Law and Policy on Street Harassment
                                                                                                                                                                           last updated 2 August 2013
Despite the widespread and public nature of the problem,[1] there is little to no state or national legislation specifically governing street harassment, and attempts to hold perpetrators legally accountable have proven difficult.[2] This gap in legislation reflects and reinforces the common understanding of street harassment as innocent or even complimentary behavior and further trivializes this issue.
 
Because of the obstacles to developing and enforcing legislation outlawing street harassment, many organizations and activists have focused on the social norms that cause and perpetuate street harassment. Although it is important that legal and social change go hand in hand, social change may be the best way to address the forms of street harassment that cannot be captured by the law. Using existing laws to hold perpetrators of street harassment accountable has thus far proved challenging because of gaps in legislation and, in the United States, First Amendment or free speech concerns.
 
Legal Redress for Street Harassment in the United States
 
There are unique challenges for holding perpetrators legally accountable for street harassment. Although street harassment is a form of sexual harassment, the public nature of the abuse and the anonymity of the perpetrator cause difficulties for developing and enforcing legislation on this type of harassment. First of all, street harassment often involves public speech and, therefore, efforts to legislate speech bring First Amendment concerns. Some speech that fulfills the requirements of street harassment would be objectively harmless outside of the specific context of harassment. For example, “hello” or “you look beautiful” are appropriate and harmless phrases in many contexts. However, when these words are accompanied by threatening behavior, repeated despite clear indications that they are unwanted, or in any other situation that constitutes harassment, they lose their innocent quality. Yet any regulation of such words could be a threat to the freedom of speech guaranteed by the First Amendment to the U.S. Constitution. For more information on how the regulation of speech in the context of street harassment interacts with First Amendment concerns, see Cynthia Grant Bowman, Street Harassment and the Informal Ghettoization of Women, 106 Harv. L. Rev. 517, 518 (1993).
 
In her article, Bowman also lists some criminal and civil offenses which could be used to bring legal actions against perpetrators of street harassment. These include assault, harassment in public places, “fighting words,” intentional infliction of emotional distress, or the torts of intrusion or invasion of privacy. Because street harassment occurs in a broader context and it is more difficult to prove the perpetrators’ intent, it is more challenging to legislate than sexual harassment in the workplace, for example, which falls under the sex discrimination prohibition of Title VII of the Civil Rights Act of 1964. Bowman notes that existing statutes covering these offenses are not well-suited to address street harassment and calls for legal reform to account for the unique harms of street harassment.[3] 
 
A common feature of street harassment is that the harasser and the harassee are strangers.[4] As a result, it can be very difficult for a victim to identify a perpetrator in order to pursue legal action. Incidents of street harassment may occur in crowded spaces or at night when it may be difficult to get a good look at the perpetrator. A victim might only hear verbal abuse or feel the assault without seeing the harasser. It is also possible that the harasser may leave the scene quickly before there is time to alert the proper authorities and obtain the harasser’s information. Finally, a common response to street harassment on the part of the victim is to ignore the harassment, avoid eye contact with the harasser, and escape the situation as soon as possible. These variables present challenges to investigating instances of street harassment.
 
Many women who experience street harassment do not report the violation to the proper authorities. For example, in a 2007 New York City survey of 1,790 subway riders, 63% said that they had been sexually harassed on the NYC subway. Of these respondents, only 4% contacted the NYPD or the Metropolitan Transit Authority (MTA) in reference to the incident.[5] Street harassment is an under-reported crime for a variety of reasons. One major deterrent is indifference on the part of law enforcement to respond to street harassment claims,[6] although government and law enforcement officials are starting to recognize street harassment as a serious harm.[7] Another obstacle is the lack of victims’ knowledge that street harassment is harassment. Many people do not identify street harassment as a crime and victims are not aware of their options. Additionally, victims may be reluctant to report street harassment because they feel ashamed, embarrassed, or guilty. This internalization of the violation is a common response, as illustrated by victims’ stories uploaded to local and national street harassment advocacy sites such as HarassMap and Hollaback.
 
A further obstacle is the “repeated” requirement of many state statutes on harassment and stalking. Many civil and harassment statutes contain requirements of repeated or patterned conduct. For example, the U.S. state of Massachusetts has a criminal harassment statute M.G.L.A. 265 § 43A:
 
Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment [...][8]
 
Similarly, Massachusetts’ civil harassment statute requires “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.”[9] Therefore, a woman who receives harassment daily on the streets of her neighborhood may not have a valid legal claim if the incidents came from different perpetrators. Similarly, a single perpetrator may harass many different women without repeating this behavior towards any one woman. Because traditional sexual harassment and stalking legislation focuses on repeated interactions between the same two parties, it is difficult to use these laws in street harassment claims. Street harassment legislation needs to account for the unique pattern of repeated abuse of the same victim at the hands of separate parties, and the harasser’s pattern of harassment towards a number of different victims.
           
Some U.S. states do have laws that can theoretically be applied to street harassment. For example, New York State statute, § 240.26 Harassment in the second degree, says:
 
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.
Harassment in the second degree is a violation.[10]
 
Alabama’s harassment statute is nearly identical except that harassment is categorized as a Class C misdemeanor.[11] However, the application of statutes like these to incidents of street harassment has proven difficult for a variety of reasons. First of all, these statutes have been interpreted to require that the harasser intend to “harass, annoy, or alarm.”[12] This intent, rather than the effect on the victim, determines whether or not there is a violation. Therefore, if the perpetrator did not intend to have such an effect on the victim, it is irrelevant if the victim did indeed feel harassed, annoyed, or alarmed. This subjective standard, coupled with the fact that most street harassers characterize their behavior as “harmless” or “complimentary,” makes it difficult to apply New York’s statute and others like it.
 
The second obstacle to using the New York statute is the high standard for what kind of language and behavior qualifies as harassment. According to one case,
 
That the facts alleged may describe annoying behavior is not enough to support prosecution of the charge and thereby invest the court with jurisdiction. In a free society, such as ours, citizens are subjected to a degree of annoying behavior which, most likely, in a police state would not be tolerated. But merely because a person behaves in an immature, immoderate, rude or patronizing manner which annoys another is not enough to cause the actor to suffer criminal sanctions. He must intend that such behavior annoy, harass or alarm another. This court will condone neither poor judgment nor bad taste. But, by the same token, this court will not criminalize such behavior where to do so would exceed the fair import of the statutory language defining the offense of harassment.”[13]
 
This understanding of this harassment as nothing more than “annoying behavior,” reflects the common view that street harassment is harmless and a mere inevitable inconvenience to women.[14] This reluctance to restrict offensive language reflects the great concern in the U.S. with violating the First Amendment right to free speech. See Bowman for a more in-depth discussion of the interaction between street harassment and the First Amendment.[15]
 
An additional requirement that may cause difficulty in its application to street harassment is that harassment must be part of a course of conduct or repeated acts. This standard is reflected in many other stalking and harassment laws in the United States. As previously mentioned, claims of street harassment usually fail the repeatedness requirement.
 
The phrase “course of conduct” has been interpreted to also mean “repeated acts.”[16] For example, the U.S. state of Missouri’s statute against stalking, which includes harassment, governs harassing behavior as part of the perpetrator’s “course of conduct.” Course of conduct is defined as “a pattern of conduct composed of two or more acts, which may include communication by any means, over a period of time, however short, evidencing a continuity of purpose.”[17] Furthermore, “constitutionally protected activity is not included within the meaning of course of conduct,” which reflects concerns about restrictions on public speech.[18]
 
Other legislation against street harassment requires the victim to ask the harasser to cease his behavior. For example, Maryland criminal statute on harassment, § 3-803:
 
(a) A person may not follow another in or about a public place or maliciously engage in a course of conduct that alarms or seriously annoys the other:
(1) with the intent to harass, alarm, or annoy the other;
(2) after receiving a reasonable warning or request to stop by or on behalf of the other; and
(3) without a legal purpose.[19]
 
If a victim of street harassment feels too uncomfortable or unsafe to ask the harasser to stop, this law cannot be enforced against the perpetrator. Also, this statute shares the intent requirement of many other relevant statutes, which causes some of the difficulties mentioned above.
 
Other legislation focuses on the inappropriate conduct of the harasser. For example, New Jersey has a criminal law against lewdness:
 
A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed.[20]
 
This statute has been interpreted to require “not only intent to do the act but also an intent that the act be seen” N.J. Stat. Ann. § 2C:14-4 (West). However, it remains a promising statute for prosecuting harassers who expose themselves in public.
 
Legislation on harassment and stalking should be reformed to reflect the unique context of street harassment, where victims may be subject to violations from multiple harassers and may be uncomfortable asking the perpetrators to stop their behavior.
 
Hollaback has compiled a list of U.S. laws relating to street harassment that can be accessed here.
 
Laws Against Street Harassment in Other Countries
 
Egypt
 
Egypt has two laws against street harassment:
 
Article 306: Any person who exposes another to indecent assault publicly via words, actions or gestures shall be punished by imprisonment for not less than 6 months and not exceeding 2 years, and with a fine of not less that LE 500 and not more than LE 2,000. The punishment in the preceding paragraph also applies if the indecent assault took place via telephone or by any other means of telecommunication.
 
Article 269: Any person who incites others to acts of indecency in the public way shall be punished by imprisonment for not less than 3 months. If the offender commits a similar act within 1 year from the date of final sentence for the first crime, the punishment shall be imprisonment for not less than 2 years and with a fine of not less than LE 500 and not more than LE 3,000.[21]
 
This legislation has been used several times in the past five years against street harassers.[22] Still, victims are discouraged from bringing charges against their harassers, especially since it is a common belief that women bring this harassment on themselves because of their dress or behavior.[23]                    
 
United Kingdom
 
In the United Kingdom, the “offence of causing intentional harassment, alarm or distress” covers behavior that constitutes street harassment:
 
(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.[24]
 
As is the case in many U.S. state statutes, the U.K. harassment statute requires that the perpetrator intend that the behavior be harassing or alarming. Furthermore, if the defendant can prove “that his conduct was reasonable,” he may use this fact to defend against the harassment claim. “Reasonable” behavior is difficult to define and may provide a perpetrator with a means to excuse his harassing behavior, especially since street harassment is often interpreted as mere flirtation.
 
Canada
 
Canada’s criminal harassment statute is promising in that it focuses more on the effect on the victim than the intent of the perpetrator:
 
264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
 
It is only required that the perpetrator knew or should have known (“recklessness”) that the victim is harassed, not that they intend this result. However, the definition of this offense requires repeated acts of harassment, which raises difficulties for prosecuting single offenses of street harassment:
 
(2) The conduct mentioned in subsection (1) consists of
  • (a) repeatedly following from place to place the other person or anyone known to them;
  • (b) repeatendly communicating with, either directly or indirectly, the other person or anyone known to them;
  • (c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
  • (d) engaging in threatening conduct directed at the other person or any member of their family. [25]
 
South Africa
 
South Africa’s Protection from Harassment Act (2010) defines harassment as:
 
            […] directly or indirectly engaging in conduct that the respondent knows or ought to know—
(a)   causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably—
(i) following, watching, pursuing, or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies, or happens to be;
(ii) engaging in verbal, electronic, or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; […]
 
The statute allows the complainant to file for a protective order against the perpetrator. It also provides for the South African Police Service to discover information about the alleged perpetrator such as their name, address, and, in cases of harassment via phone or computer, phone number or email. A perpetrator who violates the protective order risks a fine or imprisonment for up to five years. Although this statute requires that the perpetrator “know or ought to know” that their behavior is harmful, it is an improvement over the “intent” requirement of similar statutes in other countries. Additionally, the absence of a requirement that the conduct is repeated is also promising.[26]
 
 

[1] Stop Street Harassment estimates that over 80% of women worldwide have been or will be targets of street harassment during their lifetime (http://www.stopstreetharassment.org/). A phone survey found that: 87% of American women [they had surveyed] between the ages of 18-64 have been harassed by a male stranger; and over one half of these women have experienced "extreme" harassment including being touched, grabbed, rubbed, brushed or followed by a strange man on the street or other public place.” Oxygen/Markle Pulse Poll Finds: Harassment of Women on the Street Is Rampant; 87% of American Women Report Being Harassed on the Street By a Male Stranger,” Oxygen/Markle Pulse Survey, The Free Library, June 22, 2000, accessed August 2, 2013, http://www.thefreelibrary.com/Oxygen%2FMarkle+Pulse+Poll+Finds%3A+Harassment+of+Women+on+the+Street+Is...-a062870396.
 
[2] See People v. Malausky, 485 N.Y.S.2d 925, (man soliciting women on the street for sex did not intend to harass and therefore could not be prosecuted underN.Y. Penal Law § 240.25 Harassment in the first degree).
 
[3]Cynthia Grant Bowman, Street Harassment and the Informal Ghettoization of Women, 106 Harv. L. Rev. 517, 520 (1993).
[4] In a 2010 survey of sexual violence in the United States, 50.5% of women victims reported that the perpetrator of non-contact unwanted sexual experiences was a stranger, and 54.1% of women victims of unwanted sexual contact did not know the perpetrator. M.C. Black et al., The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report. Atlanta: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, 2011. Accessed August 1, 2013, http://www.ihollaback.org/wp-content/uploads/2012/06/NISVS_Report2010.pdf, 22.
 
[5] Scott M. Stringer, Hidden in Plain Sight: Sexual Harassment and Assault in the New York City Subway System, July 2007, accessed July 31, 2013,http://www.nytimes.com/packages/pdf/nyregion/city_room/20070726_hiddeninplainsight.pdf.
 
[6] Emily Smith, “Hey baby! Women speak out against street harassment,” CNN, October 6, 2012, accessed August 1, 2013, http://www.cnn.com/2012/10/06/living/street-harassment.  
      
[7] Jane Martinson, “Police act to halt sex harassment on London buses and trains,” The Guardian, July 21, 2013, accessed August 1, 2013, http://www.theguardian.com/uk-news/2013/jul/22/sexual-harassment-london-transport.
 
[8] Mass. Gen. Laws Ann. ch. 265, § 43A (West).
 
[9] Mass. Gen. Laws Ann. ch. 258E, § 1 (West).
 
[10] N.Y. Penal Law § 240.26 (McKinney).
 
[11] Harassment or harassing communications:(a)(1) Harassment. A person commits the crime of harassment if, with intent to harass, annoy, or alarm another person, he or she either: a. Strikes, shoves, kicks, or otherwise touches a person or subjects him or her to physical contact. b. Directs abusive or obscene language or makes an obscene gesture towards another person. (2) For purposes of this section, harassment shall include a threat, verbal or nonverbal, made with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety. (3) Harassment is a Class C misdemeanor. Ala. Code § 13A-11-8 (West).
 
[12]See People v. Concannon, 28 N.Y.2d 854, 855, 271 N.E.2d 229 (1971), requiring that “the defendant intended to harass the complainant.”
 
[13] People v. Malausky, 127 Misc. 2d 84, 86, 485 N.Y.S.2d 925, 928 (City Ct. 1985).
 
[14] Bowman points out similar language used when analyzing harassment as a tort: “See, e.g., William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L. Rev. 874, 887 (1939) (“The rough edges of our society still are in need of a great deal of filing down, and the plaintiff in the meantime must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.”). Prosser's comments were incorporated into the Restatement (Second) of Torts. See Restatement (Second) of Torts § 46 cmt. d (1965).” Cynthia Grant Bowman, "Street Harassment and the Informal Ghettoization of Women,” 106 Harv. L. Rev. 517, 580 (1993) footnote 82.
 
[15] Cynthia Grant Bowman, "Street Harassment and the Informal Ghettoization of Women,” 106 Harv. L. Rev. 517, 580 (1993).
 
[16] “The offense, however, requires a “course of conduct” or repeated acts; thus, one isolated incident will not suffice.” N.Y. Penal Law § 240.26 (McKinney).
 
[17] Mo. Ann. Stat. § 565.225 (West).
 
[18] Mo. Ann. Stat. § 565.225 (West).
 
[19] Md. Code Ann., Crim. Law § 3-803 (West).
 
[20] N.J. Stat. Ann. § 2C:14-4 (West).
 
[21] “Laws against sexual harassment in Egypt,” HarassMap, accessed August 2, 2013, http://harassmap.org/en/resource-cetner/laws-against-sexual-harassment-in-egypt/.
 
[22] “Egyptian man jailed for 2 years for sexual harassment,” Ahram Online, November 12, 2012, accessed August 1, 2013, http://english.ahram.org.eg/NewsContent/1/64/57916/Egypt/Politics-/Egyptian-man-jailed-for--years-for-sexual-harassme.aspx.
 
[23] “Egyptian sexual harasser jailed,” BBC News, October 21, 2008, accessed July 31, 2013, http://news.bbc.co.uk/2/hi/africa/7682951.stm.
 
[24]s. 154 Offence of causing intentional harassment, alarm or distress., UK ST 1994 c. 33 Pt XII s. 154
 
[25] Criminal Code R.S., 1985, c. C-46, s. 264, Canada, accessed August 2, 2013, http://laws-lois.justice.gc.ca/eng/acts/C-46/FullText.html.
 
[26] No. 17 of 2011: Protection from Harassment Act, 2010 Republic of South Africa, Government Gazette 558 (December 5, 2011) No. 34818, accessed August 2, 2013, http://www.justice.gov.za/legislation/acts/2011-017.pdf