UK Government consultation on public sexual harassment

The UK Government is currently running a consultation on measures to address public sexual harassment. We encourage UK folk to respond to the consultation. It closes one minute before midnight on 1 September 2022.

The consultation has a number of questions based on a short paper. You can answer these questions in an online survey or email them to the Home Office. Our responses to the questions are set out below. You are welcome to copy them or use them as inspiration for your own responses to the consultation.

Please note that the question numbers below are based on those in the consultation paper and, confusingly, they do not correspond to the question numbers in the survey.

1. How widespread a problem do you think that public sexual harassment is in this country?

Public sexual harassment is a huge problem in the UK. It limits women’s and children’s lives and makes it impossible for women to engage in public life on an equal footing with men. As it happens in full view of the state and its public bodies, the state and public bodies have a binding obligation under international treaties, including CEDAW, to take measures to address it.

It has become so normalised and widespread that people frequently don’t recognise it for what it is and the (mostly) male perpetrators usually don’t consciously intend to cause victims alarm, distress and fear, for example. They simply think treating women and girls in that way is what you do.

We therefore believe that any new offence should NOT make the INTENTION to cause alarm, distress, etc a part of the definition and that believing the behaviour to be REASONABLE should NOT be a valid defence. There are other offences – for example, dangerous driving – that do not require intention to be proved, only that the defendant performed the proscribed act.

Some examples to illustrate what we mean:

1. When waiting for a train late on a summer evening, I noticed a group of young men standing near the station exit. Every time a young woman went past them, they’d make sexist comments and noises (e.g. “look at her”, phwoar, pelvic thrusts, and similar).

For the young women who were making their way home alone, it must have been terrifying – because they had no way of knowing whether the young men would follow them and possibly rape or assault them.

In fact, while I was watching at least, the young men showed no signs of wanting to follow. I got the impression that they simply believed that making those kind of comments, noises and gestures was completely normal and possibly even complimentary to the young women and were oblivious to the incredibly hostile and demeaning environment that they were creating for young women and girls.

2. One summer when my daughter was nine and very clearly a child (puberty was still some years off), we were walking through a seaside town to the beach. My daughter was wearing ordinary children’s shorts and a t-shirt. A man walking towards us looked at her in a sexualised manner and as he passed, he made a sexually suggestive gesture and sucking noises.

Of course, I was extremely alarmed and distressed, but I doubt that was the man’s conscious intention. He was simply responding as the culture had primed him to – a culture awash with violent and misogynistic pornography and where even respected stores present clothes for prepubescent girls in a sexualised way.

3. Watching online pornography has become so normalised that men now commonly watch it in the workplace, on public transport, and in other public places.

Mainstream online pornography typically depicts violence and aggression, sometimes extreme, directed at women and girls. Suzzan Blac who spent several years researching free-to-view porn on Pornhub said, “These were not sex videos. They were crime-scene videos.”

Pornography as crime scene videos: Suzzan Blac discusses her Pornhub research

Even when the pornography is not explicitly violent, it invariably presents women and girls as sexual objects to be abused and denigrated and it normalises and eroticises the kind of behaviour that is rampant as sexual harassment in public places and sexual misconduct in private.

For all these reasons, the viewing of pornography in a public place creates a hostile and demeaning environment for women and girls. However, it is so normalised that men are likely to think that viewing it in public is entirely reasonable – which would provide a defence under Sections 4A and 5 of the Public Order Act 1986.

We therefore believe that these sections of the Public Order Act 1986 need to be amended so that the defence of believing the behaviour to be reasonable cannot be used for watching porn in a public place or displaying pornified and sexualised imagery that portrays women or children as sexualised objects, subhuman, etc. and for other behaviour that constitutes sex-based harassment.

2. Do you think that there should be a specific criminal offence of public sexual harassment?

3. If you do think that there should be a specific offence of public sexual harassment, would this be because (tick all that apply):

It would criminalise behaviour which is not already criminal.
It would raise awareness that these behaviours are illegal.
It would prevent people engaging in these behaviours.
It would encourage more people to report to the police.
It would make the law on public sexual harassment clearer to police and others.

4. If you think that a new law would criminalise behaviours which are not already criminal, please specify which behaviours.

While there may previously have been legislation in force that could have been used to criminalise public sexual harassment, it has hardly – if ever – been used for this purpose in practice and there has been very low awareness of the possibility of using the law for this purpose among both the police and the general public.

The advantage of making a specific law would be that it would raise everyone’s awareness and, provided there is a good public education about the law, it would make men less likely to behave in this way. One key purpose of the criminal law is to set clear boundaries about what behaviour is acceptable and what is not. Creating a specific law about sex-based public harassment would clarify what has until now been a grey area.

5. If you do not think that there should be a specific offence of public sexual harassment, would this be because (tick all that apply):

None

Questions 6 – 13 would apply if there were to be a new criminal offence of public sexual harassment. We welcome responses both from those who do support and from those who do not support a new offence of public sexual harassment.

6. Would Option 1 be a viable model?

Comment: While we are generally supportive of this approach, we have some concerns. These relate to:

(a) The offence being defined as INTENTIONAL and that the defendant’s belief that the behaviour is REASONABLE constitutes a valid defence. We are strongly opposed to this because we are worried that it will make the offence hard to prove and will therefore reduce its effectiveness.

(b) The interaction of the new offence with the kerb crawling offence in Section 51A of the Sexual Offences Act 2003.

We have set out more detail about our concerns in our response to Question 13.

7. Would Option 2 be a viable model?

Comment: While we are generally supportive of this approach and prefer it to Option 1, we have the same concerns as we set out for Option 1:

(a) The offence being defined as INTENTIONAL and the defendant’s belief that the behaviour is REASONABLE would constitute a valid defence. We are strongly opposed to this because we are worried that it will make the offence hard to prove and will therefore reduce its effectiveness.

(b) The interaction with the kerb crawling offence in Section 51A of the Sexual Offences Act 2003.

We have set out more detail about our concerns in our response to Question 13.

8. If you consider that both Option 1 and Option 2 would be viable models, do you think either option would be more effective? Please explain why.

Yes (Option 2 would be more effective)

9. Do you think there is a better way to construct a public sexual harassment offence than either Option 1 or Option 2?

Yes (please provide details of what such an offence could look like)

Comment: The new offence should not require intentionality and the belief that the behaviour is reasonable should not be a valid defence. All that should be required is that the proscribed behaviour has taken place, in a similar way to dangerous and careless driving offences.

Sex-based harassment has become so normalised that we do not believe that men necessarily have the intention to cause distress and alarm etc by this behaviour and simply consider it to be normal and reasonable.

10. Noting that the list of example behaviours in Option 2 is not exhaustive, do you think that it captures the most common types of public sexual harassment behaviour?

If No, which additional ones would you include?

Viewing or displaying pornographic material (whether printed or online videos or similar) in public. Explicitly defining this as a form of sexual harassment that is against the law would remove all ambiguity around this behaviour.

Pornographic material should be defined as sexually explicit material that eroticises dominance and subordination, depicts women or children as sexual objects, or that depicts violent or aggressive sexual behaviour towards women or children.

11. Do you consider that any of the example behaviours in Option 2 should be excluded? If so, please state why.

None of them should be excluded.

12. Do you consider that the maximum sentence included is the correct one?

13. Do you have any other comments on Options 1 and 2?

1. We are concerned about the requirement that the behaviour is “intentional” and that the defendant believing his conduct to be reasonable is a valid defence.

As we set out in answer to Question 1, sexual harassment has become so normalised that we do not believe that men engaging in this behaviour necessarily have the INTENTION of harassing someone or causing alarm or distress and that they often think their behaviour is REASONABLE.

We are concerned that the need to prove intention and the potential defence of reasonableness will make it difficult to gain convictions and will therefore make the new offence ineffective. We strongly recommend that the new offences do not include these provisions but instead simply proscribe behaviour, which if proven results in a conviction – in a similar manner to the dangerous and careless driving legislation.

2. We are concerned about how this offence will interact with the kerb crawling legislation in Section 51A of the Sexual Offences Act 2003. Kerb crawling is a major and serious form of sex-based public harassment that can make neighbourhoods an extremely hostile environment for women and children, as evidence from the former “decriminalised zone” in Holbeck, Leeds makes absolutely clear:

Who says decriminalised red-light districts are safer for women?

And yet the police and CPS guidelines state that “Enforcement […] is not encouraged as this is likely to result in displacement and put those selling sex at greater risk.” This suggests (against all evidence) that prostitution can be safe for women provided there is adequate street lighting and that the women and children living in the neighbourhood can be written off as collateral damage.

Moreover, the maximum sentence (“a fine not exceeding level 3 on the standard scale”) is considerably lower than the maximum proposed sentence (2 years imprisonment) for the new offence.

We do not believe that this discrepancy in sentencing can be justified and we would urge the kerb crawling offence to also be amended to bring sentencing into line with the proposed new offence, to add explanation that kerb crawling is a form of sex-based harassment, and to update the CPS and police guidelines to remove the advice that kerb crawling offences should not be enforced – and to invest in poverty-reducing measures, and services and alternatives for women involved in prostitution so that they have real routes out of prostitution and genuine alternatives for survival.

14. Do you think that introducing a new offence of public sexual harassment would have implications for the resources of the police and the criminal justice system?

Yes (please provide further details)

Obviously for this new offence to lead to a change in men’s behaviour and the overall culture, it must be enforced sufficiently well that men will perceive a real risk of being caught under it. This will obviously involve police and criminal justice system (CJS) time and resources. This is why the offence must be well drafted so that it does not take a huge amount of effort to prove beyond reasonable doubt.

This is one reason we are concerned about the definition of the offence as INTENTIONAL and the absurd defence that he considered it REASONABLE. We believe that these will make the offense difficult to prove beyond reasonable doubt in court, thereby increasing the amount of police and CJS resources needed for conviction.

One aspect to public sexual harassment becoming such a huge problem is that the police and CJS have not enforced the existing legislation and have generally considered it as something inevitable that was beyond their remit. This has been a huge mistake and has led to an environment of virtual impunity for perpetrators of not only public sexual harassment but other serious sexual and violent crime against women and children.

We would therefore argue that tackling public sexual harassment would be an excellent use of police and CJS time and resources and if the new offence is well drafted and enforced, it should lead to a reduction in other violent and sexual crime against women and children.

15. Do you think that the non-legislative actions which the Government and other statutory authorities have been taking to tackle public sexual harassment – as set out in section 2 of this document – are sufficient? We welcome answers both from those who think that there should be a new criminal offence of public sexual harassment and from those who do not.

16. If you think that those actions are not sufficient, which additional non-legislative actions do you think that the Government and other statutory authorities should take?

These measures are welcome, but we do not believe that alone they will make a significant impact on the deeply entrenched problem of public sexual harassment.

We need effective measures to address the enduring inequality between the sexes, including but not limited to: tackling the pay gap, measures to tackle women’s and mothers’ poverty, age restrictions on online porn, improved training and apprenticeship options for women, improvements in how the family courts treat women, ongoing and effective public information campaigns about sexual harassment and violence against women and children, better education in schools for boys about how sexist behaviour and misconduct is not cool and ultimately makes their lives emptier, etc.

17. In particular, are there any other non-legislative actions which the Government should take to tackle public sexual harassment which takes place in the night-time economy?

Yes (please specify which ones)

Comment: We have identified four major underlying causes of sexist behaviour and misconduct, including public sexual harassment: (a) the proliferation and increasing misogynistic violence of online porn and its seepage into mainstream culture; (b) the trivialisation, normalisation and increase in size of the sexual exploitation industry in all its forms, including prostitution, lap dancing and strip clubs, OnlyFans, webcamming and similar, escorting and “sugar dating”, and pornography; (c) increasing economic inequality between women and men; and (d) almost total impunity for male perpetrators.

These underlying causes are interlinked and reinforce each other. For example, the increasing impoverishment of women has led to an increase in the numbers of women turning to prostitution and online porn sites such as OnlyFans – often as a last resort against destitution. This has contributed to the increase in the scale of the sexual exploitation industries and has reinforced the objectification of women and girls. This in turn has led to more sexist behaviour and sexual misconduct, including public sexual harassment, and to policy makers, who are not immune to these cultural forces, overlooking the distinct needs of women and girls – in a terrifying mutually reinforcing nihilistic cultural vortex.

If the government is serious about tackling public sexual harassment and other forms of violence against women and girls, it must therefore take measures to address the sexual exploitation industry and women’s poverty. As a start we recommend the following in addition to the new offence of public sexual harassment:

1. Urgent introduction of age restrictions on online porn.

2. The introduction of new legislation to ban all lap dancing and strip clubs.

3. The introduction of the Nordic Model approach to prostitution law and policy: Repeal all criminal offences that target those selling sex; Make buying or attempting to buy sex acts a criminal offence; strengthen laws against pimping, brothel keeping and sex trafficking; invest in real alternatives for women and the provision of high quality services for those involved in prostitution and other aspects of the sexual exploitation industries to include trauma informed support and genuine routes out; and finally effective measures to reduce women’s poverty and inequality.

These measures must be combined with high quality ongoing public information campaigns, education in schools, and training for the police and other front-line staff.

We are available for follow-up questions and advice.