Remember how the man who masturbated on three different female subway passengers—and ejaculated on them—in crowded train cars was indicted last year? And how he was tracked down through DNA evidence? Well, here's a terrible update. The guy is out free on three years' probation, after only one year behind bars—for time served—because the Court of Appeals considers it a misdemeanor, not a felony (a felony sentences carry up to seven years in prison).
Sure, Darnell Hardware "rubbed his penis against a woman in a crowded subway car, ejaculated on her, and fled the subway when the doors opened" in three different incidents between 2002 and 2006 (on a northbound Lexington Avenue express between 14th and 42nd Streets; at 6 p.m. on a northbound 1 train; and at 7:30 a.m. near 86th Street on a northbound Lexington Avenue express). And all the victims were young women who couldn't move away because the trains were so crowded. But, thanks to a 2010 decision from the Court of Appeals, that kind of offense isn't considered first-degree sex abuse because NY's highest court doesn't consider the assault to be by "forcible compulsion."
In the 2010 decision, the Court of Appeals dismissed a felony indictment against Jason Mack, a 300-pound, 5'9" 29-year-old, who rubbed himself against 14-year-old girl who was headed to school—and she was 7 inches shorter and half his weight—while on a 1 train back in 2002. The victim, Melida Galvez, felt him making "some kind of weird movements" and touching her back, but she thought it was because the train was so crowded. Every time she turned around, the movements and touching stopped. When she got out of the train, Galvez found a stain on her jeans and jacket and reported it to her school, which then contacted the police. Mack was found through a DNA hit in 2008.
The Manhattan DA's office had argued that the "human wall" created by the subway's crowded conditions resulted in conditions where the girl was trapped and Mack's size and actions constituted "forcible compulsion." But a judge, Justice Renee White, threw out felony charges against Mack, ruling, "The mere close presence of many other passengers in the train is not sufficient to establish the requisite use of forcible compulsion by the defendant," and then the Court of Appeals' majority decision felt that there wasn't enough evidence that Mack used "physical force" and that the 14-year-old felt "threatened." For more of the insanity, here's Manhattan DA Cyrus Vance's brief to reinstate the felony indictment against Mack last year:
The court hasn't moved to reinstate the indictment yet. Perhaps Vance should invite the Appeals Court justices for a ride on a rush hour subway so they can experience the horror of a crowded train car and then make a decision about whether a 14-year-old girl, half the size of a man twice her age, might feel threatened. In the meantime, ladies—wear full-body rain gear.