In May of this year, Labour published a document, ambitiously titled “Labour’s Ending Violence Against Women Green Paper”. The introduction cites worrying statistics about the number of women who suffer sexual assault, rape and domestic violence. The paper proposes a range of measures to tackle these problems. From a criminal justice perspective, one of the most eye-catching proposals is the introduction of a wholly new criminal offence, outlawing street harassment of women. Whilst the proposal is popular with campaigners on women’s rights this article argues that the creation of new offences into an already crowded arena of overlapping legislative provisions is neither necessary nor desirable.
The proposal to criminalise street harassment has few details at present. The short paragraph justifying the proposal in the green paper refers to the number of women who have been “catcalled, followed, groped, flashed or upskirted”, suggesting that these five types of street harassment would be criminalised by the new offence. It states that Labour have taken inspiration from the French model. In France, a new article was inserted into the penal code in August 2018, creating an offence of sexist or sexual outrage. Broadly, this criminalises forcing on a person any sexist / sexual words or behavior which is detrimental to their dignity, degrading, humiliating, or creates an intimidating, hostile or offensive atmosphere.
If a new English offence were to be based on this sort of wording, there would be substantial overlap with existing criminal offences. In relation to the five types of street harassment mentioned by name in the green paper, three are already clearly covered by existing criminal offences. These are: groping (already covered by sexual assault); flashing (already covered by outraging public decency); and upskirting (a crime under s67A Sexual Offences Act 2003 since December 2020). It is notable that the first fine issued under the new French law was to a man who slapped a woman’s buttocks on a bus. This, again, could already be prosecuted in England as an assault or sexual assault.
But what about catcalling and following, the other two types of street harassment identified in the green paper? Would a new offence criminalising this conduct fill a legislative gap?
Some instances of catcalling, although arguably not all, would be covered by the existing offence of causing harassment, alarm or distress, contrary to s5 Public Order Act 1986. This offence criminalises threatening or abusive words or behaviour, or disorderly behaviour, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. It can be committed in public or private (except when both people are in a dwelling). There is significant scope for debate as to what types of catcalling are caught by this offence. By way of example, someone catcalling to purportedly compliment a passing woman’s appearance would unlikely amount to a s5 offence, it being neither threatening nor abusive. However, if such a comment was accompanied by degrading swearwords, this would arguably become “abusive”. When verbal street harassment crosses the line into threatening, abusive or disorderly behaviour is plainly a question capable of widely differing interpretations.
Until 2014, the s5 offence was much wider in its scope, criminalising “insulting” words and behaviour, as well as abusive and threatening ones. The removal of the word “insulting” was not proposed or originally supported by the government of the day; it was removed by way of a Lords amendment to the Crime and Courts Bill 2013. However, once the amendment was made in the Lords, the government was persuaded not to re-amend the bill in the Commons seek to remove it. The Home Secretary at the time, Theresa May, explained to the House of Commons that “Looking at past cases, the Director of Public Prosecutions could not identify any case where the behaviour leading to a conviction could not be described as ‘abusive’ as well as ‘insulting’. He has stated that ‘the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions.’ On that basis, the Government are not minded to challenge the amendment.” The DPP at the time was none other than Kier Starmer, now leader of the Labour Party.
With the benefit of hindsight, it is not clear that the advice the government received in 2013 was correct. In 2019, the High Court considered a judicial review of the then-DPP’s decision to take over and discontinue a prosecution of protestors for anti-Zionist comments (Campaign Against Anti-Semitism v DPP). In his judgment, Lord Justice Hickinbottom drew a clear distinction between insulting and abusive behaviour, stating that “offensive statements based upon dubious or false premises are not necessarily abusive within section 5 of the 1986 Act”. On a common sense view, this distinction applies with equal force to misogynist street harassment. For example, there is a good case that catcalling is insulting to women, but is not, in and of itself, abusive. In this context, Labour’s proposed street harassment offence looks a lot like an attempt to fill the legislative gap left following the Starmer-sanctioned narrowing of the s5 offence.
Indeed, Labour’s proposal to criminalise catcalling, whilst presented as a new and radical change in the law, could be more straightforwardly achieved by simply reverting to the pre-2014 wording of the s5 offence, so that it extends to insulting as well as abusive words and behaviour. It would then be possible, if considered desirable, to introduce an aggravated version of the s5 offence – “aggravated by misogyny” – to mirror the racially aggravated version of the offence which already exists. Indeed, adding gender to the list of protected characteristics according to which a judge can aggravate sentence if they are linked to the crime, is one of the other green paper proposals.
The reversion to the old s5 wording would not, however, necessarily deal with the fifth type of street harassment identified in the green paper, namely “following”. Merely following a woman down the street (without more) is unlikely to amount to insulting, let alone abusive behaviour (although following, in some more serious circumstances, might amount to “threatening” behaviour). Criminalising this aspect of street harassment therefore would require a bespoke offence, as proposed.
For behaviour of this nature though, it is very hard to conceptualise how such an offence could be drafted without it being unacceptably broad. “Creating an intimidating atmosphere” is part of the French offence, but this is a highly subjective basis from which to convict someone of a criminal offence. By way of example, what mens rea (state of mind) should the perpetrator possess to be guilty? Should it be that the perpetrator was aware that their behaviour was intimidating? If so, it would be an easy defence to run in most low-level street harassment cases that the defendant did not realise that his behaviour was intimidating. The alternative is that they ought to have been aware their behaviour would intimidate. However, it is not clear how one would set such an objective standard when different women will react differently to the same behaviour. Given this sort of difficulty, one returns to the existing s5 offence – whilst “insulting” may also be a subjective term, it is at least one already well understood by the courts.
Whether or not Labour are right to suggest criminalising street harassment is an effective strategy in changing misogynist societal attitudes is beyond the scope of this article. From a criminal justice perspective, however, the proposal is something of an anomaly. The green paper rightly focuses on the failings of the criminal justice system when it comes to serious violence against women, namely sexual assaults, rape, and domestic violence. It correctly identifies in the introduction of the “Criminal justice system” section what many criminal practitioners would identify as the real issue in this area: “After a decade of underfunding, the criminal justice system has struggled to cope with the growing number of violence against women and girls (VAWG) offences. As a result, while reports to the police have been increasing, there have been significant declines in referrals, charges, prosecutions, and convictions for VAWG offences in recent years.” The reality is that whilst the police and CPS lack the resources to bring effective prosecutions against domestic abusers and rapists, introducing yet another new criminal offence is likely to result in a further diversion of resources away from this serious violence, and would therefore exacerbate, rather than solve, the issues identified.
Whilst the criminalisation of street harassment is an eye-catching proposal, the reality is that much of the behaviour it would criminalise is already covered by other criminal offences, or could be addressed by a less headline-grabbing tweak to the existing law. In truth, the laudable aim of tackling violence against women requires a focus on resourcing the prosecution of existing criminal offences, not the creation of new ones.
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