Here’s a pop quiz for you.
The topic: crime and punishment
“Off with his head!” Uh, Queen? Isn’t that just a tiny bit severe?
An attractive woman falls asleep on an airplane, and the stranger sitting next to her, a card-carrying, pig-man creepazoid, takes that opportunity to “feel her up.” He is caught in the act, and arrested when the plane lands. What should be the maximum penalty imposed for such a violation of the poor woman’s privacy, dignity, and person?
If you said “life in prison,” go to the head of the class. The federal government has exclusive jurisdiction over sexual abuse cases that occur on American airplane flights, and sets the penalties. A New Jersey man is currently awaiting trial after allegedly engaging in such in-flight molestation. How can such an extreme sentence be justified or even contemplated? What is this, “Midnight Express”? Rumania under the wise rule of Vlad the Impaler?
In July, George Will wrote a frightening column about the proliferation of federal laws that make it literally impossible for citizens to avoid being law-breakers, putting most of us at the mercy of prosecutors—and you never want to be at the mercy of a prosecutor. “In 1980, federal statutes specified 3,000 criminal offenses,” Will wrote,”by 2007, 4,450. They continue to multiply. Often…they are untethered from the common-law tradition of mens rea, which holds that a crime must involve a criminal intent — a guilty mind. Legions of government lawyers inundate targets …with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive…the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that “our normal daily activities expose us to potential prosecution at the whim of a government official. Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.”
There is no question that molesting a sleeping woman should be a crime, but surely not one that should put the offender in the same category as Charles Manson and Sirhan Sirhan. I am not one who suspects the government of conspiracies and dark purposes, but I do not want to have to rely on forbearance and leniency as the only factors protecting me from prosecution and excessive punishment, either. If we allow the government to wield too much power, we should expect that it will abuse it. If a molesting pig of an air passenger can be subjected to Saddam Hussein regime-style sentences, we are foolish to think that this doesn’t pose a threat to us as well. A government without proportion, reason or mercy cannot and should not be trusted.
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Facts: CNN
Source: Washington Post (George Will)
Graphic: Comic Vine
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at jamproethics@verizon.net.
Ethics Alarms 
As you note, life in prison and a $250,000 fine are the maximum penalty available for sexual assault. Just one year ago, a similar case resulted in a fine of $10,000, one year imprisonment, and 5 years probation; far less than the maximum. I doubt this was the result of forbearance or leniency (as you suggest is required to avoid imposition of the maximum penalty), but, rather, a reasoned conclusion based on the facts. Can you not imagine a sexual assault worthy of life in prison? I certainly can. Sexual assault is a violent crime and comes in a variety of forms.
I gather you would prefer that those who set the parameters identify varying levels of sexual assault with varying maximum penalties to go with them. Good luck with that. Level 1: An unwanted touching of the body over clothing. Level 2: An unwanted kiss. Level 3: An unwanted kiss with tongue. Level 4: An unwanted touching of a non-genital portion the body under clothing. Oh, wait. Is that more or less offensive than the kiss with tongue (which involves penetration)? Level 5: Hand in pants. Level 6: Hand in pants with penetration. Level 7: Hand in pants with penetration using the little vodka bottle? Wait, is that worse than the hand? And where does an unwanted touching of the penis fit in here? Is an unwanted touching of a penis worse if perpetrated by a man or a woman? I’d say neither, but I know many men who think otherwise. What if the victim is drugged? If he/she drugged him/herself -a bit of Valium for the nervous flyer, anyone? What is the victim is a child? What if this is a second (or third, or fifth) offense? You see where I’m going here.
I, for one, prefer a system that allows for a maximum penalty appropriate for the most offensive possibility than one in which (as was the case in years past) sexual assault is not given its due as a truly violent despicable act that, in some cases, is just as worthy (if not more worthy) of life imprisonment as murder.
Sorry, Jack. Whatever the validity of the remainder of the rant, the example was, in my opinion, very poorly chosen.
As a lawyer, you know that laws, to be fair, have to be written more carefully than this. Rape on a plane? Life imprisonment as a max sounds reasonable. I can’t imagine, practically speaking, anyone actually being raped on a plane, so I would also have to answer no, I can’t imagine, given the other crimes with life imprisonment as maximum punishment, an in the air molesting offense that would justify it. Sex offenses short of rape do not get life sentences, nor should they.
The problem with excessive maximum sentences is that 1) sometimes they are actually used 2) they distort the hierarchy of offenses. The guy in the case at hand had his hands under a sleeping woman’s blouse. outrageous and serious. but he should not be facing even the possibility of life imprisonment.
What’s the maximum sentence in the sentencing guidelines for a sleeping grope?
Your overall point is spot on, but the maximum sentence here isn’t they way to attack it. That there’s a catchall for sexual assualt like this is more of the point.
It’s a bad law, overly broad, and misapplied on a plane. The guy in this case got a $100,000 bond—that’s what George Zimmerman got the first time. Ridiculous.
Agreed on all counts.
There are far too many offenses which belong in state courts, which are designed to handle them, and not in federal courts, which are not. The Congress tends to react to bad situtaions in order to appear to the electorate that they “are doing something,” when, in reality, sufficient laws and punishments are already extant to deal with most of the situtaions. Many federal prosecutions, at least in my jurisdiction, begin with a charge and an offer is made to the defendant as to that charge. If the defendant rejects the offer, the prosecution continues to bring new charges until the defendant gives up and accepts the original offer for fear of greater punsihment and additional penalties. With limited crimes, the feds would not be able to do this, but since their perception is that most anything involves interstate commerce, they can charge new offenses until their hearts’ (if they indeed have hearts) content.
In my younger days, I heard (and used) the expression ‘don’t make a federal case out of it.’ The obvious implication was that a federal case was a big, big deal (and) something fairly uncommon. Nowadays, it seems as though almost anything can be a ‘federal’ case, further blurring and diminishing the separation between the federal and state governments. It’s still a big deal because the federal government has effectively unlimited resources (compared to almost any individual) and has trended more and more to act as a bully and to intervene in many cases that, to my mind, have nothing to do with the federal government.
Even more troubling is the growing tendency when the state has prosecuted and failed to convict someone — usually of a ‘hate’ crime or some other publicly heinous offense — for the federal government to then try that person again for the same crime. I’ve heard the justifications but I have never been convinced this does not violate the double jeopardy amendment to the Constitution. Our courts were never designed to operate under the principle of ‘if you don’t succeed at first, try try again.’ It outrages me almost as much as the underlying crime.
One last comment. The technique of piling on charges until the defendant gives up and agrees to a plea is not unique to the feds. I’ve read articles in our local paper about pretty much the same practice being done my our D.A.s
Sorry – my hyperlink didn’t work. The case a year ago is discussed at http://timesofindia.indiatimes.com/world/us/Indian-American-jailed-for-sexual-abuse-on-plane/articleshow/9625234.cms
I saw that. Isn’t that irrelevant to whether he could have been sentenced to a much longer, and unjust,sentence? Why not have a death sentence option, just in case? Deterrence and retribution just can’t justify a life sentence.
One more thing: A “creepazoid” is a person that seems or acts weird around you. A person who you do not know, who intentionally moves or removes your clothing in order to touch your genitals, without invitation, while you are asleep is not a “creepazoid.” He/she is molester, a sexual predator, a criminal. Describing him as a “pig-man creepazoid” who was just trying to “feel her up” makes him sound like a 16 year old at a 1950s drive-in. I am sure this was not your intent, but it is the kind of language that makes it difficult for the less ethically inclined to accept/understand why sexual harrassment and assault are the serious issues you know they are.
I’m open to suggestions. I had never seen a precise definition of “creepazoid”, so I’m grateful for that. Yes, all of your descriptors are accurate, though they don’t preclude mine…I could also say such a person has poor impulse control.The point is, your words still don’t include murderer, arsonist, rapist, or any of the other terms that legitimately suggest “life sentence,” no matter how bad he is.
“molestor, sexual predator” is somehow less than rapist?
Since the individual had, in fact, placed his hands on the woman’s private parts, and nothing more, and was, by Lorraine’s own definition, a molester, then yes: by definition that’s less than rapist. You disagree?
A square is a rectangle. A rapist is a molestor and can be a sexual predator.
I also think that it’s pretty silly to say rapists are significantly worse than other kinds of sexual molestors, especially with the various legal definitions of rape.
Thank you.
Nonsense. What definition of rape is going to take place on a plane and is no worse than an unauthorized touching?
A rapist is a molester, but all molesters aren’t rapists.And again, a molester on a plane CAN”T be a rapist, unless everyone on the plane is asleep, including the attendants. There has never been a recorded or alleged rape on a commercial airliner. Are you surprised?
A rectangle is not a square.
While fingering someone while they sleep is technically “unauthorized touching”. It’s also forcible penetration, and would legally be rape in MD.
Whether it meets the definition of rape in this case or not, the point is that forced digital penetration is not significantly less evil than forced genital penetration. Sexual assault victims are not more traumatized when there is genital penetration than other forms of penetration. It’s absolutely sexual assault and in the same general category as rape.
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Now why are cases like this so rare on a plane? Because it’s a well populated confined space with no chance of escape. Just because something rarely occurs in a certain situation does not mean an occurrence should be considered less than a similar occurrence in a more common setting for it.
In Virginia, this offense would be known as “object sexual penetration,” and, without going into all the permutations of the offense undree the statute (such as age difference, e.g.), the penalty is the same as for rape.
No, my point is that one of the possible justifications for harsh penalties is to discourage an illegal act that otherwise would be common. In the absence of any indication that such an act occurs or is likely to, deterrence for plane rape need not be excessively high, and the norm for lesser sexual molestation as well. The average sentence for rape in the US appears to be 8-9 years. That seems light to me.
I agree that the deterrence for plane rape does not need to be high, but it’s my understanding that the federal rape statute doesn’t just apply to planes, but to other federally controlled locations… like buildings and parking garages. We don’t have separate rape statutes for shopping aisle rape and back alley rape.
Deterring rape in general is the point, not where it specifically occurs.
“The guy in the case at hand had his hands under a sleeping woman’s blouse.”
I think you misread the news piece, which states:
“She awoke to find Aksal’s hands in her shirt AND SHORTS as he asked her to kiss him….” (emphasis added).
Exactly where his hand was in her shorts and what it was doing is not detailed. Either you missed this important fact (it happens) or you are assuming that the hand in her shorts was just resting there in a way wholly unrelated to “rape,” which is a leap I am not willing to take.
Another account that I didn’t link to implied that he was indeed just feeling (it did say “in her shorts,” not, you know), but if it was more than that, I’ll concur that “rape” is not an unreasonable.description. Whether Todd Akin would call it “genuine rape” is a fascinating question. I still would say that life imprisonment, assuming no other convictions of a like nature, would be unjust.I’d give him 5-10 in a hearbeat.
Oh no. You are not dragging me into any discussion involving Todd Akin 🙂
I agree completely that life imprisonment would be an unreasonable penalty on the limited facts available. That said, it’s not unreasonable (or Saddam Hussein-like) for a general sexual assault statute to provide for a maximum penalty of life imprisonment, which could be appropriate under other facts. Would a more specific charging/sentencing program be preferable. Sure. But a preference does not invalidate what is workable, if less than perfect.
Also, I will admit a visceral reaction to several terms you used in the original post, which may have affected my discussion. Thanks for putting up with me.
I was just thrilled to see you posting a comment.