The #MeToo and Time’s Up movements have propelled gender-based discrimination into the spotlight, particularly in relation to sexual misconduct.
Perhaps in response to this, the Women and Equalities Committee have recently launched two inquiries into sexual harassment of women and girls, each focussing on a different setting where harassment can occur: the workplace and in public places.
Sexual harassment violates a person’s dignity – a fundamental human rights value – and can amount to an infringement of specific human rights, which the government has a duty to prevent and protect against through legislation and other means. Sexual harassment captures a wide range of behaviours, and this is reflected in legislation.
Harassment as Sexual Assault
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Unwanted touching or groping is a form of sexual harassment. This type of harassment can also amount to sexual assault, which is a criminal offence. Under the Sexual Offences Act 2003, sexual assault takes place where:
- A person (A) intentionally touches another person (B),
- The touching is sexual,
- B does not consent to the touching, and
- A does not reasonably believe that B consents.
Sexual assault is common. A YouGov poll found that, out of a sample of 851 British women, 35% had experienced unwanted physical contact of a sexual nature when in public. An Office for National Statistics report found there were approximately 646,000 victims of sexual assault last year. This may be merely the tip of the iceberg, as many instances of sexual assault go unreported.
Sexual assault has been recognised as a violation of the right to private life, which encompasses a person’s physical and psychological integrity (Article 8 of the Human Rights Convention). Serious sexual assault can also infringe the right to be free from inhumane and degrading treatment (Article 3).
Harassment Doesn’t Have to be Physical
Sexual harassment is not always physical. Under the Protection from Harassment Act 1997, harassment is broadly defined as conduct which alarms or causes someone distress. To be found liable under the Act, the behaviour of the defendant must be a “course of conduct”: two or more instances of harassment. This can include, but is not limited to, stalking. As stated by the late Lord Toulson in the case of Smith v R. [2012]:
Essentially, it involves persistent conduct of a seriously oppressive nature, either physically or mentally, targeted at an individual and resulting in fear or distress.
Like sexual assault, this form of harassment is a crime, but the harassment does not have to be sexual in nature. It is well-established that this form of harassment amounts to an infringement of the right to privacy.
Harassment as a Form of Discrimination
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The Equality Act 2010 prohibits sexual harassment, defining it as situations where:
- A person (A) engages in unwanted conduct of a sexual nature with another person (B), and
- The conduct has the purpose or effect of:
- Violating B’s dignity, or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The offending conduct can comprise a wide range of behaviours, including sexual comments or jokes, propositions and sexual advances, and suggestive looks, staring or leering. Unlike offences under the 1997 Act, it can be a one-off occurrence. It can also include criminal behaviours, such as the kinds of harassment outlined above.
The Equality Act recognises sexual harassment as a form of discrimination – and protection against discrimination is a fundamental human right (Article 14). It does not apply generally to all situations, rather it applies to employers (in the workplace), to providers of public functions (education and transport providers, government departments) and service providers.
Street Harassment as Sexual Harassment
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Street harassment – or ‘cat-calling’ – refers to unwanted (usually sexual) comments, gestures and actions directed at a stranger in a public place, usually on the basis of their gender. Most women will have experienced this at least once. Ninety percent of women in Britain experience street harassment for the first time between the ages of 11 and 17.
Street harassment can cause anxiety, uneasiness and distress. Since it disproportionately affects women, and is inextricably linked to their gender, it arguably amounts to a form of discrimination.
There is a harassment offence in the Public Order Act 1986, however it is generally not viewed as encompassing street harassment; it is limited to threatening, abusive or disorderly behaviour, which street harassment may not always amount to. Moreover, it does not recognise the gendered dimension of street harassment.
Two police forces – Nottinghamshire and North Yorkshire – have attempted to address this lacuna, by adding misogyny to their list of hate crimes. Other countries, such as Portugal, Belgium and Peru have made street harassment illegal. Legislating against street harassment throws up many of the human rights issues that arise with hate speech; namely, balancing the right to freedom of expression (Article 10) against other rights.
What Next?
What is perhaps most shocking about the above forms of sexual harassment is not just their prevalence, but how ‘normalised’ they are.
In addition to the mass media attention, the two new inquiries into sexual harassment offer hope for change and suggest that this behaviour will not be tolerated any longer. Both inquiries are accepting submissions: until the 5 March (public places) and 13 March (workplace), so get involved and have your say!
