Written submission from Third Year Law Students,
Durham Law School (SPP0079

1. Background

1.1. As part of the reading for the Law, Sex, and Crime, module at Durham Law School, third year students were tasked with evaluating the relevant legislation and reviewing research evidence concerning sexual harassment in public. A total of 61 students are enrolled on the module.

1.2. Four seminars were held and students in each were asked to centre their discussions around key legislative concerns, with a view to making recommendations to the inquiry.

1.3. Key points in response to the inquiry’s questions were noted during the seminars by Dr. Fiona Vera-Gray, and these notes were sent to all students to agree a consensus.

1.4. The agreed notes were then collated by Dr. Vera-Gray into this submission and sent again to students to confirm what was written was an appropriate reflection of the views and discussion across all four seminar groups.

1.5. As the discussion and the expertise of the student group is in law, this submission will only focus on public sexual harassment and the law.

1.6. The discussion and recommendations here reflect do not reflect the views of Dr. Fiona Vera-Gray. They also do not necessarily reflect the individual views of all students in the module. This submission is an agreed consensus between the students.

2. Executive Summary

2.1. Existing laws in the UK relevant to the sexual harassment of women and girls in public are too narrow and hard to apply because of evidentiary challenges.

2.2. Legal remedies are scattered across disparate pieces of legislation making it hard for victims and perpetrators to know what is a crime.

2.3. Taking account of justice from the victims’ perspective what is wanted is a change to social and gender norms not new criminal laws or ways of framing existing offences, such as the introduction of misogyny as a hate crime.

2.4. Government should invest in long-term attitudinal change campaigns, including advertising in public space directed at potential perpetrators, and include specific lessons on sexual harassment in Relationships and Sex Education (RSE).

3. Existing laws are not appropriate

3.1. There are difficulties in addressing public sexual harassment through the law. The broad range of practices within the category – as well as even within individual practices – make it difficult to draw the clear lines needed to distinguish criminal from non-criminal activity.

3.2. While no specific offence of ‘street harassment’ or ‘public sexual harassment’ exists, existing legislation can be used to respond to some of the practices encompassed under the broad heading of sexual harassment. These are parts of the Sexual Offences Act (2003), in particular Section 3 on sexual assault and Sec 66 on exposure, the Protection from Harassment Act (1997), and Section 5 and 4a of the Public Order Act 1986. However existing laws fail to respond to the breadth of public sexual harassment, and the piecemeal approach of current legislative remedies for public sexual harassment impacts negatively on victim’s certainty in knowing how to report, as well as on policing for knowing what is/isn’t a crime.

3.3. The Protection from Harassment Act doesn’t cover stereotypical street harassment. There are limits as it is a course of conduct offence, meaning the context of most public sexual harassment (being a one-off event between strangers) would not be covered. There are also problems with the need to prove intent and the reasonable person test. Giving how normalised the practices of sexual harassment are, a reasonable person may not believe the acts comprising public sexual harassment are in fact harassment, and the perpetrator may not be motivated by an intent to harm or distress, but rather by cultural norms that give men the entitlement to comment on women. To bring public sexual harassment under the existing Protection from Harassment Act, the course of conduct requirement would need to be removed and replaced with a requirement for evidence of persistence.

3.4. Provisions in the Sexual Offences Act (S3 and S66) are too limited to encompass what is necessary. S3 is limited to sexual touching, which would exclude all forms of non-contact sexual harassment. S66 is limited to exposure and has evidentiary problems in relation to proving the intent was for the exposure to be seen.

3.5. Provisions in the Public Disorder Act S5 and S4a require the words or behaviour to be threatening, abusive, insulting, or disorderly. This excludes practices that could be understood as complimentary such as “hello beautiful”, and do not respond to the ways in which the harms of public sexual harassment are in the message it gives to women about what their value is rather than necessarily what is understood as an abusive or insulting act.

3.6. Despite enforcement and evidentiary problems with addressing public sexual harassment through the law, the law does have a function in establishing the norms of a society. Changes to the law would benefit from the use of one single piece of legislation. This helps to empower victims to use the law as they know what they can report an offence under, and helps policing keep track of what is/isn’t lawful.

3.7. To respond to the problems with existing requirements of intent and motivation, new legislation could take its lead from Article 40 of the Istanbul Convention and focus on the effect of harassment being a violation of “the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.” This is the language used in Peru - “any act impacting the freedom and dignity of movement or another person’s right to physical and moral integrity” – and is closer to naming the harms of public sexual harassment and enshrining the rights of women and girls to public space than any existing UK legislation.

3.8. New laws however must be carefully considered, particularly in relation to the penalties to be introduced. Fines such as those introduced in countries such as Portugal and Belgium in other countries (Portugal, Belgium) if introduced would need to be proportional to income. A preferred option would be compulsory education workshops as a penalty in place of a fine. These workshops should be designed by specialists and could include the voices of women and girls talking about the harms of sexual harassment in public.

3.9. Any changes to law also requires investment in public awareness campaigns to publicise the change and explain the harms. Education and training would be needed for law officers to take it seriously and know the harms. Over-regulating but not informing the public will not make the cultural change necessary.

4. Justice from the victim’s perspective

4.1. The response to public sexual harassment needs to take account of intersectionality, in particular the ways in which women and girls from Muslim backgrounds and/or from Black and minority ethnic backgrounds may be targeted for forms of sexual harassment that are also fuelled by racism or religious animosity. Changes to law should centre the voices of the most marginalised groups in society to ensure there is not a disproportionate impact on these groups.

4.2. Changes to law also needs to take account of the fact that women from communities where men are disproportionally the subject of state violence or women with insecure immigration status for example may be less likely than White British women to want to use legal remedies for harms they experience.

4.3. Research on justice from the victim’s perspective has shown that victims of public sexual harassment do not want more laws, they want education and change to cultural norms.[1] Testimonies of women who have experienced racist sexual harassment in public also do not identify the need for new laws and focus instead on public education and prevention.[2] This suggests government efforts should focus on awareness-raising and education either alongside or instead of changing the law.

5. Misogyny as a hate crime does not address these problems

5.1. There are benefits to introducing misogyny as a hate crime such as an increased ability to monitor incidence, and the ability to be used for enhanced sentencing. Also the hate crime framing has a unique ability to capture way oppression interlocks meaning someone may be targeted for belonging in more than one category.

5.2. However, in itself it does not create a new law and as such introducing misogyny as a hate crime does not mean acts that are lawful now would become unlawful. This means that the law would still not be appropriate in responding to public sexual harassment. The introduction of misogyny as a hate crime also does not address many of the problems with using the law to respond to sexual harassment in public such as evidentiary and intent issues.

5.3. Many victims of sexual harassment in public do not experience what happens to them as being motivated by hate or prejudice and so may not meet the requirement of hate crime legislation for the act to be perceived as motivated by prejudice. Much of the speech that comprises public sexual harassment is context-specific, meaning that in some contexts the same speech acts would not be considered offensive. This could mean that sexual harassment would be under-reported in a frame that labelled it as a hate crime.

6. Recommendations: “Better education and clearer legislation”

6.1. The major focus of Government needs to be on changing public attitudes through awareness and education. Age-appropriate lessons should be given on public sexual harassment in Relationships and Sex education (RSE).

6.2. A new offence should be introduced that makes unlawful “any act impacting the freedom and dignity of movement or another person’s right to physical and moral integrity.” The penalty should be mandatory attendance at an awareness/education course or a proportional fine. The benefit of a single piece of is that it empowers victims as know what they can do. The existing Protection from Harassment Act should be changed from a course of conduct offence to evidence of persistence.

6.3. In order to ensure education reaches those outside of educational instutitions, such as adults, government should invest in a long-term attitudinal change campaign. Campaigns should aim to name the behaviour, identify its harms, and send a strong message that this is unacceptable. Public space advertising should be used, including on public transport, and this could be used in conjunction with advertising a new offence.

6.4.  An online hub should be created which would be monitored by police. Users could anonymously submit information such as location, perpetrator characteristics, and what happened, to enable data to be collected and to increase police presence in identified “hot spots”. An option to be contacted if you wanted to officially report what happened (and if it was an offence) could be added.

March 2018