Sarah Holder is a staff writer at CityLab covering local policy, housing, labor, and technology.
While other countries have turned to women-only cars, New York legislators are proposing to ban repeat sex offenders and increase penalties for subway grinders.
For three months in 1909, women could choose to ride between New York City and Jersey City isolated from men. Years before women would gain the right to vote, these women-only “Suffragette cars” were meant to protect female commuters from harassment and trafficking.
New York City advocates originally hoped to expand the program to the inter-borough subway system—reserving the last car of every rush hour train for women—but the pilot, which ran along the current PATH train route, was ill-fated. Some felt women were infantilized by the separation; headlines in newspapers around the country called it the “Jane Crowe Car,” the “Hen Car,” and the “Old Maid's Retreat.” Though it shielded women from “brutes” who would “insult a lady” on a crowded train, as one city councilor put it in a 1909 New York Times story, other women found that “gentlemen are the best protection the ladies want against such conduct.” The car became segregated by class as well as gender: Older, upper middle-class women used it to travel back from shopping expeditions apart from the rowdier masses.
“There was only one drawback to the scheme,” read a 1909 article in the Brooklyn Daily Eagle. “The women would not use the car.” By the end of the pilot, according to the Saint Paul, Minnesota Appeal, the “cars went half empty, even at rush hour.”
New York City’s public transportation has since stayed gender-integrated, even as other cities around the world, from Cairo to Rio to Mexico City, began introducing their own women-only transit options on crowded routes. But today, reports of harassment—forcible bumping and grinding, lewd comments, indecent exposure, public masturbation, and abuse—in underground subway tunnels have persisted, and New York legislators are renewing their commitments to curb it. More than 100 years later, it’s proving just as complicated to balance rider security with liberty.
No one is trying to reinstate New York City’s women-only trains, which legal experts say would likely be ruled unconstitutional in the U.S. But where they have been tried, some say they’re as much safety measures as tools for empowerment—enclaves where women have room to breathe, and are encouraged to take up space. “The body language of women in this car feels different. They look carefree,” wrote Rhitu Chatterjee, an NPR reporter, reflecting on Delhi’s women-only cars, where women ride, “free from the male stares and aggressions that assault them elsewhere in the city.”
There and elsewhere, however, women-only cars are also critiqued as band-aids that don’t address broader problems of sexual discrimination and abuse. Says Holly Kearl, the founder of the U.S.-based nonprofit, Stop Street Harassment, “if anyone should be segregated it should be the harassers. The onus shouldn’t be on women to change their lives.”
Legislation proposed by New York City council member Chaim Deutsch last month would prioritize isolation of a different kind: He wants to ban repeat sex offenders from riding public transit in the city, for life. “If someone shoplifts in a store, and they are a recidivist, then that person could be banned from walking into the store,” Deutsch told The New York Times. “This should not be any different.”
Private stores are inherently different than subways, however. “The New York City subway is public transit—the key word being ‘public’ transportation,” Mark Bederow, a New York criminal defense attorney and former Manhattan prosecutor, told CityLab. “It does raise all sorts of civil liberties questions of free movement.”
Sex offenders travel via public transportation to get to court-ordered therapy appointments, or legal meetings, or hearings—or to family commitments or work, just like any other New Yorker. Being stripped of access for a previous offense could inhibit people’s path towards rehabilitation without doing much to dis-incentivize the behavior, argues Guy Padraic Hamilton-Smith, the legal fellow for the Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline School of Law.
“Banishing people does not mean that they cease to exist in our society; it only means that they can now less effectively navigate it,” he wrote in The Appeal. (Deutsch told CityLab “there’s plenty of other ways” to travel through New York City than public transit. Few are cheaper, however.)
The ban could also be hard to justify legally, says Dorothy Schulz, a law and criminal justice professor emerita at John Jay College of Criminal Justice who has done research on women and transit security.
“There are systems around the country that ‘ban’ people,” she said. “But it’s usually for crimes against the transit system,” like vandalism. In the case of subway predators, the Metropolitan Transit Authority could argue that “they’re making the system less comfortable and that's ultimately hurting ridership, because women don’t ride because they’re afraid they’re going to be rubbed up against,” she said. “But could you say then that you could ban teenagers because they’re loud, and curse a lot, and they make elderly people feel uncomfortable on the bus?”
And practically, enforcing such a blanket restriction in a subway system of 5.6 million riders—and beyond—poses another challenge entirely. “It sounds so Orwellian,” said Bederow. “Someone’s banned from the subway because they’ve allegedly molested someone—how do you know it’s them?”
Deutsch says that police would catch repeat offenders the same ways they always have: by patrolling the stations and cars. And, as the MTA phases out MetroCards over the next four years and introduces One Metro New York, a new way of accessing the subway by cell phone, he says the city could eventually link police records about past offenses to that access.
Deutsch’s legislation may not get far. The city council does not have direct jurisdiction over the MTA, which controls the subway, and many bills are introduced in city council each year only to die soon thereafter. “I think there’s a huge amount of political posturing here on the part of the city council,” said Schulz.
Still, the proposal has been driving conversation in New York. Governor Andrew Cuomo told The New York Times that he “supported barring sexual offenders after a second conviction,” though he does not support a lifetime ban; New York City Mayor Bill de Blasio has said he supports legislation that will “help us do more to go at these predators and get them off the subway.”
And along with the MTA, which issued a statement encouraging efforts to get repeat offenders off their trains and out of their stations, the New York Police Department is “adamantly” advocating for the ban, to address what they’ve identified as a growing problem.
From January to April 21 of this year, the NYPD recorded 283 sex crimes, including felonies and misdemeanors, in the New York City transit system. That’s a 28 percent increase from the 221 complaint reports made in the same four-month span last year.
“Crime on the trains is down significantly, but there is a small group of recidivist offenders driving sex crimes in the subway, and they are repeating these disgusting crimes over and over again,” said Sergeant Jessica McRorie, the spokesperson for the Deputy Commissioner of Public Information (DCPI), in a statement to CityLab. “If arrest and the current judicial penalties are not deterring this behavior, we have an obligation to New Yorkers to use stronger methods to stop these offenses.”
Approximately one third of arrested offenders in 2016 had a previous sex crime record, and it’s that minority who are most active, says the DCPI. The police scour the subways each day searching for them, but cannot arrest them unless they commit another crime on the police officers’ watch.
The presence of these riders can impede the free movement of commuters, who may avoid taking the subway for fear of assault, says New York State Senator Diane Savino. But instead of a ban on repeat offenders, which she supports but sees as ultimately impractical, Savino has proposed increasing the penalty for those who commit sex crimes on the subway even once.
“If we were prosecuting these crimes the way they should be prosecuted, less of these guys would be on the subway,” Savino said. Most forms of harassment on NYC public transit are currently classified as misdemeanors, which can land perpetrators in jail for a year, though Savino says they’re more likely to be given, “anything from a slap on the wrist to probation to release.”
A bill she is co-sponsoring would make sexual contact initiated while a passenger on public transportation—without consent and with the sole intent of sexual gratification—a Class D felony. It would also upgrade public lewdness on public transit to a class A misdemeanor.
The intent is to stop people who engage in public masturbation, for example, from moving on to more violent crimes. “In a crowded subway, they could be just exposing themselves,” said Savino, who represents parts of Staten Island and Brighton Beach. “In a more secluded area they could become more aggressive with their victims.”
She recounted the story of a young actress who fended off a man who was touching her in a subway station, only to encounter him again later. He had followed her downstairs to the platform, where he pushed her onto the tracks. Later, the police found he was a repeat sexual offender. Under Deutsch’s plan, he could have been banned. Under Savino’s, he could have been in jail.
“I don’t think there would be much trouble getting it through the legislature and satisfying the public, that if somebody is a serial subway molester that the punishment should be enhanced,” said Bederow.
Though Savino’s legislation has passed through New York’s state Senate three times in different forms since 2013, it’s been stalled each time at the Democrat-controlled Assembly’s Committee on Codes. “’Why do you want to punish these guys?’” Savino recalls the committee asking her. “’They didn’t rape anybody—yet.’ That’s an important point: yet.”
Punishing offenders for crimes they haven’t yet committed is aligned with the broken windows theory of policing, which posits that enforcing penalties for minor offenses like vandalism or marijuana possession can cut down on overall violence in a neighborhood. New York City has pivoted away from the model in recent years, driven by evidence that the crackdown can contribute more to cycles of mass incarceration than to overall neighborhood safety, and that it disproportionately affects communities of color.
Although most would agree that any sexual harassment is more serious than a broken window, the disparities in current sex crime enforcement patterns are serious as well: The NYPD reported that last year, misdemeanor sex crime suspects and arrestees in New York were most frequently black and Hispanic. Suspects of non-rape felony sex crimes were 38.8 percent black, and 38.1 percent Hispanic, and Hispanic people made up 48.3 percent of those arrested.
At a time when New York legislators in all five boroughs are pushing for decriminalization, says Schulz, subway sexual assaults may be the one crime it’s politically popular to punish more harshly. But, she says, it’s wise to evaluate existing legal options before introducing new ones. Upgrading a misdemeanor to a Class D felony in New York carries seriously upgraded consequences: up to seven years of jail time, and disenfranchisement for the duration of that incarceration. “If it’s not being enforced as a misdemeanor, why is it going to be enforced as a felony?” said Schulz.
“I take this issue seriously, but it doesn’t sit right with me to have that extreme of a penalty, when we don’t really know what the outcome and the impact would be,” said Kearl, who has written several books on street harassment.
She works with transit agencies across the country, training officials to recognize sexual harassment and to not be harassers themselves; strengthening reporting channels; and mounting public information campaigns for bystanders and passengers alike. “On the transit system, there’s actually an authority, and they have policies, and you can report to them,” Kearl said. “Whereas if you’re in a street, a park, a beach, it can be much harder to figure out what to do, or where to turn to.”
In part, New York City’s recent leap in reported crimes reflects how successful this national push to make reporting easier has been. According to an analysis conducted by Savino’s office, reports of sexual crimes on the subway increased by more than 50 percent from 2014 to 2016—after the MTA introduced a streamlined sexual harassment reporting system. (Of the offenses, forcible touching was reported at the highest rate in 2015 and 2016, followed by public lewdness.) The advent of cell phone cameras means more riders can record misconduct as it’s happening; and the #MeToo movement has empowered more victims to speak out in relationships, the workplace, and now the streets.
But focusing on improving the physical state of the subway could help those vulnerable to abuse, too. The toll of harassment on and within public transportation is different other forms of street harassment, Kearl says, because victims are confined in close proximity with their attackers or hecklers.
And as delays stretch on, jamming more people into the same cars, surreptitious harassment becomes easier to get away with. “Rubbing is a factor of crowding,” said Schulz, who worked in transit policing for Grand Central Station and Metro North. Maybe dedicating more of the transit system’s budget to address overcrowding would be a better way to prevent offenses than jailing offenders longer, Hamilton-Smith argued in The Appeal.
Still, an empty station can be just as dangerous as a crowded one. When transit systems are well-used, “people may feel a little safer because there are more people around them,” said Kearl. “It’s hard to win.”