Austin criminal defense lawyer Jamie Spenser sent me an  AP story about guy who just can’t seem to stop rubbing himself up against women in the New York subway.  The subways have long been a notorious locale for women, where men rubbing up against them is a daily occurrence.  Of course, everyone rubs up against someone on the New York subway, because it’s like being in a municipal sardine can most of the time.

But that doesn’t mean that it’s innocent rubbing, and it’s frequently not.  For someone inclined to rub, it’s heaven.  Too crowded to be noticed, too easy to claim it was innocent, men who want to rub have a perfect opportunity to do so.  Most women I know in New York say they have been deliberately “rubbed” in the subway.  It’s not the same as rape, and the women I know don’t seem to get too upset over it, but it’s still disconcerting and unpleasant, occasionally shocking. 

There are also times when a woman rubs against a man, I might add, but rarely do these rubs result in anything other than a humorous story.

But this article was about a fellow named Freddie Johnson, who probably buys the unlimited Metrocard.

Johnson has been arrested a staggering 53 times – the majority for allegedly groping women on subway trains.

In his latest arrest, Johnson was being followed by plainclothes officers who recognized him from police photos. He was charged with persistent sexual abuse, and if convicted this time he could be sent away for life.

Don’t let the “groping” language fool you.  He’s not reaching out with his hand to grab or touch another person.  He’s a rubber.  He gets on the train and he rubs.  He denies that he did any rubbing this time, in an interview with the Daily News.

In a jail interview with the Daily News of New York, Johnson said he never touched that woman. However, prosecutors have he was carrying a messenger bag over the front of his torso, slid it to the back to illegally rub up against the woman, and then moved the bag back to the front to avoid being caught.

Unlike the past, however, this may be a far more serious rub than he’s used to.  Having gotten out of prison on March 25th after a 4 year bit, the authorities have had enough of Freddie.  But what to do?

The Attorney General wanted to civilly commit Freddie, but a judge refused, putting him on strict supervision instead.  And now he’s back in trouble, only a few weeks later.

Obviously, I have no idea whether Freddie committed this offense.  Maybe the cops who were following Freddie, having recognized him from photos, saw groping because they expected to see groping.  After all, Freddie is not likely to be the kind of guy to catch a break from the cops.

There’s always the option of treatment, but that’s an expensive proposition, beds are in short supply and, frankly, Freddie just isn’t that bad a guy to merit that level of concern.

The goal of the state’s Sex Offender Management and Treatment Act that went into effect last April is to protect society by keeping the most dangerous sex offenders off the streets, and provide long-term specialized treatment to see that they don’t repeat their crimes. To qualify, a criminal must have a “mental abnormality,” and be “predisposed” to repeat the offense, prosecutors said.

Currently, 10 percent of sex abuse cases are referred as possibilities for the program, on par with other states that have similar laws, the health department report said. It costs more than $100,000 per person per year to confine them. And there is currently bed space for 181 offenders at three facilities around the state

The District Attorney, lacking any other bright idea, wants to lock Freddie up for life this time.

But Johnson may end up behind bars for good if he’s convicted in the latest incident, because prosecutors say they will push for more serious punishment given his rap sheet. That means he could get up to life in prison.

While it’s unclear how serious a threat this presents, since it’s not quite clear that any judge is going to agree that a non-violent subway rubber felons in prison for the rest of his life, this situation does demonstrate the lack of viable and effective options for minor-league sex offenders. 

Deterrence hasn’t worked.  Rehabilitation is a total failure.  Isolation is too expensive and just over the top.  Then what do we do with Freddie?  If he was a rapist, no one would question throwing the book at him.  But he doesn’t cause physical harm.  He isn’t violent.  He’s just a rubber.  Half the women he rubs probably don’t even know that it happened; it’s just a typical day on the New York subway.

He’s harmless?  No, he is not harmless.  He’s just not particularly harmful.

It’s unhelpful for someone to talk about how Freddie is sick, and can’t control himself.  Maybe, but so what?  Why does Freddie’s “sickness” mean that women on the subway have to be subjected to being rubbed by him over and over. 

We don’t seem to have a place for the Freddies of New York.  I don’t know if there is any good answer to this problem.  Those who feel sorry for Freddie are wrong.  Those who want to put Freddie in prison for life are wrong.  But that leaves us without any real way to deal with Freddie and protect the victims from Freddie.