By Ryan Musser
According to the U.S. Federal Bureau of Investigation (FBI), reports of minors and women sexually assaulted on flights have risen dramatically in the last few years. It remains unclear whether this is the result of more assaults or an increase in victims’ courage to report as inspired by the #MeToo movement. In any case, America has been given notice of a truly horrifying problem and a lack of any real hope for victims. This Comment suggests that passenger safety can be improved by creating an Offender No-Fly List for those who have been convicted of inflight sexual assaults.
A flight’s path through several state jurisdictions means that a victim’s rights to criminal and civil remedies change depending on the flight’s departure location, destination, and path through the air. Additionally, although federal law criminalizes in-flight assaults, prosecutors often charge offenders with lesser state-law actions that provide offenders with the opportunity to repeatedly offend. Thus, repeat offenders sometimes walk away with seemingly few consequences.
Those seeking or enticed by crimes of opportunity will certainly find them in a flight’s unique environment. Falling asleep in a dimly lit cabin only a few inches from a complete stranger will always have inherent risk. However, society can make flights safer by enforcing uniform federal penalties that will deter possible offenders and prohibit convicted offenders from flying for a predetermined time.
This Comment addresses various ways that the United States has handled other threats to passenger safety and suggests a similar, but tailored approach to deterring in-flight sexual assaults. For example, the government’s use of the Terrorist No-Fly List, though arguably effective, raises serious constitutional issues as it seems to penalize innocent citizens in violation of procedural, if not substantive, due process.
Unlike the Terrorist No-Fly List, the Offender No-Fly List’s travel limitations are not subject to the same due process challenges. This solution punishes offenders, protects possible victims, and reduces recidivism by: (1) preventing offenders from flying for a set time; (2) motivating offenders to seek treatment; and (3) creating a unified database that enhances punishment for repeat offenders.
The United States has an opportunity to respond to the cries of these victims. It has the chance to recognize the complexity of the problem and do more than study it. Right now, Congress can make flights safer for everyone without violating the constitutional rights of anyone by implementing the Offender No-Fly List. Years from now, if sexual assaults repeatedly plague minors and women on flights across this country, it will only be because we failed to act now.
Ryan Musser, Comment, #MeToo at 35,000 Feet: Reducing the Risk of In-Flight Sexual Assaults, 84 J. Air L. & Com. 227 (2019).