction to being pressed in forced intimacy against a stranger. To the annoyance of those around me, I tried to shift to give him a little more space.
It turned out he didn’t want space.
I moved a few centimeters forward. So did he. My mind didn’t register what was happening. I shifted again. Again, he followed.
Then he started rubbing his penis against me.
I was in a wool dress, sweating like mad on a crowded subway train trying to get to my law firm’s midtown offices, and some creep was sliding his erection up and down on my buttocks. I wanted to hurt him. I wanted to kick him. I wanted to grab his member at the root and twist it off. Except I couldn’t move.
I thought about screaming, but for some reason, I couldn’t. I didn’t want to be at the center of a train commotion. I just wanted him to get off me. I looked back and gave him several dirty looks. He met my eyes once, and seemed shocked to find anger there. Even still, he didn’t stop humping me.
When the train began to empty out, I thrust an elbow behind me in the general direction of where he’d stood. It landed. I didn’t look back to see if I’d hit him or another passenger. I exited the train and re-entered on a different car before the doors closed. Shaking and fuming, I rode the rest of the way to work unmolested.
The 14-year-old victim of subway pervert Jason Mack wasn’t so fortunate. In the case of People v. Mack, the Court of Appeals, New York’s highest appellate court, described the victim’s ordeal:
“During the morning rush hour on March 22, 2002, a teenage girl on her way to school got on a packed subway train in Manhattan. She stood just inside the train’s door as a tall and ‘very heavy’ man ‘pushed himself in so that he was behind’ her.
”Once the doors closed and the train started to move, the girl felt some ‘weird movements’ on her lower back, which she attributed to the swaying of the train and the press of passengers. When she turned in the man’s direction, though, the touching sensation would stop; it resumed when she turned back around. She tried to ‘move more to [her] right’ to avoid this man, but she was hemmed in by the crush of commuters. The man left the train one station after he got on. When the girl eventually got off the train, she noticed semen on her jeans and coat.”
Incredibly, the New York Court of Appeals ruled that this assault did not constitute first degree sexual abuse under the New York Penal Code. Finding that “the crowded conditions in the subway car merely masked and facilitated the unwanted sexual contact alleged,” the Court affirmed a lower court ruling that no force was used to commit the crime. Thanks to New York’s highest appellate court, subway grinders can molest unsuspecting passengers without fear of serving substantial jail time or appearing on a sex offender registry.
The New York Penal Code defines first degree sexual abuse, in relevant part, as follows:
“§ 130.65 Sexual abuse in the first degree.
“A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact…[b]y forcible compulsion…”
The Court of Appeals stated, “The sexual contact itself is the only physical force that defendant may be said to have deployed against his victim,” then inexplicably continued, “This is not enough to establish that the sexual contact was ‘compel[led] by . . . use of physical force.’” The reasoning makes no sense.
The New York Daily News, in an article and separate op-ed about the case, noted that Jason Mack is 5’9” and weighs 300 pounds. His victim was fourteen at the time of the attack. As the Daily News remarked, the dissenting judges “got it right,” pointing out ,“[t]here is nothing furtive about a 300-pound man” masturbating his exposed penis against “a trapped child.”
Mack used the physical force of his size and the cover of a crowded subway train to carry out his attack. He admitted to the crime. That should have been enough to send him to jail for first degree sexual abuse.
The ruling has already worked to the benefit of another subway grinder – the appropriately named Darnell Hardware, whose criminal record includes 32 arrests and two sexual assault cases. Hardware was being held on charges in three separate subway grinding incidents, but was released on probation, thanks to the Court of Appeals.
The Court of Appeals got this case wrong. Masturbating against a person on a crowded subway train, without their consent, is a serious sexual offense and should be treated as such. The State Legislature and Governor Cuomo must act to correct this mistake.