Several legal scholars have examined criminal and civil law to see if either can be used to prosecute street harassers, most notably legal scholars Cynthia Grant Bowman in her 1993 Harvard Law Journal article “Street Harassment and the Informal Ghettoization of Women,” and Tiffany Heben in her 1994 South California’s Review of Law and Women’s Studies article “A Radical Reshaping of the Law: Interpreting and Remedying Street Harassment.”
Their conclusion, like ours, is that some forms of street harassment are crimes under current laws, including sexual touching, masturbating, and direct threats; however, people can engage in the most common types of street harassment like whistling and commenting on a person’s appearance without legal consequences. They suggested ways to redefine existing laws to encompass street harassment, guidelines for creating new ordinances, and they proposed their own.
From her research, Bowman determined that the goal of any new law should be the general deterrence of harassing behavior toward women through realistic and effective remedies. To that end, she came up with several factors that need to inform the creation of a law.
* The remedy should not define the offense in terms based on the intent of the harasser; it should incorporate a “reasonable woman” standard as to the offensiveness of the conduct and to the reasonableness of the woman’s response to it.
* The law should apply to both verbal and non-verbal conduct.
* The ability to press charges should not require a course of conduct (meaning the person had to have committed the harassment more than once).
* The law’s application needs to be limited to speech that is not general public discourse but street harassment.
* Pressing charges needs to be is cheap enough that women can realistically do it.
* The consequences with being charged of harassment must be great enough that they deter most people from committing the crime [but not so great that people don’t use it for fear of ruining someone’s life].
We agree with those recommendations. Additionally, we have recommendations for how to strengthen the laws most frequently covered in this toolkit. (Notably, we are not addressing indecent exposure laws as those are uniformly useful across the states.)
Verbal Harassment
While the disorderly conduct, disturbing the peace and harassment laws in some states do a good job of addressing forms of verbal harassment, those laws in other states could be strengthened by:
- Uniformly addressing “abusive, violent, obscene or profane language” in the language of the statute. Many of these laws already do, so it would be a matter of adding it to those that do not.
- Removing any mention of the intent of the perpetrator; regardless of what his/her intent was, the impact it has on the harassed person is what matters.
- Removing the requirement that it must provoke a fight or violence since women who are verbally street harassed rarely respond with violence.
Many harassment laws only address “threats of bodily harm” or “threats of bodily injury,” but we suggest expanding the actions to include sexually explicit language. Such language is also threatening to many people, especially women, even if it does not include a direct threat to touch them.
Also, many general harassment laws only cover repeated unwanted communication by phone or electronic communication. Broadening those laws to include repeated unwanted communication in public spaces would make it more applicable to street harassment.
Unlawful Filming/Photographing
Most states now address the new problem of people taking photos or video footage of other people’s intimate body parts while in public spaces, including “up-skirt” and “down-blouse” footage in their voyeurism or violation of privacy laws. The states that do not have laws that cover this behavior should expand their existing laws to do so.
Sample language they could add to their laws is “it is unlawful for anyone to intentionally view, photograph, videotape, film, webcast or record the intimate areas of a non-consenting person’s body, including a person’s naked or undergarment-clad genital area, groin, buttocks, anus or breasts.”
Following
All states have a stalking law – and some also have a harassment law – that addresses someone following another person at least twice. These laws were typically written with abusive intimate partners or family members in mind, so they do not apply well to street harassment since it is less likely that a harasser will follow someone more than once. Being followed “just” once can still be very scary.
In Stop Street Harassment’s research, of 811 women, 75% of the respondents said they had been followed by a stranger at least once. Overwhelmingly, they said that being followed made them fearful and upset and women rated it second, behind assault, as the worst type of harassment they had experienced.
In five states, Arizona, Colorado, Kentucky, Pennsylvania, and Minnesota, the law states that someone only needs to follow another person once for the action to constitute a crime. Other states could follow suit. We recommend they incorporate the language into their harassment or disorderly conduct laws, rather than revising the stalking laws.
Additionally, some states use the “reasonable man” standard in laws that address being followed, stating that the action(s) must make a reasonable person fearful of bodily injury or death. States should either eliminate this requirement, or set the bar for enforcement at a reasonable woman standard since women are far more likely than men to fear being abducted, raped, and murdered by someone following them.
Groping
Most states have laws addressing non-consensual sexual contact that include groping and other unwanted touching that happens in public spaces. A few states could do a better job of addressing the reality of what happens by eliminating the requirement that the victim needed to clearly not withhold consent.
This requirement applies better when it is between people who know each other, but if someone grabs your butt while you are on the bus or grabs your breasts while passing you on the street, there isn’t an opportunity to say no or to clearly state one’s desire to not be touched. Thus, the law should reflect that when people are in a public space, their default desire is to not be sexually touched by a stranger.
Hate Crimes
The states that have not passed a hate crime law should do so. Additionally, not all states’ hate crime laws mention sexual orientation or gender expression, and even fewer include sex or gender as a form of bias. Gender-based street harassment is motivated by these biases and is a form of discrimination based on sex, gender, and often sexual orientation or gender expression. Broadening hate crimes laws to incorporate these biases would allow the laws to better address street harassment.
Return to the Street Harassment and the Law Landing Page >
