Stephanie Cumings was riding an Orange Line train in the middle of the afternoon in May near Falls Church when a man sitting across from her stuck his hand in his pants and started masturbating.
The fact that his hands were in his pants would prove to be important legally. But at that moment, Cumings was focused on his face.
“The guy was pretty scary,” she said in an email. “He was giving me this real menacing look.”
As disturbing as that experience was, Metro’s response was just as unsettling. Cumings complained via an online form used by Metro as part of its campaign to encourage riders to report sexual harassment. It wasn’t clear that what she saw “rises to the level of a criminal act,” a Metro transit Police sergeant wrote back.
“What you described is indeed a criminal act in D.C. Not in Virginia and it can be murky in Maryland," he added, saying he’d consulted with detectives.
“It was very bizarre to be told public masturbating isn’t a crime,” Cumings said.
The email exchange raised a number of issues. For one thing, Virginia attorneys, including Arlington County prosecutors, said masturbating on the Metro indeed is a crime in the commonwealth.
“If they’re going to tell someone what happened to them isn’t a crime, they should be sure they’re right,” Cumings said.
As crazy as it seems, while attorneys agree that the incident was clearly a crime if the train was in the District, the law is at best “murky” in Maryland. Montgomery County prosecutors acknowledge that masturbating on Metro isn’t considered indecent exposure if the train is in Maryland — and if genitals aren’t exposed.
That’s because Maryland law doesn’t spell out what’s considered indecent exposure. Defining the crime has been left up to the courts, said Randolph Rice, a Baltimore defense attorney who has represented defendants in indecent exposure cases. He said Maryland juries are generally instructed that three things have to be in play for someone to commit indecent exposure: First, the act has to occur in a public place, like on Metro. Second, the person doing the exposing has to have intended for someone to see it. Finally, private parts must be displayed.
Because the man on the Orange Line didn’t expose himself, Rice said, his actions weren’t criminal in Maryland.
“Is this offensive to society? Yes,” Rice said. “Is it a crime? No.”
It is possible the man could have been prosecuted for disorderly conduct, said Seth Zucker, spokesman for the office of the state’s attorney in Montgomery County. But Rice, a former Baltimore County assistant state’s attorney, called that “a stretch” because he’s never seen the charge used to prosecute public masturbation.
“This is something that should be changed,” said Lisae Jordan, executive director and counsel for the Maryland Coalition Against Sexual Assault. Upon reviewing the laws at DC Rider’s request, she agreed that what Cumings saw wouldn’t violate Maryland decency laws.
“Public masturbation is intimidating, inappropriate and should be a crime,” she said.
Asked for comment, spokeswoman Sherri Ly said: “We are unable to comment on legal interpretation,” noting that officers who have to enforce sometimes conflicting laws in the areas through which trains run attend multiple police academies and are trained on the differences in laws between jurisdictions.
“Transit Police enforce the laws of each jurisdiction as they are written," she said. "There are often differences, not just in this area.”
But in Virginia, where the incident occurred, attorneys — including Arlington County prosecutors — disagree that incidents like what happened to Cumings aren’t crimes, though each case is different.
Amelia Nemitz, assistant commonwealth attorney for Arlington County, said Virginia law does prohibit masturbating or simulating masturbation ”in any public place where others are present, intending that he be seen by others.”
Unlike Maryland, Virginia law “does not explicitly require the exposure of the genitalia as an element of the crime,” Nemitz said.
In addition, Nemitz and Michelle Derrico, a Roanoke defense attorney who has handled indecent exposure cases, said the man’s masturbation could also be a violation of Virginia law prohibiting the “obscene display or exposure of his person.” In a 2005 ruling, in Moses v. Commonwealth, the Virginia Court of Appeals ruled that genitals do not have to have to be displayed for someone to be convicted of indecent exposure.
In that case, Kenneth Samuel Moses admitted to sticking his hand into his pants and rubbing his penis while talking to a 10-year-old girl in the checkout line of a Walmart and while repeatedly walking past an 11-year-old girl at a K-Mart. The court reasoned in part that even though he didn’t expose himself, it was still an obscene display in the same way that a robber can “display” that they have a gun without taking it out of their pocket.
The law is clearer in the District, saying specifically that it is unlawful for a person “to engage in masturbation” in public. “There is no requirement of visible genitalia,” said Robert Marus, a spokesman for D.C. Attorney General Karl Racine.
The Metro police sergeant did invite Cumings to file a report, saying, “No one should be subjected to that type of behavior on their commute.”
But after being told it wasn’t a crime, Cumings never followed up.
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