Q: Who are the most common victims of passenger molestation?
A: Physically and, especially, developmentally disabled passengers, most often children. So most molestations happens on general education and special needs schoolbuses, and on paratransit vehicles.
Comment: With a simplistic understanding of courtroom procedures, many perpetrators feel that these individuals will not make credible deponents/witnesses. The surprise is that such individuals who are verbal often make excellent witnesses. And they also draw a jury’s sympathy, which often translates into large verdicts or huge settlements (often after the results of mock trial exercises). As a sweeping generalization from my decade transporting 1100 developmentally-disabled adults a day (plus some infants), they may fib about tiny things. Otherwise, they are obsessively honest, and make terrific witnesses.
Q: Why do drivers and fellow passengers have the confidence to assault and molest passengers?
A: The conduct of both passengers, and drivers and attendants, are rarely monitored – and most perpetrators realize this early in their travel experiences.
Comment: Monitoring is the Achilles Heel of public transportation. While a genuine expert can recite 12 to 15 jury-friendly approaches to monitoring, many or most public transit systems – in virtually every mode – employ none of them.
Q: Why is monitoring not effective even where it exists?
A: For monitoring to be effective, those monitored must know they are being monitored.
Comment: The most effective monitoring tool – the review of driver’s logs (analog or digital) — is almost extinct. When logs are reviewed, drivers are occasionally questioned about tiny deviations (not usually accusations, but answers to which help improve scheduling accuracy and efficiency). Drivers and attendants are usually confronted about their conduct or performance when other forms of monitoring suggest changes should be made.
Q: Why is monitoring such an effective deterrent?
A: Coupled with enforcement, a serious (and especially multifaceted) monitoring effort catches almost everything done wrong or not done properly, if at all.
Comment: Well-versed in log-review (as I was during my decade operating a 70-vehicle fleet providing roughly 1100 round trips a day to developmentally-disabled adults and infants), I personally reviewed over 200,000 paper logs. In an estimated 29 million miles of travel, we never had a single incident of molestation, a single wheelchair tipover (I’ve done about 150 of these as an expert witness) or a single boarding or alighting incident (I’ve done nearly 200 of these as an expert witness) – and had only one serious injury incident — when a driver fell asleep at the wheel, crashed into a tree at 50 mph, and the spine of a lap-belted passenger in a side-facing seat was cracked. But I could tell from log review when my drivers relieved their bladders. And in lawsuits involving molestation, I could usually understand how most drivers spent months slowly deviating from their schedules to “set up” the opportunity they needed to commit their deeds – and had little trouble explaining this to a jury on those few occasions that foolish defendants’ counsel proceeded to trial with such cases.
Q: Why is monitoring of any kind so rare?
A: The agencies responsible for it – whether they provide the service themselves or contract out for it – rarely ask for it, even while it costs little to conduct.
Comment: In some modes – particularly non-emergency medical transportation (NEMT) service – the “lead” or funding agencies have almost universally parceled out the direction of service to “brokers” — which do not provide any service, but which receive (if not steal) most of the budget. The “lead” agencies ultimately responsible do not remotely understand how to design or operate “demand-responsive” (i.e., door-to-door or curb-to-curb) service, are simply thrilled to “wipe their hands of it,” are not held accountable for any efficiency or on-time performance, are indemnified by their brokers, and simply do not care. So they never monitor their brokers, and their brokers rarely if ever monitor their service providers. Further, no brokers I have come across have any remote clue how to design a demand-responsive (i.e., door-to-door or curb-to-curb) transportation system. So if they cannot design a system, they cannot operate it safely, reliably (i.e., with a high level of on-time performance) or efficiently.
Q: Are there any variables that account for passenger assaults?
A: The small sample size I have experienced suggests that they are random, and take all kinds of forms, and involve a wide range of victims.
Comment: For reasons I do not understand, juries are often reticent to blame a transportation system (or its driver) for a passenger-to-passenger assault. And law enforcement officials are only interested in pursuing the perpetrators, not the contributing factors (like poor passenger management, including the drivers’ failure to view the passenger compartment through the vehicle’s interior rear-view mirror – or to care much about what they observe when they do.
Q: How do drivers and passengers get away with passenger molestation?
A: Mostly because of the lack of monitoring, but also (as noted), because they believe that most of the victims will not be believable as deponents, or can easily be cross-examined (neither of which is true).
Comment: There are other constraints in some modes, including the height of seatbacks in schoolbuses and motorcoaches (which make it difficult for drivers to even see smaller children (in schoolbuses) or any passengers (in the high-back seats of motorcoaches, whose seats can be reclined). Interesting, five of the eight states that require seatbelts on large schoolbuses require three-point occupant restraints, and they are required in all motorcoaches. So if they bother to look, drivers can see the shoulder harnesses through their interior rear-view mirrors. Plus, some states (like New York, which requires only lapbelts – which are profoundly dangerous) also require 28-inch-high (“high-back”) seats, further impeding a driver’s ability to monitor passenger behavior (high-back seats provide some important safety benefits). In sparsely-populated states, with schools far apart, a schoolbus may transport students of every age group – a mix that allows older and larger bullies to easily take advantage of younger and smaller victims.
Q: Can a plaintiff’s counsel win a molestation case?
A: Yes. And almost always if he or she engages a genuine transportation expert thoroughly familiar with the mode of transportation involved.
Comment: While many experts understand fixed route transportation (i.e., transit, motorcoach and general education schoolbus service), precious few understand even the rudiments (much less the nuances needed to win or settle a molestation case) of demand-responsive services such as complementary paratransit, non-emergency medical transportation (NEMT), taxicab, TNC (e.g., Uber and Lyft) or special needs pupil transportation – all provided on a door-to-door or curb-to-curb basis.
Q: Can a molestation case bring a plaintiff’s attorney a fortune?
A: Sometimes, yes. Most public transportation molestation victims – already beset with multiple physical, mental and developmental problems – are too traumatized to acknowledge their victimization. So if and when they do, the large frequency of sexual assaults is repulsive to a jury.
Comment: In one molestation case in which I served as the plaintiffs’ expert, a driver of physically- and developmentally-disabled adults molested all six female passengers (not always penally) on every morning and afternoon run…for three years! This was witnessed by several male passengers, all helpless to intervene as all were wheelchair users. Plus any “tattletale” was threatened with death. The perpetrator drove for the largest schoolbus contractor in the country, with obviously the deepest pockets. The defendant’s attorneys could not remotely take a case like this to trial. So the settlement was almost unimaginable.