|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
MISOGYNY IN PLAIN SIGHT:
CONSIDERING THE ROLE OF THE CRIMINAL LAW IN PREVENTING STREET HARASSMENT OF WOMEN IN NEW ZEALAND
Lucy Amelia Gallagher
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Ōtākou
7 October 2022
ACKNOWLEDGEMENTS
Thank you to Dr Anna High, for your invaluable feedback on this dissertation, and for your words of wisdom when I doubted myself.
Thank you to Sarah, for being my sounding board throughout this process, and for your friendship.
Thank you to the rest of my friends, old and new, for the past five years together at university. I will cherish the memories we’ve made forever.
Finally, thank you to my family, Jeanne, Pete and Gabe, for being the best support network I could ever ask for. I am privileged to have you in my corner. Mum, you get an extra thank you for putting up with my frequent phone calls and coffee date requests.
Table of Contents
INTRODUCTION
“I regularly cycle home from shifts at the hospital in Christchurch, often after dark. In the last month I’ve had three incidences where a car with several males shouted obscene comments out the window, one tried to grab me through the window whilst we were stopped at a traffic light. It makes me terrified every journey home.”1
“One evening, the bus had emptied out apart from me and a young man in a business suit sitting across the aisle from me. A movement caught my eye and I realised he had opened his trousers, revealed himself and was masturbating. I froze. I didn’t know what to do. I have never forgotten the terror of having to wonder if I was going to make it home safely that night.”2
Acts of street harassment are a regular occurrence for many women in New Zealand, despite the prevention efforts of social activism.3 This dissertation asks two questions: First, what is the role of the criminal law in preventing street harassment of women in New Zealand? Second, what criminal law mechanisms might address street harassment and, if such mechanisms exist, are they adequate to deal with the problem that it represents?
This dissertation is structured as follows: First, Chapter I defines “street harassment” for the purposes of this dissertation. Chapter II then explores how street harassment of women constitutes a social problem, both historically and in contemporary times. It begins by considering how women in New Zealand were treated during the colonial period, and explains how such treatment laid the foundations for less overt reinforcement of gender stereotypes and patriarchal power over women, like street harassment, in modern times. Further, it details the psychological, social, and geographical harm that street harassment inflicts upon women, and introduces the possibility of a new law specifically tailored to addressing that harm.
1 Interview with an anonymous New Zealand woman conducted by social activist group Women in Urbanism (emphasis added). See <https://www.womeninurban.org.nz/street-harassment>.
2 As above (emphasis added).
3 Ministry of Justice New Zealand Crime and Safety Survey (2014) at 51; Cecile Meier “’Shocking’ survey results show sexual abuse ‘ubiquitous’ in Kiwi women’s lives” (13 November 2013) Stuff <www.stuff.co.nz>.
Chapter III then canvasses existing offence provisions within New Zealand’s legal framework that could, at least theoretically, be used to prosecute acts of street harassment. While it is conceded that there are such criminal law provisions, it argues that these provisions are in violation of the fair labelling principle, in that they fail to condemn the misogyny and ideas of gender inequality that acts of street harassment reinforce. The fair labelling principle (which first emerged in the academic literature in the early 1980s) posits that where a marginalised social group suffers a unique harm that has previously been trivialized historically, it should be prosecuted using an offence that makes that harm visible, as opposed to a general offence provision.4 Consequently, Chapter III introduces the idea of a new offence provision specifically targeted at street harassment.
Chapter IV then considers three key concerns associated with introducing a new offence provision targeted at street harassment: First, the issue of overcriminalisation; second, using the law as a symbol for change; and third, freedom of speech. It concludes that criminalising street harassment specifically would be preferable because it would: Be more effective in generating social change than non-legal means; be a proportionate response to the harm of street harassment; and be justified despite overlap with existing offence provisions. Further, it concludes that using the law as a symbol is desirable given the success of past laws used in the same way, and that criminalising verbal street harassment in particular would be a justifiable infringement of perpetrators’ freedom of speech.
Finally, given the foregoing analysis, Chapter V proposes a draft offence provision targeted at street harassment. Lessons from overseas jurisdictions, that have introduced such a provision themselves, are drawn upon.
4 Deirdre Davis “The Harm That Has No Name: Street Harassment, Embodiment, and African American Women” (1994) 4 UCLA Women's L.J 133 at 153.
I. DEFINING “STREET HARASSMENT”
This chapter establishes a definition of street harassment for the purpose of this dissertation (the “working definition”). The working definition is not intended to foreshadow a possible legal definition of street harassment. Rather, the working definition makes clear the behaviours that this dissertation contemplates in determining whether street harassment should be criminalised by way of a separate offence provision. In the context of increasing calls for a targeted response to street harassment, a working definition is needed to explore the cogency of those claims.
As a hybrid of several academic definitions of street harassment, the working definition is:5
Woman includes transgender women.
Body parts includes both naturally occurring and surgically constructed body parts.
It is noted that if New Zealand were to introduce a law targeted at street harassment in order to address the gender-specific harm it inflicts, the legal phrasing would most likely be in gender- neutral terms. More specifically, this would target harassment that is “motivated by a person’s
5 Cynthia Bowman “Street Harassment and the Informal Ghettoization of Women” (1993) 106 Harv. L Rev 517 at 523; Davis, above n 4, at 138.
gender”, as opposed to harassment that is “experienced by a woman and inflicted by a man.”1 This is discussed in more detail in Chapter VI, which considers the wording of a legal provision against street harassment.
The following subparts break down the key elements of this working definition.
Use of the term “street harassment” should not be taken to mean that the working definition only applies to harassment that takes place in a literal street.8 The “street” in “street harassment” is used to label sexual harassment of women that takes place in any public context (excluding the workplace). This means that the working definition indeed applies to harassment which occurs in the streets, but also harassment that occurs on public transport, and in other public spaces like bars, clubs, swimming pools, or in any other space to which the public has access, or space which is within public view.
However, the workplace is expressly excluded from the working definition because street harassment in the workplace is sufficiently defined and dealt with by employment law. Sexual harassment in the workplace amounts to an employment relationship problem, in relation to which the Employment Relations Authority has exclusive jurisdiction to resolve. 9
6 Sonja Arndt “Street Harassment: The Need for Criminal Remedies” (2018) 29 Hastings Women's L.J. 81 at 92.
7 Bianca Fileborn and F Vera-Gray “’I Want to be Able to Walk the Street Without Fear’: Transforming Justice for Street Harassment” (2017) 25 Fem Leg Stud 204 at 205; Women in Urban “Street Harassment” (2018)
8 Fileborn and Vera-Gray, above n 7, at 205.
9 Employment Relations Act 2000, s 161.
The working definition considers street harassment as having sexual connotations or being derogatory towards women as a function of gender and sexual inequality. As will be argued in Chapter II, street harassment is a manifestation of patriarchal power and reinforces the idea that a woman’s value stems from her physical appearance or sexual desirability.10 Thus, the act must be sexual or derogatory (or both) to fall within the working definition.
This element deals with the immediate impact of an act of street harassment upon the female victim. It includes a spectrum of emotions a woman may experience as a victim of street harassment.11 The element is deliberately phrased so as to avoid subscribing to a clear objective or clear subjective standard. 12 Such consideration is not necessary at this stage. Instead, a subjective versus objective standard for assessing street harassment’s impact is discussed in Chapter VI, which considers the wording of a legal provision against street harassment.
Having established a working definition of street harassment, it is useful to outline examples of behaviour that fall within it.
“Catcalling” covers a variety of harassing words or actions towards women.13 Examples of catcalling include name-calling (e.g., “slut”, “whore”), commenting on a woman’s physical appearance, wolf-whistling, or propositioning a woman for sex.14
10 Irene Zempi and Jo Smith Misogyny as Hate Crime (Routledge, Oxford, 2021) at 17.
11 Bowman, above n 5, at 524.
12 Objective standard meaning the attitude or emotion a reasonable person in the female victim’s position would feel, and subjective standard meaning the attitude or emotion the female victim herself feels.
13 Anelli Camille Ancheta “No Place for Harassment: Construing Street Harassment as Gender-Based Sexual Violence and Providing Remedies Therefore” (2018) 63 Anteneo L.J. 539 at 556.
14 Arndt, above n 6, at 94.
The working definition also captures more serious forms of verbal harassment amounting to a threat. Take, for example, a man threatening to rape a woman following the rejection of his sexual proposition or advance.
The working definition captures instances of physical harassment, like groping or inappropriate hand placement when moving past a woman. The working definition also contemplates physical acts of harassment that do not involve touching a woman, like masturbating or flashing, the use of signs to rate physical appearance,15 prolonged staring, or following.16
Having established the working definition and the varied nature of street harassment, the following chapter examines the ways in which street harassment represents a social problem, primarily for women and girls.
15 Bunkosal Chhun “Catcalls: Protected Speech or Fights Words?” (2011) 33 T. Jefferson L. Rev 273 at 276. 16 Laura Logan “Street Harassment: Current and Promising Avenues for Researchers and Activists” (2015) 9 Sociology Compass 196 at 199.
II. THE SOCIAL PROBLEM
This chapter discusses how street harassment constitutes a social problem in New Zealand. It explores the societal history, beliefs, and practices that underpin acts of street harassment, and discusses two avenues for change: One being social activism, and the other being application of the law.
New Zealand prides itself as a cut above the rest when it comes to gender equality.17 It was the first country to give women the vote, and it has a remarkably small wage gap when compared with its OECD counterparts.18 However, New Zealand’s self-perception as a leader in gender equality is arguably undermined when our sexual violence and harassment statistics are considered. Although we may, at least at the political and legal level, appear to make room for women at the table, mistreatment of women is still rampant in society. A recent opinion poll found that 82% of women in New Zealand have faced some form of harassment while in public, with 75% having experienced physically violent harassment.19 The most common types of harm experienced by women surveyed included being touched in an unwelcome sexual way, being followed, or being flashed at.20 More broadly, New Zealand women are five times more likely than men to experience some form of sexual offending in their lifetime.21
Street harassment is a manifestation of the sociological interactions that have existed between men and women throughout world history, and New Zealand’s historical treatment of women is no exception to this. 22 When the British colonised New Zealand in the mid-19th century, they brought with them their ideas and practices that served to treat women as second-class
17 Harriet Winn “Thursdays in Black: Localised Responses to Rape Culture and Gender Violence in Aotearoa New Zealand” in Caroline Blyth, Emily Colgan and Katie B Edwards (eds) Rape Culture, Gender Violence, & Religion (Springer Nature, Switzerland, 2018) 51 at 51.
18 Ministry for Women “What’s My Gender Pay Gap? International Comparisons” <www.women.govt.nz>.
19 Meier, above, n 3.
20 Above n 3.
21 Ministry of Justice, above n 3, at 51.
22 Golan Luzon “Criminalising Sexual Harassment” (2017) 81 J. Crim. L 359 at 361.
citizens.23 Women existed to be wives, mothers, and housekeepers.24 Women could not vote or stand for Parliament,25 nor could they own property.26 Women’s education was considered a waste of time (unless it related to cooking, sewing, or housework).27 Once a wife, a woman was considered to “belong” to her husband, like a piece of property.28 In legal terms, she could not be raped by her husband; rather it was her role to serve him, and that involved having sex with him when he pleased.29
New Zealand has since moved away from its overtly discriminatory treatment of women as lesser in social and legal status to men. Women could vote from 1893 and stand for Parliament from 1919.30 Rape within marriage became a crime in 1985.31 New Zealand’s education standards gave schoolgirls access to all subjects beyond just the domestic sciences in the late 1970s.32 The Human Rights Act 1993 made sex a prohibited ground of discrimination.33
However, the ideology behind the historical mistreatment of women continues to rear its ugly head in certain contexts. Historical treatment of women has set a foundation of gender norms where male dominance is normalised, and manifestions of misogyny are trivialised.34 A prime example of such manifestation is the practice of street harassment.35
Although street harassment is a more subliminal form of misogyny compared to the misogyny women have historically faced, the resulting harms remain extensive. The following subparts discuss those harms.
23 Julie Evans and others Equal Subjects, Unequal Rights (Manchester University Press, Manchester, 2003) at
140. Note that this dissertation has only considered New Zealand’s historical treatment of women post- colonisation. This is because the status of wāhine in pre-colonial Aotearoa New Zealand is beyond the scope of this dissertation, as New Zealand’s criminal law is mostly based on common law norms and culture.
24 Julia Tolmie “Coercive control: To criminalize or not to criminalize?” (2019) 18 CCJ 50 at 56.
25 Evans and others, above n 23, at 141.
26 Te Ara “Gender Inequalities” Te Ara Encyclopedia of New Zealand <www.teara.govt.nz>.
27 Ruth Fry It’s Different for Daughters (New Zealand Council for Educational Research, Wellington, 1985) at 25, 51 and 62.
28 Rachel Tombs ”‘The Most Vital Change’ Feminist Activism and the Criminalisation of Marital Rape in 1980s New Zealand” (MA Thesis, University of Otago, 2021) at 44.
29 At 4.
30 Te Ara, above n 26.
31 Above n 26.
32 Above n 26.
33 Human Rights Act 1993, Part 2.
34 Luzon, above n 22, at 361.
35 Zempi and Smith (eds), above n 10.
Street harassment allows patriarchal stereotypes to be reinforced in a more subliminal way, often under the disguise of flattery, or “boys just being boys.”36 Scholars hypothesise that some modern men are threatened by the increasingly equal status afforded to women in areas like education and employment, and thus engage in acts of street harassment to assert their dominance.37
Street harassment as a reinforcement of male power and dominance is evident when one considers the sexual nature of both verbal and non-verbal harassment. Street harassment involves sexualizing women in the public sphere38 – a space where few women invite sexualisation. This reinforces the stereotype of women as the lesser gender because it conveys that a woman’s value comes from her “sex appeal” to men, or how physically attractive she is.39 This is even clearer when a particular form of verbal street harassment is considered: Harassment as a response to rejection. When a compliment or sexual advance is ignored or rejected by a woman, the male perpetrator may become angry, and more serious forms of street harassment like verbal threats, insults, or physical harassment may occur.40 The perpetrator interprets the rejection as unfair and retaliates in order to punish the woman for not giving him what he wants.41
The flipside of this sense of entitlement on the part of the male perpetrator is the degradation the female victim experiences, whether consciously or subconsciously.42 As mentioned, street harassment conveys the message that women exist for the sexual enjoyment of men, and ultimately, that women are at their mercy.43 This leaves some women feeling vulnerable to
36 Davis, above n 4, at 153; Joy Reid “Calls for sexual consent education to be compulsory in NZ schools” (7 March 2022) Re: News <www.renews.co.nz>.
37 Norma Oshynko “No Safe Place: The Legal Regulation of Street Harassment” (LLM Thesis, University of British Columbia, 2002) at 13.
38 by commenting on their appearance or some other non-verbal expression that makes clear the perpetrator is enjoying them in a sexual way.
39 Luzon, above n 22, at 366.
40 Helena Kennedy Misogyny: A Human Rights Issue (Working Group on Misogyny and Criminal Justice, March 2022) at 9.
41 At 9.
42 Zempi and Smith (eds), above n 10.
43 Oshynko, above n 37, at 15.
degradation and objectification at any given moment in the public sphere.44 Accordingly, women take responsibility for the harassment they experience by “covering up” when in public, or by avoiding public spaces where street harassment is more likely.45 This sense of female responsibility has become the norm, which contributes to the narrative that it is a woman’s job to prevent street harassment, rather than a man’s job not to inflict it.46
Further, women’s internalisation of responsibility for the street harassment they experience acts as a gateway to a sense of responsibility for more serious sexual harms they experience. Evidence from a New Zealand study published in 2007 suggests that women conditioned into perceiving more minor instances of misogyny (like street harassment) as their own fault go on to accept more serious instances of misogyny.47 In that study, Chris Sibley et al provided female participants with two lists of sexist statements and requested the participants to indicate whether they agreed with them. The first list was made up of statements of “benevolent system” (e.g., “Many women have a quality of purity that few men possess”). The second list was made up of statements of “hostile sexism” (e.g., “When women lose to men in a fair competition, they typically complain about being discriminated against”). Participants were required to complete the surveys twice, either six or 12 months apart. Sibley et al found that women who took no issue with statements of benevolent sexism in the first round of the survey went on to accept the more hostile forms of sexism in the second round of the survey.48 This was said to be consistent with Ambivalent Sexism Theory: The idea that well-meaning or benevolent forms of sexism (e.g., “You look lovely in that dress, darling”) act as a gateway to women’s acceptance of more hostile forms of sexism (e.g., “You’re asking for it in that dress, slut”). It follows that women, conditioned into accepting acts of street harassment as their own fault, are “disarmed” when it comes to resisting or defending themselves against more serious acts of street harassment.49 Rather, they internalise the objectification, and thus the social model of patriarchal power and female subordination.
44Zempi and Smith (eds), above n 10.
45 Davis, above, n 4, at 145.
46 At 145.
47 Chris Sibley, Nickola Overall and John Duckitt “When Women Become More Hostilely Sexist toward their Gender: The System-Justifiying Effect of Benevolent Sexism” (2007) 57 Sex Roles 743 at 743.
48 At 747.
49 At 753.
It cannot be said that all women internalise acts of misogyny and street harassment like the women discussed above. In fact, some women in Sibley et al’s study were in stark disagreement with the statements of benevolent system in round one of the study, and were in even stronger disagreement with the statements of hostile sexism in round two.50
However, women who recognise benevolent acts of sexism (like street harassment) for what they are, can still experience psychological harm. Swim and Hyers’s study found that women who took issue with the sexist comments and treatment they received, and who wanted to speak out against it, were nonetheless curbed by social norms of acceptance.51 Female participants were placed into a room with either three male confederates, or two male confederates and one female confederate. The group was given a list of 15 men and 15 women, each with different occupations. They then had to select 12 individuals from the list to join them on a deserted island, based on who they thought would be most useful in contributing to the group’s survival. During discussion as to which individual to select, the confederates made misogynistic comments about women (e.g., “We need more women on the island to keep the men satisfied” and “We definitely need to keep the women in shape”). The female participants were later asked to write down their thoughts about the group discussion. Swim and Hyers found that female participants who took issue with the comments made by confederates nonetheless felt they could not retaliate. On the basis of these results, the researchers concluded that the women did not respond to misogynistic acts or comments because of existing social pressures to remain polite and not overreact, and to further avoid negative perception as a “feminist.”52 Extrapolating from this, Sibley et al’s findings suggest that some women in society feel it is safer to put up with misogyny, even though it offends them, because they do not want to be seen as acting outside of society’s gendered expectations.
Street harassment contributes to the reinforcement of patriarchal power by creating “zones of hostile space.”53 That is, women make decisions about where to go, who with, and when, to
50 Sibley, Overall and Duckitt, above n 47, at 751.
51 Janet Swim and Laura Hyers ”’Excuse Me – What Did You Just Say?!’: Women’s Public and Private Responses to Sexist Remarks (1999) 35 Journal of Experimental Social Psychology 68 at 68.
52 At 69.
53 B Leach, E Lesiuk, and P Morton” Perceptions of Fear in the Urban Environment” in ME Mazey and DR Lee (eds) Her Space, Her Place: A Geography of Women (Association of American Geographers, Washington D.C, 1983) 10 cited in Oshynko, above n 37, at 14.
protect themselves from these spaces where street harassment could occur.54 They may choose to drive instead of walk, or avoid certain suburbs or areas when deciding where to live.55
For women who still choose to enter public places where the risk of street harassment is higher (e.g., alone at night-time), public areas remain “genderised” for males, whereby women may only enter on patriarchal terms.56 That is, women who choose to step into the public domain do so on the understanding that males may sexualise or degrade them. To reduce the chances of this happening, women will wear headphones, avoid eye contact, dress in conservative clothing, and cross the street to avoid men.57 In turn, this excludes women from public areas in that women are prevented from being their “authentic selves.”58 As a result, women lose their right to a degree of autonomy in the public sphere where “zones of interpersonal distance” are normally respected.59
Some scholars argue that street harassment goes on to make room for more serious sexual crimes against women.61 It is hard to find empirical evidence to support this assertion; instances of street harassment are often unreported, and even if they are reported, are not recorded by police.62 However, in the absence of empirical evidence, there is still solid foundation for the suggestion that street harassment can act as a gateway to more serious offending.63 As has been argued in this chapter, acts of street harassment reinforce the view for both male perpetrators and female victims that men are entitled to sexually enjoy women and control their movements in public. More serious instances of sexual violence, like assault and rape, are also about entitlement and control over female victims.64 It is at least plausible to suggest that the normalisation of lower-level street harassment paves the way for men to take that sense of entitlement and control further by committing more serious sexual crimes against women.65
54 At 14.
55 Davis, above n 4, at 144.
56 At 162.
57 Davis, above n 4, at 145.
58 At 146.
59 Bowman, above n 5, at 144.
60 Tracee Ross “A women’s fury holds lifetimes of wisdom” (TED Talk, 2018).
61 Arndt, above n 6, at 90.
62 Rochelle Rolston ”Addressing Hate Crime in New Zealand: A Separate Offence?“ (LLB (Hons) Dissertation, Victoria University of Wellington, 2019) at 8.
63 Lisa Sugiura The Incel Rebellion: The Rise of the Manosphere and the Virtual War Against Women (Emerald Group Publishing, 2021) at 99.
64 At 99.
65 Oshynko, above n 37, at 49.
Feminist theorists use Emma Pitman’s “human pyramid of misogyny” to illustrate this argument.
Pitman’s pyramid suggests that acts of street harassment are best understood as part of the lower levels of the pyramid of misogyny, which lay the foundations for more serious forms of misogyny to build upon.66 Pitman explains that even though one man may go no further than street harassment as a form of misogynistic offending, his actions nonetheless encourage other men to engage in more serious offending.67 In other words, one man’s “innocuous” makes room for another man’s “horrific.”68
From the preceding analysis, it is clear that street harassment gives rise to a myriad of harms for women both individually and as a group. This gives rise to the question of what can be done to prevent it.
Like many other countries, New Zealand houses many social activism groups advocating for the eradication of street harassment and sexual violence against women (e.g., Women in Urbanism, Thursdays in Black, and other forms of smaller community-based activism through social media). With social media platforms’ wide reach, social activists can effectively raise awareness of the issue, including among perpetrators, or would-be perpetrators, by sharing women’s stories and experiences to thousands of people instantly.69
However, despite such activism, street harassment continues to be a prevalent issue in New Zealand.70 Although social activism is effective in raising awareness, scholars hypothesise that street harassment continues to be a problem because social activism alone creates no real “increased cost” for men who engage in the act.71 The law, on the other hand, can do just that.72
66 At 100.
67 Sugiura, above n 63, at 99.
68 Ross, above n 60.
69 Maeve Olney “Toward a Socially Responsible Application of the Criminal Law to the Problem of Street Harassment” (2015) 22 Wm & Mary J Women & L 129 at 140.
70 Meier, above n 3; Ministry of Justice, above n 3, at 70.
71 Arndt, above n 6, at 90. Although a full analysis of the role of social activism in addressing street harassment is beyond the scope of this dissertation, this perhaps explains why street harassment remains a consistent occurrence in the lives of New Zealand women, and the harms that come with it.
72 Arndt, above n 6, at 90.
Turning now to the role of the law in addressing street harassment, there are two steps to the analysis. The first step is to consider whether New Zealand’s legal system is already equipped to address street harassment. More specifically, whether acts of street harassment may already be prosecuted under existing offences. If they cannot, the question becomes whether New Zealand should perhaps introduce a new offence that criminalises street harassment specifically. The following addresses both of these questions in turn.
III. EXISTING OFFENCES: ARE THEY ADEQUATE?
This chapter outlines existing offences within New Zealand’s legal regime that may already apply to acts of street harassment. The analysis shows that each type of street harassment contemplated by this dissertation (i.e., catcalling, verbal threats, and physical acts) may be prosecuted under one of these offences. However, this chapter further argues that to prosecute acts of street harassment under these provisions would be in violation of the “fair labelling principle.”
The offence of common assault captures a wide variety of conduct, criminalising any act which meets the statutory definition of “assault.” “Assault” is defined as:73
The act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose.
In Collins v Wilcock, the presumption was established that any application of, attempt to apply, or threat to apply, force amounts to an “assault” where such application of force goes “beyond generally acceptable standards of conduct.”74 It follows that any form of street harassment involving an application of force, such as groping or another form of inappropriate touching, could amount to an “assault” if it is proven that the act is beyond generally acceptable standards of conduct. Despite the prevalence and trivialisation of street harassment in New Zealand, it is likely that an act of street harassment such as groping would be considered to go beyond generally accepted standards of conduct.75
The common assault provisions could also apply to acts of street harassment amounting to a verbal threat, provided that either the perpetrator could in fact carry out the threat, or the victim has the reasonable belief that the perpetrator could carry out the threat. For example, a threat of “I’m going to rip that skirt off if you’re not careful” would only amount to an “assault”
73 This is defined at s 2 of each Act, in identical wording.
74 Collins v Wilcock [1984] 1 WLR 1172, 3 All ER 374(DC).
75 See Chapter II for a discussion of this prevalence and trivialisation.
where the perpetrator either can rip the skirt, or the female victim reasonably believes that they can.
Section 194 can be charged as an alternative to the aforementioned common assault provisions, it has the same definition of “assault” as those provisions, with the additional requirement that the defendant is a male, and the victim a female. This is the only provision under New Zealand’s existing framework that could be used to recognise the male-perpetrator/female- victim dynamic of street harassment.
Section 4(1)(c) makes it an offence to use “any threatening or insulting words” where the perpetrator is “reckless [as to] whether any person is alarmed or insulted by those words.” This could cover verbal threats that fall short of the standard of “assault” under the aforementioned common assault provisions, as there is no additional requirement of the perpetrator having the ability to carry out a threat or the victim reasonably believing the perpetrator can do so. Section 4(1)(c) could apply not only to verbal street harassment amounting to a threat, but also to verbal harassment that falls short of a threat yet which is still harmful to the woman who experiences it (like catcalling).
Also relevant to prosecuting acts of street harassment is section 4(1)(d), which makes it an offence to address “any ‘indecent or obscene words’ to any person within hearing of any public place.” This could also capture acts of non-threatening verbal street harassment.
Section 135 carries the same definition of assault as previously mentioned in connection with common assault. Accordingly, both physical and verbal street harassment amounting to a threat could be covered by s 135. The Court of Appeal in R v Alwyn76 provided that an “indecent” assault takes place where the alleged act would be regarded as indecent by right-thinking members of the community generally.77 This coßuld apply to instances of physical touching or verbal threats, provided the “indecency” test is met. Again, it is likely that groping or verbal
76 R v Aylwn [2007] NZCA 458
77 At [35].
threats would be considered indecent by right-thinking members of society, however there is no “test case” available to be certain.78
Section 27 makes it an offence for a person to “intentionally or obscenely expose any part of their genitals in a public place, or within view of a public place.” This would cover the act of flashing. Under section 125, it is an offence to “wilfully do any indecent act in any public place to which the public have or are permitted to have access, or within view of any place.” This would cover masturbating.
Sections 27 and 125 are routinely applied to acts of flashing or masturbation in the presence of a woman in public.79 As such, flashing and masturbating are two forms of street harassment already explicitly and clearly addressed by the criminal law.
As set out above, New Zealand’s existing framework of criminal offences can at least theoretically be used to prosecute the different types acts of street harassment covered by the working definition. However, this dissertation contends that it would be a violation of the fair labeling principle to prosecute street harassment under existing offence provisions (with the exception of s 194 of the Crimes Act: “Assault by a male on a female”).
The fair labelling principle first emerged in academic literature in 1981.80 As a more recent doctrine, it surfaced following the increase in the criminal law’s taxonomy in response to evolving social norms.81 The principle holds that where a marginalised social group (in this
78 Westlaw NZ, Lexis Advance, and New Zealand Legal Information Institute databases were searched for a case where indecent assault has been used to prosecute an act of street harassment. All of the following search terms were included, both in differing combinations and altogether: “indecent assault”, “135”, “Crimes Act”, “harass!”, “public”, “street”, “woman”, and “gender.” However, no appellate law involving an indecent assault conviction for an act of street harassment was found. Again, although somewhat speculative, this suggests that despite that, despite its theoretical applicability, s 135 is not used to by police and prosecutors to address acts of street harassment.
79 New Zealand Police Statistics, cited in Scott Palmer “New Zealand’s most perverted districts revealed in new stats” (19 October 2019) Newshub <www.newshub.co.nz> and Caroline Williams “Indecent exposure offences no laughing matter for victims, expert says (27 January 2020) Stuff <www.stuff.co.nz>.
80 James Chalmers and Fiona Leverick “Fair Labelling in Criminal Law” (2008) 71 The Modern Law Review 217 at 218.
81 At 217.
case, women) suffers a unique harm that has been trivialised throughout history, it should be prosecuted using an offence that makes that harm visible, as opposed to a general offence provision.82 The existing offences described in this chapter amount to “general offence” provisions, with the exception of section 194.83 This is because, although applicable to acts of street harassment in a descriptive sense (as in, the elements of existing offence provisions descriptively map onto each instance of street harassment this dissertation contemplates), they do not capture the normative harm an act of street harassment inflicts (as in, the gender-specific harm underpinning the act of street harassment).84
The negative impact of applying existing general offence provisions to acts of street harassment, as opposed to applying an offence targeted at gender-specific street harassment, is two-fold. First, the harm remains invisible to men. Without a label that recognises the sexual and gender inequality underpinning street harassment, it is difficult for men to see women’s unique suffering, as men do not suffer that same harm themselves.85 This perhaps explains why New Zealand’s existing offences are seemingly not being applied to acts of street harassment, even where the elements of the offences can be made out.86 More specifically, because the law has been developed by men and for men, enforcers continue to apply existing offences in ways that advance the interests of men only.87 To have a gender-specific offence for all acts of street harassment would bring the harmful nature of acts into clearer focus for both perpetrators and prosecutors alike.88
Second, women’s experiences of street harassment remain trivialised. Although society does recognise that street harassment is harmful to some extent (evidenced by social activists’ work), the law is seemingly not being utilised where it could be.89 Having an offence for all forms of
82 Davis, above n 4, at 153.
83 Chalmers and Leverick, above n 80, at 218. Regarding s 194, even though it recognises the gender roles at play, it cannot be used to prosecute all forms of street harassment, and in fact leaves the many forms of street harassment uncovered by the law – catcalling, and physical, non-touching instances of street harassment (e.g., a hand gesture insinuating a sexual act).
84 Zoë Prebble “Overlapping criminal offences and gendered violence: What is overlap and when is it part of the problem of overcriminalisation?” (PhD Thesis, University of British Columbia, 2018) at 369.
85 Davis, above n 4, at 153.
86 This inference is based the lack of case law available, despite evidence that street harassment of women in New Zealand is common (as aforementioned statistics and recalled experiences show).
87 Deborah Tuerkheimer ”Street Harassment as Sexual Subordination: The Phenomenology of Gender-Specific Harm” (1997) 12 Wis. Women’s L.J. 167 at 202.
88 Davis, above n 4, at 153.
89 This inference is based on the lack of case law available where general offence provisions have been used to prosecute street harassment, despite evidence that street harassment of women in New Zealand is common (as aforementioned statistics and recalled experiences show).
street harassment that expressly recognises its misogynistic underpinnings would make it clear to a female victim that redress is available, because it would be easier to recognise the experience as wrong, and ultimately give her more confidence report it.90
Further, one offence that encapsulates all forms of street harassment would grant women consistent protection from street harassment by providing equal recognition of the gendered harm underpinning each and every form of street harassment. This is in contrast with New Zealand’s current framework where section 194 has the potential to shed light on the gendered harm of an act of street harassment, yet only applies to acts of street harassment that amount to an assault.91
1 Fair labelling at sentencing?
There is a further consideration to be made regarding New Zealand’s existing legal framework before concluding that there is a gap. Although New Zealand’s existing offences provisions fail to recognise the gendered harm underlying street harassment, such harm may arguably be addressed at the point of sentencing for these offences.92
Section 9(1) of the Sentencing Act 2002 provides a list of aggravating factors a judge must consider when sentencing an offender. Section 9(1)(h) requires consideration of whether the offender committed the relevant offence partially or solely on the basis of hostility towards a social group that share an “enduring common characteristic.” The result of such consideration will be an increase in the sentence for the relevant offence where hostility towards the victim as a result of a particular characteristic is connected with the crime committed against the victim.93
Section 9(1)(h) lists race, colour, nationality, religion, gender identity, sexual orientation, age, and disability as examples of enduring common characteristics. Because this list is non- exhaustive, a judge may consider the characteristic of sex, either through reading in “sex” to the inclusive list, or through applying the explicitly protected characteristic “gender identity”
90 Turkenheimer, above n 87, at 174.
91 At 174.
92 Charlotte Brown “Legislating against Hate Crime in New Zealand: The Need to Recognise Gender-Based Violence” (2004) 35 VUWLR 591 at 592.
93 Thomas Brudholm “Conceptualizing Hatred Globally: Is Hate Crime a Human Rights Violation?” in Jennifer Schweppe and Mark Austin Walters The Globalisation of Hate: Internationalizing Hate Crime? (Oxford University Press, Oxford, 2016) at 34.
to not only gender minorities like transgendered individuals, but also women who experience crime on the basis of misogyny.94 The latter approach was endorsed by Phill Goff as Head of the Justice and Electoral Committee in 2003.95 Goff suggested that “gender identity” is to be read broadly so as to encompass any gender category, including “men, women, intersex, and transgender.”96 It follows that New Zealand’s existing hate crime framework, specifically s 9(1)(h), can be applied at sentencing for street harassment under an existing offence. Further, this arguably recognises the misogynistic nature of the act and is consistent with fair labelling ideas.
However, this dissertation argues that to apply s 9(1)(h) to an offence involving street harassment would be to ultimately mislabel the motive and harm associated with the act. Section 9(1)(h) is designed to account for “hostility” towards a social group. However, acts of street harassment do not necessarily stem from “hostility” towards women. As discussed in Chapter II, acts of street harassment stem from a sense of male superiority and entitlement ingrained in the male psyche as a result of historical subordination of women.97 As recently stated by Baroness Helena Kennedy, member of the United Kingdom’s House of Lords and expert on women’s experience of the law: 98
Hate crime, established to deal with prejudice, malice and ill-will towards minorities, does not work particularly well for women ... ill-will does not describe what men feel when they abuse or degrade women.
Because of this, it would arguably be inappropriate to consider s 9(1)(h) in relation to an act of street harassment (unless, of course, “hostility” truly connected with the offence). To do so would only be another violation of the fair labelling principle because it fails to accurately recognise the harm that women experience as a result of street harassment.
This chapter examined the existing offences under which acts of street harassment can be prosecuted, as well as possible mechanisms under the sentencing regime. While there is some scope for responding to street harassment in existing law, this chapter argues that relying upon New Zealand’s existing offence provisions would be in violation of the fair labelling principle,
94 Brown, above n 92, at 595.
95 At 595.
96 At 595.
97 Davis, above n 4, at 139.
98 Kennedy, above n 40, at 12.
and thus inadequate in capturing and recognising the harm underpinning acts of street harassment. Having established these arguments, the following chapter considers the merits of introducing a new, tailored offence of street harassment.
IV. PROPOSING A NEW OFFENCE: CONSIDERING AND ADDRESSING THE CONCERNS
This chapter discusses the possibility of introducing a new offence that targets street harassment. It considers the concerns posed by doing so, with reference to overseas jurisdictions that have introduced new offences for street harassment. These concerns fall into three categories: Overcriminalisation, using the law as a symbol for change, and freedom of speech. After considering these concerns, the chapter ultimately concludes that these concerns are not determinative and that the benefits of introducing a new offence provision targeted at street harassment outweigh them.
“Overcriminalisation” describes the creation of new statutes and offences that either: Criminalise “innocuous behaviour” that has not been considered criminal in the past, or “re- criminalise” a behaviour that is already caught by an existing statute or offence provision.99 The following three subheadings deal with three different facets of overcriminalisation in relation to street harassment. First, the use of legal means to address street harassment, even though less invasive non-legal means are available. Second, using the criminal law is a disproportionate resolution to the harm that street harassment causes. Third, creating a new offence where existing offences already criminalise acts of street harassment.
Arguably, introducing a targeted offence for street harassment is unnecessary given the availability of non-legal means (like social activism and education). As explained in Chapter II, the problem of street harassment is currently being tackled mainly by social activist groups on social media (e.g., Women in Urbanism, Thursday in Black, and other forms of smaller community-based activism),100 and there is no doubt that such groups are successful in raising awareness of the social problem that street harassment poses.101 However, again as discussed
99 Michal Buchhandler-Raphael “Overcriminalizing Speech” (2015) 36 Cardozo L Rev 1667 at 1670.
100 Again, it is presumed that the law is not being used given the lack of case law involving prosecution under existing general offence provisions.
101 Olney, above n 69, at 140.
in Chapter II, Arndt suggests that social activism can only go so far in incentivising men to refrain from the problematic behaviour, because it does not increase the cost of the behaviour for male perpetrators.102 Additionally, social activism does little to teach men to stop engaging in the behaviour, because the harm that women experience continues to remain outside of the “male sphere” or consciousness.103 More specifically, Tuerkenheimer and Davis hypothesise that men may in fact see the harm that women experience, but because they do not suffer that harm themselves, the misogynistic sense of entitlement ingrained throughout history persists.104 Accordingly, substantial eradication of acts of street harassment may arguably only occur when the men who inflict harm render themselves open to another form of harm – sanction for their conduct.
There is also support for introducing an offence targeted at street harassment if one considers how social activism may work to entrench female inferiority and male power further. One aspect of social activism is educating women as to how they can stand up to the men who harass them.105 Although perhaps helpful to an individual woman in one instance of street harassment, advising women on how to stand up to a harasser tells women that street harassment is their own problem to address, rather than a social problem, which can amplify women’s feelings of inferiority and self-blame for the harassment they experience. 106 In contrast, introducing an offence for street harassment would make it clear that it is not women’s responsibility to stand up to the men who harass them. Rather, it would tell women that their fears and their experiences are seen, heard, and understood, and that they are expressly protected by the law.107
Proportionality is one of several core penal principles.108 It represents that idea that criminal punishment for a certain behaviour needs to be proportionate to the severity of that behaviour.109 Although Chapter II explained the spectrum of harm underpinning street harassment for both the women who experience it and society at large, some still argue that
102 Arndt, above n 6, at 90.
103 Davis, above n 4, at 153; Tuerkheimer, above n 87, at 202.
104 At 153; at 202.
105 Olney, above n 69, at 140.
106 At 143.
107 Ancheta, above n 13, at 589.
108 Mordechai Kremnitzer “Constitutional Principles and Criminal Law” (1993) 27 ILR 84, cited in Luzon, above n 22, at 363. Alongside fair warning, culpability, and conforming to public consciousness.
109 Luzon, above n 22, at 363.
law targeted at street harassment is disproportionate to the harm women experience as a result of it.110 For that reason, it is important to revisit that harm in the context of whether the use of criminal law is proportionate to such harm.
Essentially, those who suggest that acts of street harassment are not sufficiently harmful to warrant legal intervention are speaking from “the perpetrator perspective.”111 That is, the perspective that an act of street harassment is an isolated, fleeting event that is over as quickly as it begins.112 However, as discussed in Chapter II, the harm of street harassment stems beyond the individual woman who experiences an isolated instance of it. Acts of street harassment cause harm to gender equality at the societal level through reinforcement of patriarchal power and male entitlement to objectify women.113 This wider understanding of the harm behind street harassment is called the “violence-against-women” perspective.114
Once one shifts their understanding of the harms of street harassment from the “perpetrator” perspective to the “violence-against-women” perspective, one can see how an offence targeting street harassment is proportionate to the harm it causes. For example, take a women who has no issue with a man smacking her on the buttocks as she walks past him on the street, commenting “nice ass!” In fact, not only does she have no issue with this, but she actually finds it flattering. Looking at this instance from the “perpetrator” perspective, criminal punishment is disproportionate because no personal injury has been inflicted.115 However, from the “violence-against-women” perspective, to argue that because not all women suffer individual harm from every instance of street harassment they experience, is to entirely ignore the message that allowing such conduct sends to perpetrators, and to any person who witnesses the harassment: That sexualising women in public places is okay, and more broadly, that male dominance over women is normal.116 It follows that from this wider perspective, that the harm underpinning street harassment is sufficiently serious to the extent that criminal punishment of some form is warranted – that is, sufficiently serious consequences are needed to address the problematic message that acts of street harassment send to female victims, male perpetrators, and public observers alike.
110 At 363.
111 Olney, above n 69, at 143.
112 At 143.
113 Luzon, above n 22, at 361.
114 Olney, above n 69, at 143.
115 Arndt, above n 6, at 93.
116 At 94.
Chapter III introduced the fair labelling principle in the context of explaining why New Zealand’s existing criminal offence provisions fail to recognise the harm underpinning street harassment. This part further explains this argument, demonstrating how a new offence targeted at street harassment would not amount to overcriminalisation via re-criminalisation.
Re-criminalisation of problematic behaviour is the most commonly cited form of overcriminalisation for those who oppose the introduction of new law to solve a social problem
As stated in Chapter III, New Zealand’s criminal offence provisions apply to acts of street harassment in a “descriptive” sense.121 That is, the elements of existing offence provisions can be made out for each instance of street harassment this dissertation contemplates.122 It follows that introducing a new offence for street harassment would arguably amount to re- criminalisation of street harassment. However, according to the fair labelling principle, re- criminalisation does not occur when a new offence is needed to capture the “normative” aspect of the offence – that is, the actual harm underpinning the act of street harassment.123 It follows that introducing a new offence for street harassment is justified if it can be shown that overlap with existing offence provisions is descriptive only, and not normative.124 As Chapter II established, the harms underpinning street harassment run much deeper than the physical act any one instance of street harassment involves, and thus are not covered by existing offence provisions in a descriptive sense. Again, unlike other modes of assault or harassment captured
117 Rolston, above n 62, at 44.
118 Prebble, above n 84, at 52.
119 At 52.
120 At 52.
121 Prebble, above n 84, at 69.
122 Recall, for example, that the elements of common assault (application of force and so on) map on to physical street harassment, or verbal harassment amounting to a threat.
123 Prebble, above n 84, at 116.
124 At 117.
by existing provisions, the harm resulting from an act of street harassment does not end with the individual harm experienced by the female on the receiving end of an act of street harassment.125 Rather, the harm also lies in the exacerbation of the longstanding, problematic reality of patriarchal power over women.126 It follows that existing provisions do not fairly recognise the unique, gendered harm of street harassment, and any overlap with an offence targeted at street harassment would be descriptive only.
Another argument against introducing a new offence for street harassment is the potential difficulty of enforcement. Some scholars argue that because acts of street harassment can happen so quickly and are often inflicted by a complete stranger, identifying and charging the offender will be difficult without police presence on every street corner.127 Further, an offence targeted at street harassment may serve as more of a symbolic condemnation of street harassment, as opposed to a punishment for engaging in it.
Jeremy Waldron128 argues that introducing new law for the primary purpose of expressing condemnation and educating the public as a symbol for change is to rely on the wrong tool in the toolbox, because the simple existence of an offence condemning discrimination is not enough to deter perpetrators.129 More specifically, that using the law as a symbol for change, or to set a standard of behaviour for society to aspire to, does not work if the public is not already willing to abide by that law:130
In no society is the state able to offer these guarantees [against discrimination] on its own account without a complementary assurance that ordinary citizens will play their part in the self-application of the laws.
Those who agree with Waldron suggests that educating perpetrators needs to come through “the appropriate civic norms”, like schools, if we are to see perpetrators of discriminative acts
125 See Chapter II.
126 See Chapter II.
127 Olney, above n 69, at 162.
128 Jeremy Waldron is a leader commentator on hate speech and anti-discrimination law in New Zealand.
129 Stephan Newman “Finding the Harm in Hate Speech: An Argument against Censorship” (2017) 50 Canadian Journal of Political Science/Revue 679 at 687, quoting John Waldron.
130 At 688.
deterred.131 Only then will perpetrators conform voluntarily to a law that is difficult to enforce in practice.132
While Waldron and his supporters’ claim is logical, others argue that the law’s symbolic, educative and aspirational role is crucial in addressing sexual harms against women. To illustrate how anti-misogyny laws can challenge the patriarchal status quo, Deborah Tuerkheimer uses the successful introduction of sexual harassment laws as a vehicle for social change in the workplace. She states that prior to the development of sexual harassment laws in connection with existing anti-discrimination frameworks, discrimination on the basis of sex was incredibly difficult to challenge because there was simply no method for formally identifying it as part of a wider social issue of gender inequality.133 Some women who experienced acts of discrimination could not see it as part of a larger, connected network of discrimination, but rather saw it as an isolated incident that was not serious enough to address. However, Tuerkheimer found that once workplace gender discrimination was formally sanctioned, it became clearer for both women who experienced discrimination and wider society that such discrimination was part of the broader issue of gender equality. Accordingly, more conversations around sex-based discrimination could occur – both about past experiences, and how to prevent them in the future. Catherine MacKinnon, who also examined the power of the law as signaling condemnation of sex-based discrimination, coined this process one of “transformation”:134
Life becoming law and back again is a process of transformation. Legitimized and sanctioned, the legal concept of sexual harassment reenters the society to participate in shaping the social definitions of what may be resisted or complained about, said aloud, or even felt.
Introducing an offence targeted at street harassment could give rise to this same transformation. Women would have the ability to identify, understand, and talk about their experiences of street harassment. In turn, men would perhaps have greater difficulty in justifying any act of street harassment they engage in, whether to themselves, or to others.
131 At 687.
132 Simon Thompson “Understanding and regulating hate speech: A symposium on Jeremy Waldron’s The Harm in Hate Speech” (2014) 13 Contemporary Political Theory 88 at 90.
133 For example, in New Zealand, “sex” is a prohibited ground of discrimination under the Human Rights Act 1993. This means that where a person is discriminated against on the basis of their sex in certain contexts like their employment or conveyancing, that amounts to sexual harassment, and they are entitled to a remedy.
134 Catharine MacKinnon, “Sexual harassment of working women” (1979), cited in Yaiza Janssens “Sexist street harassment and the law in Belgium: legal assumptions and lived realities” (PhD (Law) Thesis, Ghent University, 2018) at 146.
This same issue of using the law as a symbol arose in Belgium’s parliamentary discussions prior to the introduction of an offence criminalising sexism, with some members questioning using the law as a symbol.135 In asserting the symbolic value of the incoming offence, Belgian legislators turned to examples of existing offences that, while difficult to enforce in practice, have nonetheless aided in protecting women from harm: These being the prohibition of female genital mutilation and the prohibition of forced marriages. The legislators said that while these offences are difficult to enforce (as they often occur behind closed doors), the offence have nonetheless acted as a deterrent through setting an example for “a changed attitude towards sexism.”136 Scotland’s consideration of a new law to protect women from acts like street harassment came to the same conclusion. Baroness Helena Kennedy, chair of the Misogyny and Criminal Justice in Scotland Working Group,137 asserted:138
There is a role for the law – to make it absolutely clear what society does and does not accept; a role for law enforcement – to ensure accountability and (possibly) act as a deterrent
... that helps men and boys understand the difference between harassment of a stranger and a kind compliment to a friend or lover ...
While Belgium and Scotland’s discussions centre around the deterrent effect of a symbolic law against misogynistic acts, such symbolism is equally valuable in the context of validating women’s experiences and the harm resulting from those experiences.139 In a society where the law is designed to provide a remedy for those who suffer an injury, providing a remedy in the case of street harassment recognises the harm of street harassment as an injury worth remedying.140 Further, this can reverse the trivialisation and normalisation of acts of street
135 In 2016, the Anti-Sexism Act 2014 came into force in Belgium. Under the Act, a person is liable to imprisonment for up to one year and a fine of up to €1,000 if they engage in a “gesture or action in a public space, which is “clearly meant” to express contempt against a person because of his/her gender, or to suggest someone is inferior because of his/her gender, or to reduce the person to his/her “sexual dimension”, and which leads to a serious violation of the person’s dignity.”
136 “Justice Commission of the Chamber Representatives Report” (2013-2014) No 53-3297/003, cited in Janssens, above n 134, at 150. A copy of the report is unavailable in English.
137 In April 2021, Scotland introduced the Hate Crime and Public Order (Scotland) Act 2021. In introducing the Order, Parliament left it open for “sex” to be added to the list of protected characteristics by way of secondary legislation. At that time, Baroness Helena Kennedy QC was asked to establish an independent working group to determine whether doing so would be effective in protecting women from crime, or whether a stand-alone offence for misogynistic acts would be more suitable. Following its establishment in February 2021, the working group (chaired by Kennedy) spent months reviewing research and examining empirical evidence on women’s experience of misogynistic conduct. The group also looked at how other jurisdictions deal with crimes involving misogyny. In March 2022, the working group released their report, titled “Misogyny: A Human Rights Issue.” The report instead recommended a separate piece of legislation containing three new offences specifically designed to address crimes acts of misogyny, including street harassment.
138 Kennedy, above n 40, at 51.
139 Tuerkheimer, above n 87 at 205.
140 At 205.
harassment, and thus challenges the status quo of patriarchal power that acts of street harassment only serve to reinforce. Ultimately, while using the law as a symbol is challenged by some critics, evidence from Tuerkheimer’s work and Belgium’s parliamentary discussions supports the argument that the law can act as a powerful symbol for change, regardless of how it is enforced in practice.
With any proposed law which seeks to restrict what any individual can and cannot verbally express, comes the question of whether that law will unreasonably infringe upon that individual’s freedom of speech.141 The rationale underpinning the basic human right to freedom of speech is that it allows for a democratic and pluralistic society to flourish through “the realisation of a free market of ideas.”142
Nonetheless, it is well-known that none of our basic human rights are absolute, as illustrated in proceedings against the Belgian government.143 Shortly after Belgium’s Anti-Sexism Act first came into force in 2016, an annulment of the law was sought by the Parti Libertarien in the Constitutional Court.144 The claimants asserted that the new offence provision unlawfully infringed upon the right to freedom of expression under Article 19 of the Belgian Constitution and Articles 9 and 10 of the European Convention of Human Rights.145 The Belgian government successfully argued that the limit on a perpetrator’s right to freedom of expression was justified. There were several arguments underpinning the government’s success. Firstly, it argued that restricting a perpetrator’s freedom of speech is justified because of the freedoms which acts of street harassment unreasonably violate for a victim: I.e., the right to security of the person, the right to equality and to human dignity. The government further emphasised the value of having sexism as an offence from a wider societal perspective. It argued that the infringement on a perpetrator’s freedom of expression is justified in order to suppress street harassment as an expression of gender inequality and violence against women. Above and beyond these arguments, the Belgian government argued that verbal street harassment as an
141 As raised in “Justice Commission of the Chamber Representatives Report”, cited in Janssens, above n 134, at
7. A copy of the report is unavailable in English.
142 No. 72/2016 Constitutional Court (GwH), cited in Janssens, above n 134, at 156. An online copy of the official judgment is not available in English, and no other sources I have looked at provide this information. 143 Amanda Roenius “My name is not beautiful, and no, I do not want to smile: Paving the path for street harassment legislation in Illinois (2016) 65 DePaul L. Rev. 831 at 862.
144 No. 72/2016 Constitutional Court (GwH), cited in Janssens, above n 134, at 131.
145 Eva Albers “#MeToo or #TooMuch? The Belgian anti-sexism law and the fight against sexism” (Masters in Human Rights and Democratisation Thesis, Eötvös Loránd University, 2018) at 29.
act of free speech does nothing to further the rationale for free speech – as an act of subordination of women and empowerment of men, street harassment prevents women from confidently, safely and meaningfully engaging in a democratic and pluralistic society.146
There is also broad academic support for the argument that an offence targeted at street harassment is a justifiable limit on freedom of speech. Cynthia Bowman argued that a victim’s right to liberty and equal treatment must outweigh a perpetrator’s freedom of expression.147 Other scholars also agree that limiting perpetrators’ freedom of speech is necessary to preserve victims’ ability to exercise their own freedom of speech in the wider public sphere.148
Related to freedom of speech is the concern that an offence of street harassment would negatively impact those seeking to meet a potential sexual partner in a public space. This was another argument that arose in Belgium’s parliamentary discussions.149 Some members considered the offence of sexism to overstep freedom of speech because it had the potential to criminalise harmless flirting and well-meaning compliments. However, this concern was ultimately resolved on the basis that the wording of the offence is explicitly aimed at verbal expressions which express “contempt” on the basis of a person’s gender, or that suggest a person is “inferior”, or that “reduces a person to their ‘sexual dimension’” – none of which describe flirting.150
This chapter has considered three categories of concerns associated with introducing a new offence of street harassment in New Zealand: Overcriminalisation, using the law as a symbol for change, and freedom of speech. Regarding the concern of overcriminalisation, it is claimed that criminalising street harassment is necessary to generate meaningful social change, is a proportionate response to the harm it inflicts, and is justified in accordance with the fair labelling principle. Further, that using the law as a symbol is desirable given the success that past laws have had for women, and justifiably infringes on perpetrators’ freedom of speech in the context of verbal street harassment.
146 No. 72/2016 Constitutional Court (GwH), cited in Janssens, above n 134, at 155.
147 Bowman, above n 5, at 545.
148 At 548.
149 As raised in “Justice Commission of the Chamber Representatives Report”, cited in Janssens, above n 134, at
292. A copy of the report is unavailable in English.
150 At 292.
Ultimately, this chapter concludes that introducing a new offence provision targeted at street harassment is not only justified, but also desirable, for addressing the problem of street harassment of women in New Zealand. Consequently, the next chapter considers what form a proposed street harassment offence might take.
V. DRAFTING A PROPOSED OFFENCE
A core argument of this dissertation is the theoretical importance of introducing a tailored offence for street harassment in New Zealand. This chapter now considers the practical implementation of such an offence, and how it might be drafted. The suggested draft offence draws upon provisions in other jurisdictions that have introduced such an offence.151
In 2018, French parliament introduced Law No. 2018-703, making it a criminal offence to engage in street harassment.152 The official name for the offence is “sexist insult”, which is defined as:153
Subjecting a person to any speech or behavior with sexual or sexist connotation which either infringes their dignity because of its degrading or humiliating character, or induces an intimidating, hostile or offensive situation.
Although classed as a criminal offence, it is dealt with via on-the-spot fines. The offence is enforced through fines of anywhere between €90 and €750.154 Within eight months of coming into effect, 450 fines were issued by police.155 As of March 2022, over 2000 fines had been issued.156
As briefly mentioned in Chapter IV, Belgium’s legislator made “sexism” a criminal offence in 2014.157 The offence is defined as:158
Every gesture or deed that, in the circumstances stated in article 444 Criminal Code, is clearly meant to express contempt towards a person because of his or her sex, or to consider,
151 Note that the task of drafting a new criminal offence for street harassment is ripe for detailed analysis. To limit scope, this dissertation bases this draft offence on learnings from other jurisdictions that have introduced such an offence themselves.
152 Lacroix and others “New measures introduced by Law No 2018-702 relating to sexual and gender-based violence” (2020) 11 La Revue de Médecine 100 at 101.
153 Penal Code (France), art 621-1.
154 Article 621-2.
155 Kim Willsher “French police issue almost 450 fines under street harassment law” (30 April 2019) The Guardian <www.theguardian.com>.
156 Kennedy, above n 40, at 46.
157 Albers, above n 145, at 25.
158 Anti-Sexism Act 2014 (Belgium), art 2.
for these same reasons, this person inferior, or to reduce this person to his or her sexual dimension, which gravely affects the dignity of that person as a result.
Where the offence refers to article 444 of the Criminal Code, this means that the sexist gesture or deed must occur in a public place or in the presence of others.159 The offence is punishable either by imprisonment of up to one year, or with a court-ordered fine of anywhere between
€50 to €1000.160
While Scotland does not currently criminalise street harassment, earlier this year the “Misogyny and Criminal Justice in Scotland Working Group” (SWG) recommended that a targeted offence be introduced.161 SWG proposed the offence of “public misogynistic harassment”, which would criminalise:162Any sexual or abusive conduct, occurring in a public place, which is likely to cause fear, alarm, humiliation, degradation or distress to a woman or women, where either the accused intends to cause that effect or is reckless as to the likely effect of the conduct.
SWG’s findings are now with Scotland’s government for consideration.163
This next part considers how New Zealand should approach the drafting of an offence for street harassment, with reference to critiques of the provisions adopted in France and Belgium, and recommended by SWG.
While an offence for street harassment would be intended to address a gendered-harm, the offence itself could be drafted in either gendered terms or gender-neutral terms.164 France and Belgium use the latter, while SWG’s proposed offence uses the former. SWG’s reasoning for using gendered terms stems from concern that the misogyny underpinning the offending could
159 Albers, above n 145, at 30.
160 Anti-Sexism Act 2014, art 3.
161 Kennedy, above n 40.
162 Kennedy, above n 40, at 58.
163 Katrine Bussey and Lucinda Cameron “Nicola Sturgeon backs new report recommending proposal to criminalise misogyny” (9 March 2022) Care Appointments <www.careappointments.com>.
164 As in, to address harm to women at the hands of men.
not properly be addressed under the guise of non-gendered terms. Although seemingly logical, framing an offence in gender-neutral terms does not necessarily take away from the message that street harassment of women is not acceptable. The offence would still be aimed at “sexism”
Additionally, New Zealand’s existing criminal offences aimed at gendered harm are nonetheless phrased in gender-neutral terms. Take, for example, indecent assault.165 In 2005, Parliament amended the indecent assault provision from its past title of “indecent assault of a woman or girl” to simply that of “indecent assault.”166 The government considered it important that, while indecent assault may more often involve a male perpetrator and a female victim, the reverse situation is still possible.167 Moreover, framing the offence in gender-neutral terms ensured that the offence of indecent assault met “the fundamental principle that everyone should be equal before the law.”168
In sum, the offence should be phrased in gender-neutral terms to comply both with foundational principles of law visible in New Zealand’s existing legal framework, and to protect gender minorities alongside women.
An offence for street harassment could either require the act of street harassment to be targeted at a specific person or persons, or, it could merely require the act of street harassment to occur within view or earshot of women. France and Belgium require the former, while SWG leaves it open to either scenario.
Requiring a specific target means that the offence would not capture general opinions involving misogyny expressed in a public place, within the presence or earshot of a woman or group of women.169 SWG used the example of men on a stag night engaging in loud, misogynistic conversation on a night out where women may well hear what is being said, but are not
165 Crimes Act 1961, s 135.
166 Crimes (Amendment) Act 2005.
167 (2 March 2004) 615 NZPD 11472.
168 (12 April 2005) 625 NZPD 20005.
169 Albers, above n 145, at 34.
necessarily targeted.170 Moreover, it is questionable whether the offence can appropriately address the social problem of subliminal misogyny in the public sphere if this type of scenario is not caught by the offence.171 However, it is equally questionable whether prosecuting acts of non-targeted street harassment is overly restrictive on the perpetrator’s right to freedom of expression.
This tension can be resolved with reference to Chapter II and its discussion of the harms stemming from instances of street harassment. Ultimately, it should not matter whether an act of street harassment is aimed at a specific woman or group of women, because an act of street harassment does not only harm the woman who experiences it, but also the members of the public that see or hear it. As for concerns regarding freedom of expression, the offence would only apply to comments or actions that are actually heard or seen by others, and not just any comment or action made in a public place. It follows that an individual’s right to freedom of expression would not be restricted via prosecution until their comment or action infringes on a woman’s right to liberty and to equal treatment.172 As Chapter IV established, the latter should outweigh the former, and prosecuting acts of street harassment not necessarily targeted at a specific woman or group of women reflects that.
Accordingly, any sort of act of street harassment, whether it is targeted at a specific person or persons or not, should be captured by the offence.
Belgium’s offence requires harm to a person’s dignity (“gravely affect the dignity”). In the context of the male-perpetrator/female-victim, dynamic requiring harm to dignity suggests the offence is aimed at protecting women from feelings of subordination and inferiority in comparison with the male perpetrator. SWG’s offence focuses on the more immediate emotions felt by the victim, requiring the perpetrator to “cause fear, alarm, humiliation, degradation or distress.” France’s offence encompasses both forms of harm, requiring the perpetrator to either infringe upon the victim’s dignity, or cause feelings of intimidation, offence, or hostility.
170 Kennedy, above n 40, at 59.
171 Albers, above n 145, at 34.
172 Bowman, above n 5, at 546. See also Chapter IV, subheading D.
New Zealand’s offence should follow in France’s footsteps by encapsulating both harm to a person’s dignity, and harm by way of causing negative emotions. This more completely captures the varied harms of street harassment. Acts of street harassment not only cause negative emotions for the woman who experiences it, but also undermines their dignity by suggesting to women that they are the inferior gender whose value stems from their physical appearance and sexual desirability.173
The wording of Belgium’s offence suggests that whether a victim of street harassment experienced harm should be assessed on a subjective basis.174 However, the parliamentary preparatory notes direct the court to apply an objective standard.175 SWG’s offence also intends for harm to be assessed using an objective standard.176
Requiring an objective assessment of harm means it is up to law enforcement (either the courts or the police) to discern whether an act of street harassment would reasonably cause the harm contemplated by the offence, regardless of whether or not the victim actually experienced that harm.177 This can have negative implications for the victim, as she may see no consequences for the perpetrator, despite having experienced harm in reality. This is a very real possibility when it is remembered that New Zealand’s legal system was built, and continues to be enforced predominantly, by men.178 More specifically, a legal system predominantly enforced by men is more likely to make an objective assessment of harm that favours the male perpetrator’s perspective over a female victim. This is seen in a myriad of court cases involving sexual harm against a woman, where law enforcement’s male bias prevents a gendered harm from being addressed.179
A subjective standard would also have challenges. Although appealing in that it would give women the autonomy to decide what they consider flattering, and what they consider to be
173 See Chapter II.
174 Albers, above n 145, at 36.
175 At 36.
176 Kennedy, above n 40, at 58.
177 At 36.
178 Evans and others, above n 23.
179 Janssens, above n 134, at 104.
offensive or intimidating, a subjective standard ultimately creates uncertainty.180 This is because it prevents a perpetrator from anticipating what amounts to an act of street harassment and what does not.181 There is particular uncertainty surrounding how any individual woman may react to an act of street harassment given the level of internalised misogyny that exists in current society, as the research by Sibley et al and Swim and Hyers demonstrates.182
Evidently, both an objective standard and subjective standard raise concerns for the interpretation of harm. However, an objective standard ascertained from the “reasonable person, in that person’s particular circumstances” perspective can resolve some of the issues posed by the more generic “reasonable person” perspective. Such a standard would require law enforcement to assess the harm from the perspective of a reasonable woman.183 Moreover, it would be difficult for law enforcement to make an objective assessment based on the familiar assessment of the “reasonable man’s” perspective that has persisted throughout history.184
In order to have law enforcement properly apply the standard of a “reasonable person in that person’s particular circumstances” when assessing the harm, education would be required. The courts and police would need to learn and understand the reasonable woman’s (or other minority group’s) perspective of street harassment. This would not be a hard obstacle to overcome, as there is vast social science literature that illustrates and explains how women and men interpret sexual harassment differently.185 For example, Pryor et al’s research illustrates that most women consider sexual harassment to cover a much wider spectrum of conduct that men, and that they consider any act of sexual harassment to be significantly more harmful compared with men.186 Even further, Pryor et al found that the gap in men and women’s understanding of what is an is not a sexual crime is greatest for lower-level sexual offending, like street harassment.187 Ultimately, if New Zealand’s law enforcement was educated in how to ascertain what constitutes harm from the perspective of a reasonable person in that person’s circumstances (as in, a reasonable woman), it is likely that prosecutions for the offence of street
180 Janssens, above n 134, at 338.
181 At 338.
182 See Chapter II, subheading C, 3.
183 Or, if the victim is part of a gender minority group, then such a standard would require law enforcement to assess the harm from the perspective of a reasonable member of that group.
184 Janssens, above n 134, at 159.
185 Pryor and others “Gender differences in the interpretation of social-sexual behavior: A cross-cultural perspective on sexual harassment” (1997) 28 Journal of Cross-Cultural Psychology 509.
186 At 530.
187 At 528.
harassment would be made more consistently, and thus more meaningfully, as the woman’s perspective is at the heart of the assessment.
Some concerns remain with adopting this modified objective standard, which relate to the important issues of overcriminalisation and freedom of speech. Applying an objective assessment, even in modified form, means that where a woman finds an act of street harassment flattering, a perpetrator would nonetheless be liable if an objective assessment suggested the catcall would harm the reasonable woman. Further, the perpetrator’s right to freedom of expression would be limited despite having no impact on the victim’s right to liberty and to equal treatment.188 However theorists suggest that while internalised misogyny remains a fact of modern society, an objective standard is required “at least until that indeterminate date when men [and women with internalised misogyny] are able to see the world from a woman’s point of view.”189 That is, until it is understood that even well-meaning words or actions intended or received as flattery, may only fuel the problematic status quo of patriarchal power over women.
In New Zealand, there are three different mental elements which may be required for liability under a criminal offence: Intent, knowledge, or recklessness. Belgium, France, and SWG’s offences for street harassment all require intent.190 For this reason, this dissertation will only discuss which type of intent an offence for street harassment in New Zealand should require, and leaves to one side the suitability of knowledge or recklessness as alternative mental elements.
Requiring some form of mental intent to find liability for an offence of street harassment makes sense, as the alternative of strict liability is typically concerned with public welfare where there is a risk of harm to the public at large.191
188 Bowman, above n 5, at 554.
189 At 554.
190 Albers, above n 145, at 33; L Hébert “Dignity and Discrimination in Sexual Harassment Law: A French Case Study” (2019) 25 Wash, & Lee, J, Civ, Rts. & Soc. Just. 3 at 45; Kennedy, above n 40, at 58.
191 Nadia Dabee “The Health and Safety at Work Act 2015: The Myth of Increased Deterrence” (2016) 47 VUWLR 585 at 603. For example, the regulation of workplace health and safety involves two strict liability offences under the Health and Safety at Work Act 2015: failure to comply with a duty under the Act (section 49), and failure to comply with a duty under the Act which thereby exposes an individual to the risk of death or serious injury (section 48).
In the context of the criminal law, there are two different types of “intent”: General and specific.192 General intent would require a perpetrator to knowingly and willingly carry out an act that amounts to street harassment.193 Specific intent would also require this, with the additional requirement that a perpetrator knowingly and willingly caused harm to the victim.194 France, and SWG’s offences appear to require only general intent on the part of the perpetrator, while Belgium’s offence requires specific intent.195
Belgium’s requirement of specific intent has received criticism by scholars.196 It is very difficult to prove, particularly in circumstances where the harassment is not an overtly intimidating or fear-provoking statement (for example, “nice ass, darling!”). This is because the prosecutor only really has the perpetrator’s word to determine what the intent was.197 Moreover, a perpetrator could say they intended a sexualizing comment as a compliment or flattery, and could escape liability whether they truly meant it that way or not.198 Requiring specific intent also significantly narrows the offence’s scope when one considers the gap in understanding between men’s understanding of street harassment and women’s.199 To require specific intent would be to expect men to realise and understand the experience of women in the public sphere, and the harm that they suffer at the hands of street harassment.200 As Chapter II explained, some men simply do not understand that experience.
It follows therefore that New Zealand’s offence should follow France and SWG’s lead and require general intent only. This would shift the focus away from the intentions of the perpetrator to the harm experienced by the victim201 – something which is indeed necessary given that the offence is intended to serve a symbolic, educative function.202
192 Janssens, above n 134, at 138.
193 At 138.
194 At 138.
195 Albers, above n 145, at 40; Hébert, above n 190, at 48; Kennedy, above n 40, at 58.
196 Albers, above n 145, at 40.
197 At 34.
198 Arndt, above n 6, at 97.
199 Janssens, above n 134, at 138.
200 Olney, above n 69, at 143.
201 Olatokunbo Olukemi Laniya “Street smut: gender, media, and the legal power dynamics of street harassment, or hey sexy and other verbal ejaculations” (2005) 14 Colum, J Gender & L at 99.
202 See Chapter IV, subheading C.
Belgium and SWG’s offences both explicitly require the act of street harassment to occur in a public place, while France’s offence is silent on the matter.
Like Belgium and SWG’s offence, it is favourable to make specific reference to “public place” in the offence to avoid vagueness and uncertainty as to the reach of the offence. Too much uncertainty would leave it open to prosecutors to refrain from enforcing the offence, thus removing any momentum that the offence could have in generating social change.203
Although this dissertation has routinely referred to “street harassment”, New Zealand’s offence should be called Public Sexual Harassment. This will make it clear that the offence is not only available for acts done on public streets, but also in places like bars, restaurants, theatres, shops, and so on.
For Belgium and SWG, prosecution of street harassment requires perpetrators to participate in court proceedings, where testimonies and other forms of evidence are presented.204 In France, prosecution of street harassment is administered through on-the-spot ticket fines.205 Both means of prosecution are not without their weaknesses.
A key difficulty with prosecuting street harassment through the courts is the gathering and presenting of evidence, given that an act of street harassment can be so fleeting.206 In the context of visual or audio evidence, one would need to have their phone ready to record the act if any meaningful evidence were to be gathered, like the identity of the offender.207 In the context of testimony, it could be quite difficult for witnesses to recall the event after a delayed period of time between the event and a court hearing. Another difficulty with prosecution through the court is that women may be reluctant to report an act of street harassment (should they want to at all).208 It is known that women experience this reluctance when it comes to reporting existing sexual offences, and that this stems from a culture of prosecutors deciding
203 Albers, above n 145, at 54.
204 Kennedy, above n 40, at 58; Janssens, above n 134, at 132.
205 Lacroix and others, above n 152, at 6.
206 As raised in “Justice Commission of the Chamber Representatives Report”, cited in Janssens, above n 134, at 133.
207 Olney, above n 69, at 162.
208 Bowman, above n 5, at 548.
there is not enough evidence to lead to a prosecution.209 Given the less serious nature of street harassment in comparison with other sexual offending, it is possible that this reluctance could be even greater in the context of reporting street harassment.
Turning to the issues with on-the-spot fines, using a form of prosecution that is typically used to prosecute speeding in a vehicle, or parking wrongly, arguably undermines the seriousness of street harassment’s harm.210 On-the-spot fines are also practically difficult to enforce, as an act of street harassment would likely go without prosecution unless a police officer is nearby to issue the fine.
However, both of these concerns are arguably easy to navigate. Although an on-the-spot fine may be interpreted as a lesser punishment, it nonetheless represents a condemnation of the behaviour coupled with a real consequence.211 Regarding practical difficulties with enforcement, there is typically already an increased police presence in places where street harassment is most likely to occur, like in night-time bar and restaurant areas and public transport.212 The police may not be able to be present for every instance of street harassment, but as Chapter IV established, this does not mean the offence cannot still act as a deterrent by simply existing as an offence.213
While both means of prosecution have their weaknesses, an on-the-spot fine system is arguably the most suitable means of prosecution for acts of street harassment given the symbolic and educative intention behind the offence. As this chapter has determined, an offence for street harassment should require only general intent, given that many men may not even understand that an act of street harassment is harmful. Because the main aim of introducing an offence of street harassment would be to condemn, and not to punish, then an on-the-spot fine that is not recorded on a perpetrator’s criminal record seems a more proportionate response.214 A criminal conviction following a full court process would be too harsh a punishment for an offence that only requires general intent, given the current gap in men’s understanding of the harms of street harassment. In contrast, an on-the-spot fine is enough to denounce the behaviour without
209 At 548.
210 Denise Brunsdon “Legal Solutions to Street Sexual Harassment in the #MeToo Era” (2018) 39 Atlantis 40 at 51.
211 Tuerkheimer, above n 87, at 198.
212 Olney, above n 69, at 162.
213 See Chapter VI, subheading C.
214 Olney, above n 69, at 159.
creating life-long consequences for offenders, which ultimately contributes to positive social change.215
In light of this chapter’s analysis and drawing inspiration from commonly used syntax in New Zealand’s existing criminal offence provisions, this dissertation proposes the following offence of street harassment for New Zealand:
Public Misogynistic Harassment
(1) Every one is liable to an infringement fee not exceeding X216 who engages in public misogynistic harassment.
(2) For the purposes of subsection (1), public misogynistic harassment means any speech or conduct that has a sexual or sexist connotation, in a public place, which either—
(a) is likely to cause fear, alarm, humiliation, degradation, or distress to a member of the public who belongs to the gender group that the speech or conduct is aimed at; or(b) is likely to infringe the dignity of the gender group that the speech or conduct is aimed at.
This proposed offence provision reflects gender-neutral language and captures not only acts of street harassment targeted at a specific person or group, but also any individual who sees or hears the act and is part of the gender group the act involves. To avoid complicating the provision, the requirement of general intent by the perpetrator and the requirement to assess the harm from the perspective of a reasonable person in that person’s particular circumstances, have been left out. In practice, these requirements could form part of the explanatory note to the provision.
Drawing on examples from overseas jurisdictions, this chapter has proposed a draft street harassment offence provision for New Zealand. The purpose of doing so was to illustrate how
215 At 159.
216 The dissertation has not considered quantum of the fine, as that is beyond its scope.
such an offence could be used to effectively address acts of street harassment, and thus generate social change in how New Zealand women are perceived and treated.
CONCLUSION
This dissertation focused on the social issue of street harassment of New Zealand women. It considered the psychological, social, and geographical harm that street harassment can cause, and explained that acts of street harassment work to reinforce ideas of misogyny and gender inequality in society. It was argued that while social activism as the current means for preventing street harassment helps raise awareness of street harassment, acts of street harassment remain prevalent in New Zealand’s public spaces. For this reason, two ways in which the criminal law could be used in regard to combating street harassment were explored: First, the application of existing criminal offence provisions. While existing criminal provisions could be used to prosecute acts of street harassment in theory, a core argument of this dissertation is that to do so would fall short of identifying and condemning the misogyny that underlies acts of street harassment, and would thus be in violation of the fair labelling principle. Accordingly, this dissertation suggested that introducing a new criminal offence provision targeted at street harassment would address this shortcoming of existing law.
Second, the implications of a new offence provision addressing street harassment was considered. While there are arguable concerns with creating a new criminal offence (involving re-criminalisation, free speech, symbolism and enforcement), it is argued that such concerns are outweighed by a new offence’s potential to generate meaningful change in how women are perceived and treated in public spaces. Targeted legal means are needed to condemn the behaviour of male perpetrators and to communicate to female victims that they should not have to put up with or take responsibility for the street harassment that they experience. Further, such means are both consistent with core principles of the criminal law and with evolving social norms. Finally, drawing on valuable debate and critique of overseas jurisdictions that have introduced or considered similar offence provisions, this dissertation proposed a model offence provision for street harassment tailored to the New Zealand context.
At this point in time, the possibility of a introducing a criminal offence provision targeting street harassment remains unexplored by New Zealand’s government. Given the evidence regarding the prevalence and harm of street harassment for women in New Zealand outlined in this dissertation, it is hoped that this will change in the future, particularly with the growing list of overseas jurisdictions engaging with this issue.
BIBLIOGRAPHY
A Cases
Brooker v Police [2007] NZSC 30.
Evans v R [2018] NZHC 850.
R v Aylwin [2007] NZCA 458.
R v Hotene HC Wellington AP 23/00, 9 October 2000. R v Johnston HC Auckland T023336, 5 August 2003. R v Leahy [2019] NZHC 290.
R v N [1987] NZCA 270, [1987] NZLR 268.
R v Robertson DC Hamilton T013258, 24 July 2002.
No. 72/2016 Constitutional Court (GwH).
Collins v Wilcock [1984] 1 WLR 1172, 3 All ER 374 (DC).
Fogden v Wade (1945) NZLR 724 (SC).
B Legislation
Crimes Act 1961.
Crimes (Amendment) Act 2005.
Employment Relations Act 2000. Health and Safety at Work Act 2015. Human Rights Act 1993.
Summary Offences Act 1981.
Anti-Sexism Act 2014.
Penal Code (France)
Hate Crime and Public Order (Scotland) Act 2021.
C Books and chapters in books
Thomas Brudholm “Conceptualizing Hatred Globally: Is Hate Crime a Human Rights Violation?” in Jennifer Schweppe and Mark Austin Walters The Globalisation of Hate: Internationalizing Hate Crime? (Oxford University Press, Oxford, 2016).
Julie Evans and others Equal Subjects, Unequal Rights (Manchester University Press, Manchester, 2003).
Ruth Fry It’s Different for Daughters (New Zealand Council for Educational Research, Wellington, 1985).
B Leach, E Lesiuk, and P Morton” Perceptions of Fear in the Urban Environment” in ME Mazey and DR Lee (eds) Her Space, Her Place: A Geography of Women (Association of American Geographers, Washington D.C, 1983).
Catharine MacKinnon Sexual harassment of working women (Yale University Press, 1979).
Lisa Sugiura The Incel Rebellion: The Rise of the Manosphere and the Virtual War Against Women (Emerald Group Publishing, 2021).
Fiona Vera-Gray Men’s intrusion, women’s embodiment: A critical analysis of street harassment (Routledge, 2016).
Jeremy Waldron The Harm in Hate Speech (Harvard University Press, Massachusetts, 2012)
Harriet Winn “Thursdays in Black: Localised Responses to Rape Culture and Gender Violence in Aotearoa New Zealand” in Caroline Blyth, Emily Colgan and Katie B Edwards (eds) Rape Culture, Gender Violence, & Religion (Springer Nature, Switzerland, 2018) 51.
Irene Zempi and Jo Smith Misogyny as Hate Crime (Routledge, Oxford, 2021).
D Journal articles
Sonja Arndt “Street Harassment: The Need for Criminal Remedies” (2018) 29 Hastings Women's L.J. 81.
Paulette Benton-Greig, Dhakshi Gamage, and Nicola Gavey “Doing and denying sexism: Online responses to a New Zealand feminist campaign against sexist advertising (2018) 18 Feminist Media Studies 349.
Cynthia Bowman “Street Harassment and the Informal Ghettoization of Women” (1993) 106 Harv. L Rev 517.
Denise Brunsdon “Legal Solutions to Street Sexual Harassment in the #MeToo Era” (2018) 39 Atlantis 40.
Michal Buchhandler-Raphael “Overcriminalizing Speech” (2015) 36 Cardozo L Rev 1667.
Anelli Camille Ancheta “No Place for Harassment: Construing Street Harassment as Gender- Based Sexual Violence and Providing Remedies Therefore” (2018) 63 Anteneo L.J. 539.
James Chalmers and Fiona Leverick “Fair Labelling in Criminal Law” (2008) 71 The Modern Law Review 217.
Bunkosal Chhun “Catcalls: Protected Speech or Fights Words?” (2011) 33 T. Jefferson L. Rev 273.
Pamela Coukos “Deconstructing the Debate Over Gender and Hate Crimes Legislation” (1999) 11 Geo J Gender & L 11.
Nadia Dabee “The Health and Safety at Work Act 2015: The Myth of Increased Deterrence” (2016) 47 VUWLR 585.
Deirdre Davis “The Harm That Has No Name: Street Harassment, Embodiment, and African American Women” (1994) 4 UCLA Women's L.J 133.
Bianca Fileborn and F Vera-Gray “’I Want to be Able to Walk the Street Without Fear’: Transforming Justice for Street Harassment” (2017) 25 Fem. Leg. Stud. 204.
Nina Flores “Tweeting the Gendered City: Analysis of Harassment, Reflection on Justice” (2017) 6 Journal of Critical Thought and Praxis 115.
L Hébert “Dignity and Discrimination in Sexual Harassment Law: A French Case Study” (2019) 25 Wash, & Lee, J, Civ, Rts. & Soc. Just. 3.
Jeffrey Howard “Free Speech and Hate Speech” (2019) 22 Annu. Rev. Political Sci. 1.
Michael Kidd “The Use of Strict Liability in the Prosecution of Environmental Crimes” (2002) 15 S. Afr. Crim. Just. 23.
Mordechai Kremnitzer “Constitutional Principles and Criminal Law” (1993) 27 ILR 84.
Lacroix and others “New measures introduced by Law No 2018-702 relating to sexual and gender-based violence” (2020) 11 La Revue de Médecine 100.
Olatokunbo Olukemi Laniya “Street smut: gender, media, and the legal power dynamics of street harassment, or hey sexy and other verbal ejaculations” (2005) 14 Colum, J Gender & L 91.
Laura Logan “Street Harassment: Current and Promising Avenues for Researchers and Activists” (2015) 9 Sociology Compass 196.
Golan Luzon “Criminalising Sexual Harassment” (2017) 81 J. Crim. L 359.
Mari Matsuda “Public Response to Racist Speech: Considering the Victim’s Story” (1989) 2320 Mich. L. Rev. 2321.
Laura Nielsen “Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment” (2000) 34 Law & Soc’y Rev 1055.
Stephan Newman “Finding the Harm in Hate Speech: An Argument Against Censorship” (2017) 50 Canadian Journal of Political Science/Revue 679.
Maeve Olney “Toward a Socially Responsible Application of the Criminal Law to the Problem of Street Harassment” (2015) 22 Wm & Mary J Women & L 129.
John Pryor and others “Gender differences in the interpretation of social-sexual behavior: A cross-cultural perspective on sexual harassment” (1997) 28 Journal of Cross-Cultural Psychology 509.
Amanda Roenius “My name is not beautiful, and no, I do not want to smile: Paving the path for street harassment legislation in Illinois (2016) 65 DePaul L. Rev. 831.
Chris Sibley, Nickola Overall and John Duckitt “When Women Become More Hostilely Sexist toward their Gender: The System-Justifiying Effect of Benevolent Sexism” (2007) 57 Sex Roles 743.
Janet Swim and Laura Hyers ”’Excuse Me – What Did You Just Say?!’: Women’s Public and Private Responses to Sexist Remarks (1999) 35 Journal of Experimental Social Psychology 68.
Simon Thompson “Understanding and regulating hate speech: A symposium on Jeremy Waldron’s The Harm in Hate Speech” (2014) 13 Contemporary Political Theory 88.
Julia Tolmie “Coercive control: To criminalize or not to criminalize?” (2019) 18 CCJ 50.
Deborah Tuerkheimer ”Street Harassment as Sexual Subordination: The Phenomenology of Gender-Specific Harm” (1997) 12 Wis. Women’s L.J. 167.
Jogchum Vrielink and Stefan Sottiaux “Banning Sexism: How Harassment Law May Threaten Freedom of Expression and Undermine Anti-Discrimination Policies” (2008) 9 IJ Discrimination and the Law 263.
E Parliamentary and government materials
(2 March 2004) 615 NZPD.
(12 April 2005) 625 NZPD.
F Reports
DLA Piper Street Harassment: Know Your Rights (September, 2014).
Holly Kearl Unsafe and Harassed in Public Spaces: A National Street Harassment Report
(Stop Street Harassment, 2014).
Helena Kennedy Misogyny: A Human Rights Issue (Working Group on Misogyny and Criminal Justice, March 2022).
Justice Commission (Belgium) Justice Commission of the Chamber Representatives Report (2013-2014) No 53-3297/003 (2014).
Ministry of Justice New Zealand Crime and Safety Survey (2014).
G Dissertations
Eva Albers “#MeToo or #TooMuch? The Belgian anti-sexism law and the fight against sexism” (Masters in Human Rights and Democratisation Thesis, Eötvös Loránd University, 2018).
Charlotte Brown “Legislating against Hate Crime in New Zealand: The Need to Recognise Gender-Based Violence” (2004) 35 VUWLR 591.
Pip Dwyer “’Cancel culture on steroids’ or a Justified Limitation on Freedom of Expression: New Zealand’s Hate Speech Proposals” (LLB (Hons) Dissertation, University of Otago, 2021).
Yaiza Janssens “Sexist street harassment and the law in Belgium: legal assumptions and lived realities” (PhD (Law) Thesis, Ghent University, 2018).
Norma Oshynko “No Safe Place: The Legal Regulation of Street Harassment” (LLM Thesis, University of British Columbia, 2002).
Zoë Prebble “Overlapping criminal offences and gendered violence: What is overlap and when is it part of the problem of overcriminalisation?” (PhD Thesis, University of British Columbia, 2018).
Rochelle Rolston ”Addressing Hate Crime in New Zealand: A Separate Offence?“ (LLB (Hons) Dissertation, Victoria University of Wellington, 2019).
Rachel Tombs ”‘The Most Vital Change’ Feminist Activism and the Criminalisation of Marital Rape in 1980s New Zealand” (MA Thesis, University of Otago, 2021).
H Internet resources
Pilar Álvarez and Reyes Rincón “Spain approves sweeping sexual violence protect bill: ‘We don’t wany any woman to feel alone’” (7 July 2021) El País <www.elpais.com>.Katrine Bussey and Lucinda Cameron “Nicola Sturgeon backs new report recommending proposal to criminalise misogyny” (9 March 2022) Care Appointments
Alan Johnson “Spain bans catcalling women in street but opponents bemoan ‘hatred of beauty and men’” (28 May 2022) Mirror <www.mirror.co.uk>.
Ministry for Women “What’s My Gender Pay Gap? International Comparisons”
Elise Maes “First Criminal Conviction under Belgium’s Anti-Sexism Act” (15 March 2018) Oxford Human Rights Hub <www.ohrh.law.ox.ac.uk>.
Cecile Meierr “’Shocking’ survey results show sexual abuse ‘ubiquitous’ in Kiwi women’s lives” (13 Novemberr 2018) Stuff <www.stuff.co.nz>.
Scott Palmer “New Zealand’s most perverted districts revealed in new stats” (19 October 2019) Newshub <www.newshub.co.nz>.
Joy Reid “Calls for sexual consent education to be compulsory in NZ schools” (7 March 2022) Re: News <www.renews.co.nz>.
Caroline Williams “Indecent exposure offences no laughing matter for victims, expert says (27 January 2020) Stuff <www.stuff.co.nz>.
Kim Willsher “French police issue almost 450 fines under street harassment law” (30 April 2019) The Guardian <www.theguardian.com>.
Women in Urban “Street Harassment” (2018) <www.womeninurban.org.nz>.
Te Ara “Gender Inequalities” Te Ara Encyclopedia of New Zealand <www.teara.govt.nz>.
I Other resources
Tracee Ross “A women’s fury holds lifetimes of wisdom” (TED Talk, 2018).
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/UOtaLawTD/2022/18.html