TSA "Enhanced Patdown" - a Form of Sexual Assault?

On the surface, government-authorized TSA groping seems like it falls on the spectrum of sexual assault. Ethically, it definitely violates consent. Legally, the situation is murkier.

In my jurisdiction (Ohio), “sexual imposition” (Ohio Revised Code 2907.06) seems applicable, if you read it in isolation from the rest of the code. Its definition begins:

(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

(1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard.

I think it’s hard to argue that the TSA and its officers are not acting recklessly. It should be obvious to any sentient person that groping of breasts and genitals is will be experienced as offensive.

Furthermore, you can’t really make the case that no assault is occurring because passengers freely consent to the procedures. The only way I can travel from Ohio to California to visit my family next month is by air – period. I need to see my dad. The TSA is presenting people with a “choice” of being stripped naked by the body-scan machines, or undergoing an “enhanced patdown,” which amounts to groping by a stranger – or not getting on the plane. That is no choice at all. Moreover, as of October 21, signs at the security checkpoints in the Columbus airport said nothing about what alternative screening would entail. They most certainly did not warn passengers that their genitals would be touched. Passengers are being taken completely by surprise when that occurs. Thus, ORC 2907.06 (A) (3) would apparently apply:

(3) The offender knows that the other person, or one of the other persons, submits because of being unaware of the sexual contact.

But here’s a wrinkle. Ohio law defines “sexual contact” in pretty narrow terms:

ORC 2907.01(B): “Sexual contact” means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. [my emphasis]

In other words, the law has a mens rea requirement that limits it to cases where the perpetrator is getting off on the touching.

The TSA will of course argue that there’s no sexual intent or arousal and thus the procedure doesn’t amount to sexual assault. In fact, that’s exactly what TSA minion “Blogger Bob” has been asserting at the official TSA blog:

Also, there is no fondling, squeezing, groping, or any sort of sexual assault taking place at airports. You have a professional workforce carrying out procedures they were trained to perform to keep aviation security safe.

No “groping”? That’s an outright lie.

Does professionalism and training eliminate the possibility that at least some TSA employees will get a sexual kick from their groping? Of course not. Problem is, we can’t know who’s secretly getting some jollies and who isn’t. Unless a TSA officer makes crude comments in front of witnesses, you’ve got no case under Ohio law.

But here’s another wrinkle. Federal law takes a broader view of “sexual contact.” Here’s how U.S. Code Chapter 190A, dealing with “sexual abuse,” defines it in Section 2246 (3):

the term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person

Note that humiliation, harassment, and degradation all fall within the law’s definition. As Jeffrey Goldberg reports, the intent of the TSA is that “enhanced patdowns” will humiliate and harass flyers so that we’ll all march docilely through the body-scanners:

I asked him [the TSA officer] if he was looking forward to conducting the full-on pat-downs. “Nobody’s going to do it,” he said, “once they find out that we’re going to do.”

In other words, people, when faced with a choice, will inevitably choose the Dick-Measuring Device over molestation? “That’s what we’re hoping for. We’re trying to get everyone into the machine.” He called over a colleague. “Tell him what you call the back-scatter,” he said. “The Dick-Measuring Device,” I said. “That’s the truth,” the other officer responded.

So the intent to humiliate, harass, and degrade is definitely present – as a matter of policy! The problem here is that (as far as I understand it) federal law only applies to certain highly-circumscribed locations, including an airplane in flight or federal prisons. Even though the TSA is a federal agency, it wouldn’t necessarily be subject to this definition.

But why don’t state laws take on this broader definition? I’d love to see it adopted in every state. We can all think of instances where it’s not clear whether a groper is getting a sexual buzz or is just power-tripping. Your average public-transit groper might fall into this gray area. (And while we’re at it, some cases of medical assault – in childbirth or otherwise – could fall under this expanded definition, too, as long as they involve intent to humiliate or degrade.)

Broadening the definition to include “an intent to abuse, humiliate, harass, and degrade” wouldn’t eliminate a mens rea requirement. It would simply update the law to acknowledge that the motives behind sexual assault are a muddy mixture of power and sex.

In short, I don’t think we can make a case, legally, to try TSA officials (be they policymakers or lackeys) on sexual assault. We can make an excellent case for reforming definitions of sexual assault.

So do we have any legal recourse when it comes to TSA groping?

Well, I’d argue that routine molestation of passengers is unconstitutional. To me, it’s blindingly obvious that “enhanced patdowns” violate the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There’s no probable cause. No warrants have been issued. I guess some people might consider groping a “reasonable” response to terrorism. If so, why not permit cavity searches as well? Surely they’d be more likely to catch the next would-be bomber.

I really hope the ACLU will take this on. So far, they’re just considering possible action.

[Standard disclaimer: I am not trained as a lawyer! This above represents my best understanding as a layperson.]