Legal

If you are considering taking legal action against your harasser, we’re not the experts. Good thing we know some. The Women’s Law Project has an on-line hotline where you can email them for free advice.  They also have a ton of great information that is written so it’s easier to understand than most legal garble.

Although compiled by Hollaback!’s legal team, this page is an informational resource, not legal advice. If you are considering legal action, contact an attorney who specializes in harassment law and who can advise you on the particulars of your case.

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.

Criminal Remedies
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:

  • Assault
  • State statutes prohibiting harassment in public places. For New York’s statute, click here.
  • “Fighting words” statutes
  • Anti-stalking statutes

Civil Remedies
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:

  • Assault
  • Intentional infliction of emotional distress
  • Invasion of Privacy

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.

 

Race

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.
Further Resources:

Crime Prevention Resources
http://criminal.findlaw.com/crimes/crime_prevention.html

Crime Victim Resources
http://criminal.findlaw.com/crimes/crime_victims.html

Annotated Bibliography: Sexual Harassment and Sexual Violence
http://www.siecus.org/pubs/biblio/bibs0022.html

New York State Statute

 

Legal Resources

U.S. Harassment Laws

Written By: Nikki Tuttle,  LSRJ Summer Intern

 Question Presented 

Are existing state harassment laws capable of addressing street harassment?

 

Short Answer 

While states that currently have harassment laws on the books may be able to apply those laws to address street harassment, states with only stalking laws will have a much harder time applying those laws to street harassment because stalking requires repetition of the action.

 

Discussion 

I.  SUMMARY OF PROCESS 

Before beginning my research, I suspected that not every state had a harassment law that would encompass street harassment, and that some states may have their harassment laws listed under a different guise. With these factors in mind, I set out to find a comprehensive database in which I could compare and contrast existing laws pertaining street harassment. The National Center for Victims of Crime (NCVC) online database provided such a comprehensive list.[1]

Using the NCVC database, I sought a common thread among laws involving street harassment. Upon investigation, it was clear that the laws could be broken down into more specific categories, which could be made into a chart for quick reference. I organized the chart in a manner so that it could be referenced by state or by an element of the crime. In some states, the law has multiple elements that could be considered harassment or stalking, in which case I selected the least demanding requirement, and this is noted by language of “but not limited to.”[2]

 

II.  ELEMENTS OF THE CRIME

 The common element of harassment is “with intent to harass, annoy, or alarm another person.”[3] There is no comprehensive definition or list of elements pertaining to conduct beyond this, as the factors vary from state to state. Factors range from physical contact, verbal obscenities, and threats to person or property.[4] Although the intent requirement is quite lenient, it is worth pointing out the existence of such requirement, as this intent may prove to be a barrier when seeking a legal remedy.[5]

Stalking is typically defined as “willfully, maliciously, and repeatedly follows or harasses.”[6] The first element to be highlighted is “repeatedly,” which is commonly defined as two or more times, however short of an occurrence.[7] The harassment component of stalking is commonly defined as “a knowing and willful course of conduct directed at a specific person that causes emotional distress by placing such a person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family.”[8] Furthermore, “course of conduct” refers to verbal or behavior nonconsensual conduct.[9] “Nonconsensual contact” is any “contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued.”[10] This includes, but is not limited to, verbally or behaviorally confronting another person.[11]

 

III.  ANALYZING THE FINDINGS

While many states have specific harassment laws, a large portion of them remain obscure. For example, a majority define their harassment laws under electronic or written communication.[12] Requiring a written or electronic form of obscene communication does little to combat street harassment. Many of the states that implement this electronic communication law also have a stalking law on the books;[13] however, because the stalking laws require a repetition of occurrences, these laws do not adequately stand in for ones where harassment is specifically addressed. Stalking laws may prove helpful in situations in which the individual committing the harassment frequents a certain location.

States whose laws are most conducive to addressing street harassment are those with elements that “include[s], but not limited to obscene language.”[14] These laws do not require repetition, nor do they require threats or physical violence. Furthermore, obscene language is quite subjective and only requires a reasonable, prudent person standard.

Unfortunately, the punishment for harassment does little to actually deter the crime, as while varying degrees of harassment laws exist, such as malicious harassment or aggravated harassment, the first offense of harassment is typically a misdemeanor.[15] For example in Alabama, harassment is considered a class C misdemeanor, which carries a maximum of 3 months jail time and fines are uncommon.[16] Although misdemeanors, regardless of the class, remain on public record permanently, non-violent, class C misdemeanors almost always yield a positive result when seeking to get them expunged from an individual’s record.[17]

 

IV.  STREET HARASSMENT AS A REPRODUCTIVE JUSTICE ISSUE[18]

Reproductive Justice focuses on the “control and exploitation of women’s bodies, sexuality and reproduction as an effective strategy of controlling women and communities, particularly those of color*” because controlling a woman’s body consequently “controls her life, options, and potential.”[19]  Similarly, street harassment negatively impacts and ultimately controls women (and female-identified persons) by denigrating and exploiting their physical appearance (including gender presentation and bodies), their social and community status (through stereotyping), their sexuality, and their reproductive potential.

First and foremost, street harassment severely impacts a women’s ability to move freely physically and geographically.[20]  When a woman feels fear or humiliation from being harassed, she may be less likely to frequent the places the harassment is taking place. Unfortunately, these occurrences happen in public places, and often near or within the individual’s community, sometimes on the way to work or school. As a result, the woman may take a different route, avoid certain streets, or the harassment may be so frequent and distressing that she begins to abstain from going outside her own home completely, resulting in missing work, classes, and other opportunities for civic and social participation.  Street harassment has thus been observed to cause a kind of “ghettoization women” – “a ghettoization to the private sphere of hearth and home.”[21]

The perpetration (as well as society’s toleration of ) street harassment exerts psychological control over women as well.  The visceral fear and humiliation that women suffer when exposed to street harassment may be crippling to their sense of self and self-esteem.  Being subjected to these –often unaddressed and unpunished—verbal assaults may negatively impact a woman’s ability to be comfortable with her own sexuality and body image, not to mention triggering trauma from past instances of abuse or assault.[22] Such disempowering and degrading experiences may affect a woman’s ability to make her own reproductive decisions, with dignity, free of coercion and discrimination, and thus severely limiting her potential.

Reproductive justice can further be seen as representing a shift from a “narrower focus on legal access and individual choice to a broader analysis of racial, economic, cultural, and structural constraints on our power.**”[23] Street harassment should be part of this broad analysis as it “forms part of a whole spectrum by which men objectify women and assert coercive power over them.”[24]  It is a frequent stereotype that “real” women are “heterosexual, monogamous, maternal, submissive to her man and sexually pleasing to him.”[25] Street harassment reaffirms this stereotype by suggesting that women who have men by their side to serve as a protector deserve to be left alone.[26] However, if she chooses to present herself on the street as a single woman, then she must deal with society’s conception that single women are always up for grabs.[27]  As a result of this, women’s dependence upon men is exponentially increased,[28]  and thus contributes in one more way to men obtaining and retaining power from women.

Street harassment, although a frightening and all too frequent occurrence in many women’s lives,  “has not generally been viewed by academics, judges or legislators as a problem requiring legal redress, either because these mostly male observers have not noticed the behavior or because they have considered it trivial and thus not within the proper scope of the law.”[29] Furthermore, it will be an uphill battle to implement street harassment laws in a system that clearly defines murder and devotes substantial resources to catching and punishing perpetrators, but defines rape much less clearly and devotes fewer resources to it.[30]  Understanding street harassment as falling within the reproductive justice framework is the first step toward articulating a strong justice-based argument for why street harassment must be taken seriously and addressed.

 

V.  CONCLUSION

Many states currently have harassment laws on the books that may prove helpful to combating street harassment, and in some cases state stalking laws may also prove beneficial. However, it will continue to be a difficult battle, as the legal remedy represents but a small point in the larger, underlying issues that swirl around street harassment, namely, the intersections of power, identities, conditions, systems, policies, and practices. A paradigm shift must occur, and society must change its conception of violence and women and female-identified persons, in general. Reproductive justice is not only a women’s right issue, or a LGBT issue, it is holistically a civil and human rights issue. Street harassment is thus definitively a reproductive justice issue that deserves immediate attention from grassroots organizers, advocates, lawmakers, academics, and judges.

 


[1] Stalking Resource Center, The National Center for Victims of Crime, http://www.ncvc.org/src/main.aspx?dbID=dash_Home (last visited Aug. 4, 2011).

[2] KRS § 525.070.

[3] Ala.Code 1975 § 13A-11-8.

[4] AS 11.61.118, Ala.Code 1975 § 13A-11-8, Nev. Rev. Stat. Ann. § 200.571.

[5] Id.

[6] Fla. Stat. § 784.048.

[7] K.S.A. § 21-3438, Miss. Code Ann. § 97-3-107.

[8] R.I. Gen. Laws § 11-59-2, Wyo. Stat. § 6-2-506.

[9] Idaho Code § 18-7906, La. R.S. 14:40.2.

[10]  MCLS § 750.411h, Miss. Code Ann. § 97-3-107.

[11] Id.

[12] 720 ILCS 135/1-2, Ind. Code Ann. § 35-45-2-2.

[13] R.I. Gen. Laws § 11-52-4.2, R.I. Gen. Laws § 11-59-2.

[14] R.S.Mo. § 565.090, 18 Pa. C.S. § 2709, Iowa Code § 708.7.

[15] Ala.Code 1975 § 13A-11-8, AR § 5-71-208, KRS § 525.070.

[16] Alabama Misdemeanor Guidelines, Misdemeanor Guide, http://misdemeanorguide.com/state/Alabama.php (last visited August 5, 2011).

[17]Class C Misdemenor Charges and Their Punishments, Public Records Guide, http://publicrecordsguide.com/class-c-misdemeanor.html (last visited August 5, 2011).

[18] Edited and supplemented by Mariko Miki, LSRJ Director of Academic & Professional Programs.

[19]ACRJ, A New Vision for Advancing our movement for Reproductive Health, Reproductive Rights and Reproductive Justice (2005)(“historically and currently, a women’s lack of power and self-determination is mediated through the multiple oppressions of race, class, gender, sexuality, ability, age and immigration status”).

[20] Cynthia Grant Bowman, Street Harassment and the Informal Ghettoization of Women, 106 Harv. L. Rev. 517 Jan 1993, 2, available at https://files.nyu.edu/stc215/public/BowmanHLR.pdf.

[21] Id.

[22] Id. at 9.

[23] Sister Song, Why is Reproductive Justice Important for Women of Color? Women of Color Reproductive Justice Collective (2011), http://www.sistersong.net/index.php?option=com_content&view=article&id=141&Itemid=65

[24] Bowman supra note 4 at 9.

[25] Duncan Kennedy, Sexual Abuse, Sexy Dressing and the Eroticization of Domination, 26 New Eng. L. Rev. 1309, (1992), available athttp://duncankennedy.net/documents/Photo%20articles/Sexual%20Abuse,%20Sexy%20Dressing%20and%20the%20Eroticization%20of%20Domination.pdf.

[26] Id.

[27] Id.

[28] Bowman, supra note 8.

[29] Bowman, supra note 4 at 2.

[30] Id. at 11.

* – language changed from original text to include full quotation

** – for more information and contextualization about Reproductive Justice, see: http://www.sistersong.net/index.php?option=com_content&view=article&id=141&Itemid=65

 

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