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NY CLS Penal ß 240
ß 240.26. Harassment in the second degree
A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:
1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.
Subdivisions two and three of this section shall not apply to activities regulated by the national labor relations act, as amended, the railway labor act, as amended, or the federal employment labor management act, as amended.
Harassment in the second degree is a violation.
ß 240.30. Aggravated harassment in the second degree
A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:
1. [fig 1] Either
(a) communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or
(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or
2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or
3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or
4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years.
Aggravated harassment in the second degree is a class A misdemeanor.
The law has historically failed to take seriously numerous issues affecting women’s lives, and street harassment is no exception. Although several legal remedies could potentially be employed to combat street harassment, the current state of the legal system makes success highly unlikely.
Judges, legislators, and other decision-makers—mostly male—have generally understood street harassment as a trivial occurrence and thus not within the proper scope of the law. In turn, even laws already on the books that prohibit intimidation and harassment are rarely interpreted to address the harms of street harassment experienced by women. The application of existing legal remedies to street harassment experienced by LGBTQ individuals is an even more remote possibility, although legislation prohibiting hate crimes and hate speech may provide additional recourse in these cases. For more information on this, click here.
Given the shortcomings of the law in this arena, a number of legal scholars and activists have suggested specific legal reforms that have yet to be implemented. For a thorough review of current legal concepts used against street harassment and their failures, as well as proposed remedies, see Cynthia Grant Bowman’s “Street Harassment and the Informal Ghettoization of Women,” published in the Harvard Law Review and available here.
Current Remedies and Their Failures
Currently, a number of legal tools exist to combat street harassment. While some of these have proved successful on occasion, none are an effective remedy in part due to factors described below. It should be noted, however, that there exists one particular area where women have been extended greater protection: common carriers (buses, trains, and other transportation forms) and hotel guest situations. Women may recover damages more readily if harassed by an employee—or even another patron—of a common carrier or hotel. More information on this follows below.
Although they do not provide monetary damage awards, criminal remedies include the advantage of an attorney provided by the state free of charge. However, the judges, state attorneys, and police officers responsible for criminal street harassment cases are the same personnel who have often notoriously failed to take seriously even cases of brutal sexual assault. Thus, women may be reluctant or unable to bring such cases in criminal court.
Potential criminal remedies include:
Civil remedies have the benefit of monetary compensation in the form of damages. If sufficiently large, such damages may provide a larger deterrent than criminal prosecution alone.
Potential civil remedies include:
Failures of Current Remedies
None of these remedies have yet been very useful in combating street harassment. This is in large part due to the effects of racism and sexism on the courts’ application of the law.
Consider an early criminal case in which the North Carolina Supreme Court upheld the assault conviction of a black man who harassed a fifteen-year-old white girl on the street. In its decision, the court stated, “[a] negro man, using this foul indecent language towards a young white girl, as a matter of common knowledge, would create apprehension and fear.” State v. Williams, 120 S.E. 224, 228 (N.C. 1923).
However, courts have been willing to react quite differently when the harasser is white and the targeted woman is black. In one New York criminal harassment case, the defendant, described by the court as a “lone white suburban male,” backed his “expensive foreign car” along a curb at 3 a.m. and solicited three black women he allegedly believed to be prostitutes. Harassment charges against him were dismissed, though, on the grounds that it was not his intent to annoy, but only to seek “female companionship.” This decision neatly dovetails with the common racist stereotypes regarding the sexual promiscuity and accessibility of women of color.
Sexism and the “Reasonable Man” Standard
New York, like a number of states, actually has a statute that specifically prohibits harassment. According to the court in the above case, however, although the man’s behavior might technically be prohibited by the statute, the statute must be read as barring only “‘language or conduct . . . by its nature . . . of a sort that is a substantial interference with (our old friend) the reasonable man.’” People v. Malausky, 485 N.Y.S.2d 925, 927-28 (Rochester City Ct. 1985).
This is known as the “reasonable man standard,” a legal decision-making approach in which the court asks how a reasonable man would act under the circumstances. Although today the terminology has been altered to “reasonable person,” decision-makers nevertheless often ignore the experiences of women and other historically subordinated groups in applying this standard.
In this case, for instance, the court felt that “a reasonable man” would not consider the solicitation to prostitution by a wealthy white man on the street at night a substantial interference for a black woman. The court’s old friend “the reasonable man” is clearly no friend of ours. This case illustrates the sexist fashion in which the reasonable man standard (as well as the revised reasonable person standard) is likely to be applied by a mostly male judiciary, and the race and class biases ubiquitous in the enforcement of anti-harassment statutes.
Street Harassment as Trivial
There exist very few reported street harassment cases in which convictions have been upheld. As a dissenting judge in one of these rare examples indicated, it seems to be the pervasiveness of street harassment that contributes to its neglect by the law. Referring to the fact that women are frequently assaulted with catcalls and sexual suggestions, he asserted that a mere indecent request was insufficient to violate the anti-harassment statute in question. Commonwealth v. Duncan, 363 A.2d 803, 804-05 (Pa. Super. Ct. 1976). He also felt it would be unwise to criminalize such behavior because: “(1) the state runs the risk of criminalizing generally accepted behavior, leaving the actor without reasonable notice that his conduct is criminal; (2) such incidents are too frequent for a justice system to handle them efficiently; (3) courts cannot be expected to arbitrate what are frequently personal disputes by use of the criminal process.” Duncan at 804-05. Since street harassment is so widespread and generally regarded as trivial, this judge feels that there is no reason to do anything about it legally.
The same attitudes that permit and foster street harassment in the first place thus also permeate the legal system, creating a serious impediment to the successful use of any existing remedies against street harassment. Take for example the civil remedy of “intentional infliction of emotional distress, which is defined as “extreme and outrageous conduct [that] intentionally or recklessly causes severe emotional distress to another,” Restatement (Second) of Torts. Street harassment as experienced by countless women clearly fits this definition, yet there are few reported cases in which this remedy has been successfully used in a street harassment context. Much of the difficulty lies in establishing street harassment constitutes “extreme and outrageous conduct.” After all, if street harassment was generally regarded as “extreme and outrageous,” it wouldn’t present such an omnipresent problem.
However, common carriers and hotels have a higher responsibility for the actions of their employees and, in some cases, even their patrons if the company in question was required to train employees to intervene in harassment situations. Thus, when a special relationship exists between the woman and defendant—such as guest and hotel, or passenger and common carrier— establishing liability involves proving only that the conduct was “gross” rather than “extreme and outrageous.”
This lower standard has enabled women to obtain damages from companies for the actions of their employees and patrons in some situations. Yet, as long as courts continue to view street harassment through a lens of complacency distorted by racist and sexist presumptions, legal redress will be difficult to obtain for most of those forced to endure such harassment.
Crime Prevention Resources
Crime Victim Resources
Annotated Bibliography: Sexual Harassment and Sexual Violence
For a quick introduction to self-defense techniques, another option is the Rape Aggression Defense System (RAD), which offers 9-12 hour introductory and advanced courses throughout the U.S. and Canada. RAD offers both women-only courses as well as classes for men and kids. Another option is Impact/Prepare which offers practice on a padded “mugger” in a full force, adrenalized state. This helps the techniques get into muscle memory–like riding a bike–so that a woman always has them when she needs them. For courses outside of NYC, check out Impact Personal Safety. For intense close combat instruction, Attackproof is an option. Founded by a former police officer and forensic homicide investigator, Attackproof has a much different mission and organizational approach than the above two options, providing training to police officers and military members, as well as self-defense courses for those with no training background. While it is not expressly aimed toward women, it offers serious preparation for real fights, which tend to be dirty, last no more than 30 seconds, and have no rules. The disadvantage to more traditional women’s self-defense courses is that they tend to operate under the assumption that you will have a clean punch or kick, which is rarely the case in a real attack. Such courses offer martial arts-based training which assumes that the attacker will behave predictably, which is also rare. Notably, Rape Aggression Defense System (RAD) offers self-defense classes not grounded in martial arts with a feminist approach. However, you may wish to carefully consider how you will go about learning fighting techniques. Unlike many martial arts that take years to master, Attack Proof will teach you deadly skills very quickly. Because of the habitual thought patterns that may arise in students (anger, fear, anxiety, etc.), most martial art forms teach meditation, while Attack Proof does not. To preserve your peace of mind, you may consider learning how to meditate on your own if you choose to train with Attack Proof or a similar fighting system.
For a quick introduction to self-defense techniques, another option is the Rape Aggression Defense System (RAD), which offers 9-12 hour introductory and advanced courses throughout the U.S. and Canada. RAD offers both women-only courses as well as classes for men and kids.
Another option is Impact/Prepare which offers practice on a padded “mugger” in a full force, adrenalized state. This helps the techniques get into muscle memory–like riding a bike–so that a woman always has them when she needs them. For courses outside of NYC, check out Impact Personal Safety.
For intense close combat instruction, Attackproof is an option. Founded by a former police officer and forensic homicide investigator, Attackproof has a much different mission and organizational approach than the above two options, providing training to police officers and military members, as well as self-defense courses for those with no training background. While it is not expressly aimed toward women, it offers serious preparation for real fights, which tend to be dirty, last no more than 30 seconds, and have no rules. The disadvantage to more traditional women’s self-defense courses is that they tend to operate under the assumption that you will have a clean punch or kick, which is rarely the case in a real attack. Such courses offer martial arts-based training which assumes that the attacker will behave predictably, which is also rare. Notably, Rape Aggression Defense System (RAD) offers self-defense classes not grounded in martial arts with a feminist approach.
However, you may wish to carefully consider how you will go about learning fighting techniques. Unlike many martial arts that take years to master, Attack Proof will teach you deadly skills very quickly. Because of the habitual thought patterns that may arise in students (anger, fear, anxiety, etc.), most martial art forms teach meditation, while Attack Proof does not. To preserve your peace of mind, you may consider learning how to meditate on your own if you choose to train with Attack Proof or a similar fighting system.
Here’s the skinny–next time you’re out and about and some cocky ass on a power trip whistles, hoots, or hollas–Just Holla back! Whip out your digicam, cameraphone, 35mm, (or sketchpad), and email us the photo. We’ll post their ugly face for the whole world to see.
If you can’t pull out a camera, or you don’t have one on you, just send us a story and we’ll post that too.
We get a great deal of questions about our site. Listed here are the most common, and our HollaBack responses:
Question:Are you a bunch of crazed feminazis who hate men?
Answer: Actually, Hollaback is a collective comprised of men and women who believe in building communities where everyone feels comfortable, safe, and respected. We were co-founded by three men (and four women, and today, one third of our board members are men). Many people, particularly men, are unaware of the frequency and severity of disrespect and intimidation that numerous folks, especially women, experience in public spaces on a daily basis. Hollaback aims to expose and combat street harassment as well as provide an empowering forum in this struggle.
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Question: OK, but what exactly is street harassment?
Answer: Street harassment is a form of sexual harassment that takes place in public spaces. At its core is a power dynamic that constantly reminds historically subordinated groups (women and LGBTQ folks, for example) of their vulnerability to assault in public spaces. Further, it reinforces the ubiquitous sexual objectification of these groups in everyday life.
At Hollaback, we believe that what specifically counts as street harassment is determined by those who experience it. While there is always the classic, “Hey baby, nice tits” there are many other forms that go unnoted. If you feel like you have been harassed, HOLLA BACK!
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Question: So let’s say a man sees a woman he thinks is attractive and tells her so. Are you saying that makes him a harasser?
Answer: Some do not find comments such as “Hello, beautiful” or “Hey, gorgeous” offensive. Many do. Others may find them intimidating, intrusive, or just an annoying pain in the ass. Keep in mind that many women experience unsolicited comments, as well as violent verbal assault, from men in public spaces on a regular basis. Rather than deliberating the “gray areas” of street harassment, treat everyone you encounter with respect.
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Question: But aren’t you worried that your site will fuel the latent vindictiveness within women and LGBTQ-identified folks across the country, leading to a massive witch-hunt and rampant Soviet-style denounciations of countless innocents?
Answer: No. Worried about Big Brother? Read this and this.
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Question: I heard something about your position on antiracism. What’s that about, and what does it have to do with street harassment?
Answer: Replacing sexism with racism is not a proper holla back. Due in part to prevalent stereotypes of men of color as sexual predators or predisposed to violence, Hollaback asks that contributors do not discuss the race of harassers or include other racialized commentary. If you feel that race is important to your story, please make sure its relevance is explained clearly and constructively in your post. Want more info? Click here.
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Question: But isn’t your idea of “street harassment” just belittling another person’s culture?
Answer: Street harassers occupy the full spectrum of class, race, and nationality. Sexual harassment, and street harassment specifically, is resisted by people around the globe: HollaBack has received e-mails of support and solidarity from numerous countries and from every continent. To condense another’s culture into vague assumptions about who and what they are is to generalize dangerously about a wide range of experiences and perspectives that exist within any one given culture.
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Question: Confronting street harassers can be dangerous. What about safety issues?
Answer: While everyone is vulnerable to stranger rape and sexual assault, studies show that those who are aware of their surroundings, walk with confidence and, if harassed, respond assertively, are less vulnerable. Nevertheless, direct confrontations with street harassers may prove extremely dangerous, particularly alone or in unpopulated spaces. While it is each individual’s right to decide when, how, and if to Holla Back, do keep issues of safety in mind. Upon deciding to photograph a harasser, you may consider doing so substantially after the initial encounter and from a distance, ensuring the harasser is unaware of your actions.
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Question: Isn’t street harassment the price you pay for living in a city?
Answer: No, local taxes are the price you pay for living in a city. We would love to see some portion of our local taxes go towards preventing street harassment, but alas, they don’t.
In fact, street harassment is not confined to urban areas. It occurs in shopping malls, cars, parking lots, public parks, airplanes, fast-food restaurants, gas stations, churches, and numerous other public spaces.
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Question: If you show off your boobage, shouldn’t you expect some compliments?
Answer: Sure, expect them, but don’t accept them! Just because it happens doesn’t mean it’s okay. A compliment is not a compliment if it makes the recipient feel bad.
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Question: Sure, but if “the harasser” were hot, wouldn’t you like it?
Answer: This has nothing to do with sex, and everything to do with power.
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Question: You’re just a bunch of prudes, then?
Answer: Like we said, this has nothing to do with sex, and everything to do with power.
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Question: Street harassment sucks, but it’s only a small part of the patriarchy. Doesn’t focusing on this specific issue detract from everything else we’re up against?
Answer: The violence and disrespect experienced daily by countless people in public spaces is a serious problem with real, material consequences. While Hollaback is a project dedicated to this particular issue, it is committed to a coalitional approach and situates street harassment within a larger framework of social and economic questions. Thus, the collective collaborates with a diverse range of feminist, queer and antiracist initiatives. To see what we’re up to, subscribe to our mailing list!
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HollaBack is not responsible for the accuracy of individual postings. All views and positions expressed in posted submissions are those of individual contributors only.
Replacing sexism with racism is not a proper holla back.
Due in part to prevalent stereotypes of men of color as sexual predators or predisposed to violence, HollaBackNYC asks that contributors do not discuss the race of harassers or include other racialized commentary.
If you feel that race is important to your story, please make sure its relevance is explained clearly and constructively in your post.
Initiatives combating various forms of sexual harassment and assault have continually struggled against the perpetuation of racist stereotypes, in particular the construction of men of color as sexual predators. There exist widespread fictions regarding who perpetrators are: the myth of racial minorities, particularly latino and black men, as prototypical rapists as well as more prone to violence is quite common. This stems in part from a tragic and violent history, where black men in the U.S. were commonly and unjustly accused of assaulting white women as well as lynched by mobs and “tried” in biased courts.
Because of the complexity of institutional and socially ingrained prejudices, Holla Back prioritizes resisting both direct as well as unconscious and unintentional reinforcement of social hierarchies. Simultaneously, Holla Back aims to highlight the interrelations between sexism, racism and other forms of bias and violence.
“White Privilege: Unpacking the Invisible Knapsack”
“I was taught to see racism only in individual acts of meanness, not in invisible systems conferring dominance on my group.” Short, accessible piece on white privilege and male privilege.
“A Black Feminist Critique of Same-Race Street Harassment”
Focuses on the experiences of black lesbians and the need for black women to hold black men accountable for upholding black patriarchy.
“Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color”
Considers the intersections of racism and patriarchy, and how the experiences of women of color remain unrepresented within the discourses of both feminism and antiracism.