Achieving justice for street harassment: why a criminal legal response is not the answer

The issue of gender-based violence is again dominating international headlines.

A London police officer has been charged with the horrific murder of Sarah Everard as she was walking home in the UK. Her murder echoes those that occurred closer to home in Melbourne – Jill Meagher, Eurydice Dixon, Aiia Maasarwe, Masa Vukotic – women who were also murdered by men when simply trying to make their way home or go for a run. However, these women are in part household names because they were, in many respects, ‘ideal victims’: white, youthful and conventionally attractive. Other women killed in public spaces, such as Natalina Angok, did not receive the same level of public sympathy or media airtime.

Sarah’s case has been met with public outcry, grief, and rage – with public vigils held in defiance of the UK COVID restrictions, and met by police with more violence against women in public spaces – and an outpouring on social media.

Her death has clearly resonated with so many women and gender-diverse folk, who frequently experience harassment and threats to their safety in public spaces, never knowing when these mundane occurrences might escalate into something bigger. The case was a reminder that so many of us remain unable to do such a mundane activity as walking home without facing the fear or reality of harassment, and sexual and other violence.

In Australia, Sarah’s death coincided with an anger that had already boiled over in response to several (alleged) rapes perpetrated by men in politics; one of whom continues to hold the position of Attorney-General and enjoys the widespread support of colleagues who have refused to implement an independent inquiry thus far.

So, what do we do?

Understandably, attention has turned to the vexed question of what we should or can do to stop men’s violence, and to ensure perpetrators are held to account. In the UK, this has included further calls to make street harassment illegal, and to introduce misogyny hate crime provisions.

While these calls are well-intentioned, they are ultimately unlikely to be effective. I’ve written previously with UK-based academic Dr Fiona Vera-Gray on the limitations of a criminal legal response to street harassment, and in a forthcoming critique on misogyny hate crime provisions.

Thinking through how to achieve justice in response to street harassment is also what my current research is about – so what insights has this project provided so far?

Some reasons why criminal law is not the answer

Firstly, it is important to acknowledge that some participants do want a criminal legal response to street harassment, such as the introduction of new legislation making harassment illegal, and the introduction of punishments such as on-the-spot fines. A criminal legal response was desirable because of the symbolic and actual power of the state: legislation makes a clear statement that street harassment is wrong and not tolerated, and establishes tangible consequences for the men who perpetrate this behaviour.

Additionally, some forms of harassment, like indecent exposure, are already against the law. While I have some serious reservations about a criminal legal response, currently this is virtually the only official avenue available for victims to seek some form of justice or accountability. I want to be clear that I am not judging or critiquing individuals who have reported to the police or otherwise desire a state-led response. As US-based transformative justice practitioner and activist Ejeris Dixon explains in Beyond Survival :

 “We have yet to build an alternative to 911…we must ask ourselves who wins when we shame survivors for using the available options when all such options are violent”

We need to ensure the system is as ‘safe’ as it possibly can be (for both survivors and perpetrators) while we engage in the difficult and long-term work of building true alternatives for seeking justice.

However, the vast majority of people I’ve spoken to in this project and in previous work have not viewed the legal system as a site of justice, or have held serious concerns as to how effective a criminal legal response is likely to be, even if they desired this type of response in principle.

 There are a number of reasons for this:

1. A criminal legal response is retrospective: put simply, by the time street harassment is reported, it’s too late. Something has happened. The harm has been done, and it cannot be undone. For this reason, many participants have expressed a firm preference for prevention and educational responses. Justice will be achieved when street harassment no longer occurs.

2. A criminal legal response doesn’t address the underlying causes of street harassment: while issuing a fine or arresting someone may, to some extent, hold perpetrators to account, it doesn’t necessarily mean they understand why their behaviour was harmful. Likewise, a criminal legal response does very little to address the gendered (and other) power relations and attitudes that underpin street harassment.

3. Street harassment doesn’t ‘fit’ well with the evidence required by the criminal legal system: experiences of harassment are often fleeting. We don’t see who the perpetrator is, or they’re gone before we can do anything about it. This leaves victims with little tangible evidence to report to police, making it unlikely that any action can be taken. Many forms of harassment are also quite subtle, can constitute ‘normal’ interactions in public space (e.g., prolonged unwanted conversation), or are not illegal and would be very difficult – if not undesirable – to regulate through legislation (e.g., staring/leering).

4. It’s not worth the effort: Individual incidents of street harassment were seen as too ‘minor’ to be worth the emotional, physical and time-based efforts of reporting. This was further compounded by the fact that there would likely be very little that police could do – reporting would involve considerable effort and achieve very little.

5. The criminal legal system does not have a good track record when it comes responding to other forms of gender-based violence and violence against LGBTQ+ communities. This is amplified for certain communities, such as Indigenous women where the legal system is often a site of further harm. Because of this, many participants were sceptical about the ability of the legal system to respond appropriately to a form of violence that is routinely trivialised.

6. Responses such as on-the-spot fines are likely to be used disproportionately against marginalised groups of men: many participants noted that fines and public order responses to street harassment were highly likely to be used disproportionately against Indigenous men, People of Colour, people experiencing homelessness, and people with poor mental health. These groups are already subject to over-policing, state surveillance and intervention. In other words, a criminal legal response will directly contribute towards perpetuating other forms of power inequality, while simultaneously doing very little to stop public harassment. This can also act as a barrier to reporting for victim/survivors from within these communities, as they do not want to perpetuate the harms caused by criminal legal intervention.

So, what do people who have experienced street harassment want? This is a huge question, and something I’ll write a stand-alone piece on in the future. In short, participants wanted responses that focused on education, prevention and transformation of the underlying structural, social and cultural causes of street harassment.

They wanted a world where street harassment no longer happens, not one where we deal with it after the damage has already been done.