New York Lawmakers Want To Ban Sex Offenders From The Subway. That Won’t Solve Anything.

An effort by New York City officials to address subway sexual offenses like nonconsensual touching and public lewdness is gathering momentum, but their proposals miss the mark and won’t solve the problem. City Councilmember Chaim Deutsch’s office told The Appeal that it is in the process of drafting legislation that would impose a lifetime mass transit ban on anyone with a minimum of two convictions for these crimes, likening a lifetime ban from the subway to a store banning shoplifters. Governor Andrew Cuomo and Mayor Bill de Blasio approved of the idea, though they stopped short of expressing support for a lifetime ban and have instead referenced shorter periods of time.

“Two convictions for a sexual assault on a subway, you should be banned,” Cuomo said. “You have people who target victims in the subways and that’s where they go. Many people, crowded areas, certain techniques, that’s where they go.”

Of course, the general problem of sexual harms in our society and the specific problem of assaults such as unwanted groping on the subway are very real, and thus exceedingly important to address. According to the NYPD, there were 866 reported sex crimes on the subway in 2018 alone.

Banishment from mass transit, however, does little to meet this goal, as it reflects a framing of sexual harms that is out of step with reality: Most sex offenses are not attributable to individuals who commit multiple offenses. More than 95 percent of reported and cleared sex offenses in New York State are attributable to first-time offenders. Most people who are held accountable for sexual offenses do not reoffend. In data compiled by the NYPD, most of those arrested in 2016 and 2017 for subway sex offenses had no prior sex offense arrest record, never mind convictions.

Even if one assumes that such a ban could be enforced amid a daily crush of 5.6 million riders, it could not address the vast majority of these offenses. Like our sex offense policies more generally, it gives the public a vague sense that the problem is being addressed, but obfuscates the realities of sexual harms in society and thus undermines efforts to properly address them.

Despite the fact that the majority of people who commit these crimes would not be subject to the ban, a common strain of thinking is that they would nevertheless be deterred by the possibility of its imposition. Ratcheting up penalties as a means to address crime is one of America’s favorite pastimes. New York State Senator Diane Savino, for example, has repeatedly introduced legislation to upgrade nonconsensual touching on a subway to a felony, arguing that we need to “properly punish” these offenses. However, a large body of research demonstrates that is it is not the severity of consequence that deters people, but rather the certainty of that consequence. In this case, consequences are far from certain: the NYPD clears fewer than half of its subway sex offenses and fewer than half of reported rapes within the city generally.

As our society continues to nurse the hangover brought on by mass incarceration, it should be apparent that boosting penalties and proposing banishment are easy “solutions” that carry with them enormous social, constitutional, fiscal, and human costs that may not become clear until years or even decades later. While there is certainly a necessary role for the criminal legal system to play in holding people who cause harm accountable for their actions, viewing it as the sole (or even primary) means through which societal change can be purchased misses opportunities to prevent these harms from occurring.

A public health perspective, for example, has been demonstrated in other contexts to reduce rates of sexual offending with approaches that don’t rely on punitive measures. Sexual assault resistance programs and bystander intervention training, for example, are effective in significantly reducing rates of sexual violence on college campuses. These approaches work by investing in comprehensive and layered perspectives of social problems to address the underlying causes, and therefore prevent them—not merely punish them.

Banishing people does not mean that they cease to exist in our society; it only means that they can now less effectively navigate it.

One piece of a public health approach might look like this: In an area where reports of sexual assault were on the rise, transit budgets were slashed, resulting in more overcrowding. Spending money on addressing overcrowding, as opposed to incarcerating people for longer periods of time, would most likely have a more significant impact on preventing these offenses. Less overcrowding would mean fewer opportunities for surreptitious assaults, a higher likelihood of detection and apprehension (and thus deterrence), and additional opportunities for bystanders to intervene.

Banishing people does not mean that they cease to exist in our society; it only means that they can now less effectively navigate it. Cutting people off from resources, support, and community has the unsurprising effect of making it more likely that someone will commit another offense. In New York City, where millions rely on mass transit, banishment would effectively cripple the ability of those exiting the criminal legal system to reintegrate. If people who commit repeat offenses have high needs—such as the 41-year-old man the New York Post reports is repeatedly arrested for sucking his thumb and masturbating on the subway—then a better approach would be to ensure that those needs are being addressed in meaningful, safe, and effective ways. Casting people into an urban wilderness does little to ensure their success, or the safety of our communities.

Governor Cuomo referenced the precedent for this policy—that New York, and many other states, prohibit people with sex offense convictions from living within proscribed distances of places like schools and parks, which has the de facto effect of banishment from entire neighborhoods. Precedent in this area of law and policy has a knack for rapid expansion. Over the last few decades, sex offense registries have grown rapidly, in both punitiveness and scope. In 2019, there are more people required to register than there are people sitting in America’s jails. What began as relatively simple lists soon became something closer to open-air prisons. Other types of registries have also been rapidly adopted by states: violent offenses, drugs, animal abuse, white collar crime. Cuomo’s precedent-as-justification resembles something of a dark omen: Once a ban is implemented, it only seems a matter of time before it expands.

Draconian and exclusionary policies have traditionally functioned as a way for politicians to exploit sexual harms as an easy way to win votes and boost sagging approval ratings, but have done little to meaningfully address harms (sexual or otherwise) in our society. Just as we hold people who cause harm to account, we ought to hold our officials to account and demand that serious problems be taken seriously.

Guy Padraic Hamilton-Smith is the legal fellow for the Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline School of Law, and routinely writes about sexual violence prevention, civil rights, and criminal justice for a variety of outlets. His own experiences with the sex offense registry inspired him to go to law school, which he has written about here. You can follow him on Twitter @G_Padraic.