Legal Solutions to Street Sexual Harassment in the #MeToo Era All Rights Reserved © Mount Saint Vincent University, 2018 Ce document est protégé par la loi sur le droit d’auteur. L’utilisation des services d’Érudit (y compris la reproduction) est assujettie à sa politique d’utilisation que vous pouvez consulter en ligne. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ Cet article est diffusé et préservé par Érudit. Érudit est un consortium interuniversitaire sans but lucratif composé de l’Université de Montréal, l’Université Laval et l’Université du Québec à Montréal. Il a pour mission la promotion et la valorisation de la recherche. https://www.erudit.org/fr/ Document généré le 5 avr. 2021 20:56 Atlantis Critical Studies in Gender, Culture & Social Justice Études critiques sur le genre, la culture, et la justice Legal Solutions to Street Sexual Harassment in the #MeToo Era Denise Brunsdon Volume 39, numéro 2, 2018 URI : https://id.erudit.org/iderudit/1064071ar DOI : https://doi.org/10.7202/1064071ar Aller au sommaire du numéro Éditeur(s) Mount Saint Vincent University ISSN 1715-0698 (numérique) Découvrir la revue Citer cet article Brunsdon, D. (2018). Legal Solutions to Street Sexual Harassment in the #MeToo Era. Atlantis, 39(2), 40–56. https://doi.org/10.7202/1064071ar Résumé de l'article Street sexual harassment is the unwelcome commoditization of women’s bodies by fellow citizen-strangers. This harm is under-recognized by traditional, Anglocentric common law. This paper begins by discussing the #MeToo wave, in particular by suggesting that it is a re-branded version of the feminist movement that is helpful but not sufficient to address street sexual harassment. Second, the paper outlines how street sexual harassment harms women. Third, some contextual analysis of why governments and legal systems have been slow to address street sexual harassment are provided. Fourth, the paper assesses the various areas of the law that may be used to curb street sexual harassment. Finally, this paper canvasses the ways other governments have taken action against street sexual harassment. Ultimately, this paper argues that the lack of protection of the basic civil right to use the public sphere free of sexual harassment is a failure of the Canadian justice system, and a criminal response remains essential. Other methods of legal regulation are inadequate without the social condemnation that criminal law carries. https://apropos.erudit.org/fr/usagers/politique-dutilisation/ https://www.erudit.org/fr/ https://www.erudit.org/fr/ https://www.erudit.org/fr/revues/atlantis/ https://id.erudit.org/iderudit/1064071ar https://doi.org/10.7202/1064071ar https://www.erudit.org/fr/revues/atlantis/2018-v39-n2-atlantis04853/ https://www.erudit.org/fr/revues/atlantis/ Atlantis Journal Issue 39.2 /2018 40 Research Legal Solutions to Street Sexual Harassment in the #MeToo Era Denise Brunsdon, JD, MBA, is an associate at Ben- nett Jones LLP (Calgary) and is the recipient of the Queen’s Golden Jubilee Medal, in particular for her gender-based community volunteer work. She has published broadly on issues of gender and techno- logy, and gender and politics. Abstract: Street sexual harassment is the unwelcome commoditization ofwomen’s bodies by fellow citizen- strangers. This harm is under-recognized by tradi- tional, Anglocentric common law. This paper begins by discussing the #MeToo wave, in particular by sug- gesting that it is a re-branded version of the feminist movement that is helpful but not sufficient to address street sexual harassment. Second, the paper outlines how street sexual harassment harms women. Third, some contextual analysis of why governments and legal systems have been slow to address street sexual harassment are provided. Fourth, the paper assesses the various areas of the law that may be used to curb street sexual harassment. Finally, this paper canvasses the ways other governments have taken action against street sexual harassment. Ultimately, this paper argues that the lack of protection of the basic civil right to use the public sphere free of sexual harassment is a failure of the Canadian justice system, and a criminal response remains essential. Other methods of legal regulation are inadequate without the social condem- nation that criminal law carries. Keywords: street sexual harassment; #MeToo; street harassment; catcalling; law; sexism; feminism; Canada; United States; criminal; critical legal studies; legislation Introduction Street sexual harassment is the unwelcome commodit- ization of women’s bodies by fellow citizen-strangers. Street sexual harassment can be defined as unwanted comments, gestures, and actions made in a public place related to the innocent party’s perceived sex, gender, gender expression, or sexual orientation (Stop Street Harassment 2015). This includes actions such as whistling, leering, sexist slurs, persistent requests for a name or number, following, flashing, and public masturbation (Stop Street Harassment 2015). Histor- ically, this behaviour has been described using the un- gendered and non-descript term of “catcalling.” The insults—or “compliments” as they may be mischarac- terized by perpetrators—can be frequent but unpre- dictable. This consistent but randomized violence creates sizeable harm by making public space uncom- fortable, even unsafe, for women. Dread of this im- pending violation of dignity is a state of oppression for many women. This harm is under-recognized by traditional, Anglo- centric common law. The #MeToo wave ofthe femin- ist movement has brought a renewed interest in, and public discourse about, the oppression that mainly women face, usually at the hands ofmen. Personal ex- periences—so prominent in the #MeToo wave—are often absent in legal discourse and, to some extent, academic research generally. The feminist movement, in contrast, relies on the power of storytelling and consciousness-raising to counteract the dominant male viewpoint. This paper explores the ways that the #MeToo wave of feminism has raised awareness of sexual harassment, how this might bring attention to street sexual harassment in Canada, and the potential legal remedies available. Atlantis Journal Issue 39.2 /2018 41 This paper begins by discussing the #MeToo wave, in particular by suggesting that it is a re-branded version ofthe feminist movement that is helpful but not suf- ficient to address street sexual harassment. Second, the paper outlines how street sexual harassment harms women. Third, some contextual analysis of why governments and legal systems have been slow to address street sexual harassment is provided. Fourth, the paper assesses the various areas ofthe law that may be used to curb street sexual harassment. Finally, this paper canvasses the ways other govern- ments have taken action against street sexual harass- ment. Ultimately, this paper argues that the lack ofprotec- tion of the basic civil right to use the public sphere free of sexual harassment is a failure of the Canadian justice system, and a criminal response remains es- sential. Other methods of legal regulation are inad- equate without the social condemnation that criminal law carries. The #MeToo Context I contend that the true value of#MeToo is not in its expression as a new “movement.” Rather, #MeToo fits within the greater feminist movement, and is not a separate movement unto itself. This article there- fore labels the movement as a “wave” within the fem- inist movement, an approach endorsed by others (Parry 2018). The #MeToo wave of feminism is a modern and di- gitally-flourishing take on a traditional pillar of the women’s movement: consciousness-raising. Women sharing their oft-similar stories of gender-based viol- ence creates a unifying experience out of what can seem to be an individual or even invisible problem. The #MeToo wave has created a more open social climate for discussing gender-based violence, includ- ing street sexual harassment. Many #MeToo stories seem to include—and re- sponses to these stories gain oxygen from—the abuse of power. This is evident in the #MeToo focus on Weinstein-style harassment, i.e. abuse within a rela- tionship ofunequal power. However, this focus poses a challenge to addressing issues ofstreet sexual harass- ment, or sexual assault more generally, where the issue is not about an individual asserting and abusing their power over a more vulnerable colleague or date. Acts of street sexual harassment are more randomized and anonymous. Perhaps because a single incident of street sexual harassment is less destructive or violent than a rape, it is wrongly deemed innocuous. The more universal an experience in men’s lives, the more often society rationalizes street sexual harassment as a harmless experience (e.g., “boys will be boys,” “locker room talk,” and various other anachronisms for broad-based and socially acceptable gender violence). This ignores how a hundred incidents of harassment invade the psychological safety and self-worth ofwo- men. The genesis of#MeToo mainly regarded the struggles of privileged, white, cis, wealthy, and often celebrit- ized women, the root theme of this wave of the fem- inist movement. The lessons, however, can and should be broader. Intersectional analysis acknowledges that multiple spheres of structural disadvantage exist but cannot be understood by simply adding layers ofdis- advantage. Race, gender expression, and all the factors that signal non-conformity to the patriarchy’s ideal- ized woman can affect the way she is harassed and the harms she experiences. Notions of attractiveness are socialized, including social preference by race, eco- nomic status, gender expression, and physical ability. The harm from street sexual harassment varies based on social preference and status. Street sexual harass- ment is not reserved for women who are deemed so- cially desirable, and can also be used as a tool to police and demean women perceived as undesirable or nonconformist. Thus, while the #MeToo wave of feminism has provided an important shift toward personal and widely shared stories, an intersectional feminist lens is also necessary to address street sexual harassment. Atlantis Journal Issue 39.2 /2018 42 The Harm Many women can still recall their first personal ex- perience with street sexual harassment because it was traumatizing (Trudy 2013; Vinciguerra 1994). Norma Anne Oshynko wrote in her Master of Law thesis that “street harassment can best be understood as an integral part of a system of sexual terrorism which allows men to dominate and control women” (Oshynko 2002). Street sexual harassment tells women that our pres- ence in the public sphere is open for comment and criticism by strangers. The attacks remind women that our bodies are commodities to be freely con- sumed and commented upon by fellow citizens. Sev- eral scholars have argued that street sexual harassment—and the lack of legal recourse available to survivors of it—is an ongoing denial to grant wo- men their basic human rights. Gender scholar Robert Allen wrote: Whether in the workplace or on the street, the purpose of sexual harassment is to reduce wo- men to objects sexually vulnerable to men, and to reestablish the traditional power relation- ship between men and women. Indeed, wo- men’s sexual vulnerability to men is a key locus ofmale power, something men learn to expect. (1995, 134) As Cynthia Grant Bowman wrote in her Harvard Law Review article, street harassment is the denial ofa ba- sic civil liberty: The most fundamental definitions of liberty include the right of an individual to go where she chooses in spaces that are public. Indeed, liberty of this sort is essential to equal particip- ation in the affairs of the polis. The security to move about in public, what Blackstone called “the power of locomotion,” is one of the most basic civil rights; it is essential to the rights to assemble and petition for redress of griev- ances—the primary prerequisites to participa- tion in public affairs and admission to the public realm. Thus, when the law fails to pro- tect women from street harassment, it deprives them of one of the basic goods for which gov- ernment was ordained, leaving them in an Hobbesian wilderness men do not share. (1993, 520-21) Image 1: A sample ofonline posts sharing thoughts about and personal experiences ofstreet sexual harassment. (Clockwise from top left: Collazo 2013; unknown; Laxer 2013; Alston 2012; Moore 2015; Boosil 2015; CompleteStreetsCat 2015) Atlantis Journal Issue 39.2 /2018 43 More specifically, the many harms of street sexual harassment include feeling powerless, dehumanized, and isolated; fearing for one’s safety; and the practical effects ofchanging one’s daily habits, including going outside less and at more restricted times (Davis 2017; Fox 2016). No recitation of the harm flowing from street sexual harassment would be complete without noting the role that sexual harassment plays in con- doning gender-based violence. Widespread objecti- fication of women’s bodies is linked to violence against women (American Psychological Association 2007; Oddone-Paolucci, Genuis and Violato 2000). Recognizing these harms is important because dam- ages are a key element under the law, but also because such recognition helps to stamp out the myth that some women enjoy street sexual harassment. As with other forms of sexual violence, myths exist to rein- force the acceptability of the violating conduct. That “catcalls” are inoffensive and even flattering is one such myth. New York Post writer Doree Lewak con- troversially wrote of street harassment as a “drive-by dose ofconfidence [that] is the 10-second antidote to all that negative feedback in the real world” (2014). Although some women may claim that they enjoy the experience, this does not address the lack of consent to such harassment by all women. The Statistics The nature of street sexual harassment makes it diffi- cult to track; it is constant yet unpredictable. Often, the woman is alone and the only witnesses are friends of the offender. Often, the harassment comes from a moving vehicle. Hollaback! and Cornell University began a large-scale research survey on street harassment in 2014. There were over 16,600 respondents overall, making this survey the largest analysis ofstreet harassment to date. The study found that, globally, the majority of wo- men experience their first incident of street harass- ment during puberty (Livingston 2014). In Canada, 620 women participated in the survey: 73% reported their first experience with street harass- ment between the ages of10 and 17, and 79% ofwo- men reported being followed by a man or group of men that made them feel unsafe during the past year (Livingston 2014). Over 60% of women reported changing their daily lives to avoid harassment, for ex- ample by taking different modes oftransportation or a different route home, not going out at night, not so- cializing, feeling distracted at school and work, and changing the time of leaving an event or location (Livingston 2014). A 2013 Hollaback! Ottawa com- munity consultation on street sexual harassment found that 97% of respondents had experienced har- assment on the street in the past year (Hollaback! Ot- tawa 2013). Image 2: Tom Fonder 2014 Atlantis Journal Issue 39.2 /2018 44 Relevant Academic Theories A primary reason for the lack ofgovernment priority given to street sexual harassment is its disproportion- ate effect on women. As briefly discussed below, dominance feminism best explains the lived experi- ences of women subjected to street sexual harass- ment. Critical legal studies (CLS) also helps explain why women are refused full and equal access to legal protections and why the law systematically under- serves less powerful communities. Dominance feminism emphasizes the difference in power between men and women and how men’s in- terests dominate the agenda in a patriarchal society (Chamallas 2012). Women’s lack of power means a lack of voice in state priorities and governance (MacKinnon 1983). Street sexual harassment does not often attack male dignity. The status quo allows men to engage in street sexual harassment at their whim. Thus, the current system of what is deemed acceptable street sexual harassment shoulders women with the majority ofthe harm. Dominance feminism explains why street sexual harassment is not men- tioned in the House of Commons or newspapers (Baumgardner and Richards 2000). Such awareness would require the legislature and media to step out ofthe dominant male perspective. Critical legal studies has value in dissecting discrim- ination within the law. CLS deconstructs the way that power embeds and recreates itself within the legal system, never devolving to the vulnerable. Crit- ical legal theory posits that: Legal thought originates, of course, within the consciousness of the dominant class because it is in this class’ interest to bring it into being, but it is accepted and interiorized by everyone because of the traumatic absence of connec- tedness that would otherwise erupt into awareness. (Gabel 1992) Feminist legal theorists would point out that the dominant class is overwhelmingly male. Relevant Canadian Law Sexual harassment has been recognized as an offence under the anti-sex discrimination provisions in the human rights codes present across Canada’s provinces (Janzen v. Platy 1989). Freedom from sexual harass- ment is thus a human right in part because sexual harassment is an affront to dignity, personal integrity, autonomy, and personhood (Allen 1995; British Columbia Law Institute 2001). ChiefJustice Dickson for the Supreme Court stated in 1989 that sexual harassment is “an abuse ofboth eco- nomic and social power” (Janzen v. Platy 1989). Courts have recognized that sexual harassment in- cludes leering (Webb v. Cyprus Pizza 1985), sexually suggestive gestures (Sharp v. Seasons Restaurant Ontario 1987), and derogatory or degrading remarks. These legal cases involved workplace sexual harass- ment, however, not street sexual harassment. In considering street sexual harassment, one funda- mental question is whether the legal response should be a matter ofprivate or public law, as both could play a role. Broadly speaking, public law is an umbrella term to describe the areas oflaw that affect society as a whole, and private law regards disputes between indi- viduals and commercial entities. After reviewing ele- ments of private law, this paper argues that, ultimately, the social condemnation aspect of public law, in particular, the Criminal Code established by the federal government, makes it a more useful avenue to begin addressing street sexual harassment. The Criminal Code is taught to law students as the set of rules the government uses to indicate what behaviour the state condemns and will punish through a reduc- tion in civil liberties. i. Private Law Feminist scholar Catharine MacKinnon (1987) wrote: “Sexual harassment, the event, is not new to women. It is the law ofinjuries that it is new to” (3). In a 1992 Law Society ofUpper Canada (LSUC) conference pa- per, lawyers stated a similar idea: “There is no inher- Atlantis Journal Issue 39.2 /2018 45 ent barrier preventing resourceful counsel from con- ceiving a cause of action arising from circumstances wherein a client has been the victim ofsexual harass- ment” (LSUC 1992, D-2). This progressive stance would prove naive. Sexual harassment by way of sex discrimination has been a proven tort (Lajoie v. Kelly 1997), but courts have been reticent to recognize it in other instances (Seneca College v. Bhadauria 1981). The Alberta Court of Queen’s Bench said that whether the court recognized a tort of sexual harassment “is still an open question” (Campbell- Fowler v. Royal Trust Co. 1993). Gillian Demeyere provides a helpful summary of sexual harassment torts to date: While courts have uniformly allowed actions for breach of contract based on alleged sexual harassment to proceed, the treatment of ac- tions in tort has been less consistent. Some courts have declined to exercise their jurisdic- tion over claims asserting independently re- cognized torts where the conduct alleged might be also described as sexual harass- ment.... There can be little dispute that the wrong of sexual harassment can include the violation of interests long protected by the common law. Indeed, the pleadings approach concedes as much, by finding actions that plead independ- ently recognized causes of action to be within the jurisdiction ofcommon law courts. But by holding actions that plead merely “sexual har- assment” to be beyond the jurisdiction of the common law, the pleadings approach impli- citly declares that the wrongfulness of sexual harassment consists wholly in the fact that it is a form of sex discrimination. So understood, the common law cannot come to recognize a new tort of sexual harassment, because Bhadauria tells us that sex discrimination falls within the exclusive jurisdiction of human rights commissions. (2005, 647, 663) The courts have recognized a tort of sexual harass- ment by other names, recognizing that sexually har- assing conduct is tortious. But court recognition of the explicit tort remains weak. The established torts of battery, sexual assault, nuisance, and emotional distress all hold elements relevant to street sexual har- assment. As mentioned earlier in this article, sexual harassment results in a loss of dignity, autonomy, personhood, and personal integrity (BC Law Institute 2001, at 11). Additional harms flow from any ofbat- tery, assault, nuisance, or emotional distress that is sexual or gender based “including difficulties relating to depression, anxiety, mood disorders, disturbances of sleep, eating, sexuality, personality, interpersonal relationships, child development, and learning abilit- ies” (British Columbia Law Institute 2001, 11). Tort law and its awards have recognized such damages. Sexual assault is an accepted sexual violence tort, of- ten seen in cases of childhood sexual abuse. Even with near-universal societal rejection of rape, Cana- dian courts have not awarded civil remedies for sexual assault consistently. The harm of sexual assault “has not yet been fully recognized by the civil justice sys- tem” (British Columbia Law Institute 2001). Craig Brown and Melanie Randall (2004) argue for an ex- pansive, public insurance-like system: This leads us to examine alternative ways that the financial resources available to automobile accident victims might also be available to be- nefit victims of domestic and sexual violence. This involves the reform of the criminal injur- ies compensation system and a clear articula- tion of a rationale for compensation. Given that this would involve significant public ex- penditure, and therefore political opposition, we also consider models for a private insurance response. Our conclusion is that the only vi- able solution to the gross under-compensation of those injured by acts ofdomestic and sexual violence in Canada, is a substantially enhanced public compensation scheme. (316) If sexual assault survivors do not feel adequately compensated by the civil justice system, there is little hope for victims of street sexual harassment. One problem is that there is rarely any physical evidence. Atlantis Journal Issue 39.2 /2018 46 Further, unlike a rape at a house party, where wit- nesses may have a personal connection with the com- plainant, there is not necessarily a personal connection with witnesses on a public street corner. Legal remedies in civil suits are aimed to put the Plaintiff in the situation they would have been in but for the wrong done to them. Courts have struggled to adequately award damages to sexual assault survivors seeking to be put in the situation they would have been in prior to the acute attack; street sexual harass- ment survivors have even less reason for hope. Com- pensable losses due to street sexual harassment too often result from cumulative experiences and are, therefore, too multi-causational to satisfy the tort framework. DB et al. v. Johnson (2012) is one Canadian civil litig- ation case related to street sexual harassment that proved a success. Various plaintiffs filed a claim against their neighbour for damages arising from as- sault, battery, and intentional infliction of mental suffering. The behaviour included making lewd sexu- al suggestions and comments, verbal sexual harass- ment, inappropriate touching (such as grabbing breasts and buttocks, sometimes in public). The Court commented that “[t]he whistling, catcalls and insults by themselves, however objectionable, cannot support a claim for damages.” Nonetheless, the Court decided that “non-consensual touching aside, each of the female plaintiffs, satisfied me that they had suffered humiliation and intimidation and an appre- hension of sexual assault.” The Court assessed dam- ages at between $350 and $5,500 per plaintiff. Unhelpfully, this victory was only possible because there was an identifiable Defendant making continu- ous and traceable assaults. It is also worth noting that the Defendant did not defend in the action. A British Columbia report on civil remedies in cases of sexual assault recommends extending the bases for liability to include negligence, vicarious liability, and breach ofnon-delegable duty (British Columbia Law Institute 2001). An expanded conception of sexual assault and its causes increases the chances of remed- ies for survivors. It also increases potential street sexual harassment recovery when combined with growing class action capacity in Canada. The basic purpose ofclass action law is to change the costs and benefits in any legal situation so plaintiffs can band together to distribute the costs of litigation across a number ofPlaintiffs who each have a right to a remedy that would not individually be sizeable enough to warrant a law suit. Companies that might normally breach their duties because the harm to an individual customer would not merit an expensive ac- tion become justly exposed to their aggregate liability (Canadian Bar Association: BC Branch 2017). Street sexual harassment class action suits could use traditional negligence and vicarious liability law to build class actions against the actors whose inertia fa- cilitates street sexual harassment. Examples might in- clude outdoor construction companies that refuse to act against staff or contractors who sexually harass passersby, municipalities whose inaccurate transit schedules leave women vulnerable for long periods of time, or bars that, instead of calling the police, eject harassing patrons who then move to verbally harass others in the public sphere. Overall, private tort law has struggled to account for women. Margot Schlanger (2002) has explored the reasonable person standard in torts and its bias toward what men deem reasonable. Martha Chamallas’ re- search has determined that “the negligent infliction of emotional harm and negligent interference with rela- tionships are low in the hierarchy of compensable harms, in part because of their cognitive link to wo- men and women’s injuries” (2005, 4). Remedies for gender-based violence are no different. In “Gendered Harms and the Law ofTort: Remedying (Sexual) Harassment,” Joanne Conaghan identified structural concerns within tort law: It may be precisely because the law recognizes the “wrong” inherent in defamation that it is socially perceived; it may be because the law denies a remedy for many of the acts which constitute sexual harassment that it is too often Atlantis Journal Issue 39.2 /2018 47 socially denied. In other words harm is socially constructed and legally constituted; unless a harm is recognized as such by society and by law, it is not experienced as such. That is why for years many women have put up with sexual harassment without complaint: the social and legal failure to recognize the injury entailed has led women simply to endure it, repressing their feelings of violation, incipient outrage, the sense that a wrong had been perpetrated [foot- notes removed]. (1996, 429) Even established gender-based harms struggle within status quo tort law; new concepts such as street sexual harassment face many challenges. Though Conaghan (1996) and Brown and Randall (2004) argue for a continued use of tort law as part of the feminist pro- ject, this article argues it cannot be the only avenue for upheaval, particularly where street sexual harass- ment is concerned. The threshold for intention in any torts—albeit on the balance of probabilities—may be too onerous in most cases ofstreet sexual harassment. ii. Public Law The criminal law also has a poor record addressing gender-based violence. Sexual assault rates are disturb- ingly high and convictions disturbingly low; this has been driven by many factors related to systemic miso- gyny in the policing and judicial establishments (Ran- dall 2004). The outcome for more fleeting forms of gender violence, such as street sexual harassment, re- mains an open question. The following portion ofthe article will address specific sections ofCanada’s Crim- inal Code. There is no Code provision squarely focused on street sexual harassment. Section 265. Assault The s.265 sexual assault provision of the Criminal Image 3: This chart provides a short form ofthe key Criminal Code provisions that could be argued to be applicable to street sexual harassment. Atlantis Journal Issue 39.2 /2018 48 Code does not work well for street sexual harassment because street sexual harassment involves words and not physical touching or force, as described under s.265.1(a). Under s.265.1(b), any act or gesture that is reasonably perceived as a subjective threat could be considered assault. So, although the collection of street sexual harassment experiences in a woman’s life may be threatening on the whole, each incident will likely seem too benign to reach the s.265 threshold. Highly menacing sexual harassment—even on the street—could reach this threshold, however. Section 264. Harassment The s.264 criminal harassment provision is often called the anti-stalking provision. However, much re- search exists on the section's deep inadequacy in ad- dressing stalking (for example, see MacFarlane 1997). Section 264 sets too high a threshold for use against street sexual harassment. The Code requires “re- peated” acts. Although women’s lived experiences of street sexual harassment are repeated, the perpetrator is usually different in each instance. Because the Code historically requires that a single harasser attack the same women repeatedly, street sexual harassers who randomize their attacks on different women re- ceive impunity under this current provision. Section 173. Indecency The public indecency sections of the Code hold po- tential to curb street sexual harassment. Street sexual harassment is instinctively—as the harm discussed above provides—an indecent act. Unfortunately, des- pite a rich body ofstatutory interpretation, indecency has never been thoroughly interpreted through a feminist lens.1 Anti-pornography issues involving de- cency have focused on overall threats to women, but within the community standards test. The com- munity standards test is a judicial endorsement of tyranny of the majority. This is demonstrated by the Court’s recognition that public opinion surveys may be appropriate to measure “a general average ofcom- munity thinking and feeling”(R v. Labaye 2005). The court has focused on the “harm” issue within the community standards test, arguing that social norms are not determinative2 but this half-measure is insuf- ficient. Lise Gotell cites Jeffrey Weeks in her deconstruction of the Butler decision. In R v. Butler, Butler, a Man- itoba video storeowner, was convicted under the Criminal Code obscenity law for distributing porno- graphic videos. Butler claimed the Code violated his constitutional right to freedom of expression. The Court upheld the obscenity law as a justifiable restric- tion on freedom of expression. Weeks (and then Go- tell) wrote: “Moral panics are flurries of social anxiety, usually focusing on a condition or person, or a group of persons, who have become defined as a threat to accepted social values and assumptions” (Weeks 1986, 95). Gotell (1997) notes that the Butler factum sub- missions embody the core problem with the com- munity standards test: The role of law as guardian of the moral uni- verse is clearly defended and applauded in each of these factums. Implicit here is the assump- tion that the depiction of sexual practices that lie outside of majoritarian norms constitutes a threat to the community itself. (53) Although some feminists interpreted Butler as a vic- tory, the victory is steeped in a problematic legal framework. Queer theorists such as Brenda Cossman (2004) contend that Butler did not apply a feminist lens to community standards. As Gotell (1997) states, “Butler merely provide[d] a new feminist language to legitimize and modernize what is really an old conser- vative, moral agenda” (at 99). Community standards tests such as those discussed in Butler—even those that purport to focus on harm over norms—are antithetical to feminism. Community standards embody normative social codes of conduct that have oppressed women throughout Anglocentric history. The weakness ofthe community standards test is directly linked to indecency, a concept that has for years been used to regulate women’s behaviour through government-sponsored regulation of sexual and artistic preferences. The decency provisions are also steeped in gender roles: the male-dominated le- gislature and courts are here to protect women and children from exposure to culture that is unseemly and “slutty.” More modern interpretations of inde- Atlantis Journal Issue 39.2 /2018 49 cency based on community standards and harm have facially attempted to move away from embodying majority preferences, but feminists have effectively exposed such court claims (Cossman 1997). I con- tend that such decency provisions are the sword of moral panic and a key tool in regulating women’s sexual behaviour. To call on legal definitions of de- cency and community standards to protect women against street sexual harassment therefore seems counterproductive. The Criminal Code, as the book of rules to indicate social condemnation of beha- viours, should focus on the harassers, not on the so- called decency ofthe harassed. I suggest that the courts and the legislature should avoid the community standard in reviewing the de- cency of street sexual harassment according to s.173(1) and move toward a more feminist focus on the agency ofeach individual woman. Leading schol- ars in the US have similarly argued for a sexual har- assment doctrine that employs a reasonable person standard that accounts for complainants' intersec- tional identities (Onwuachi-Willig 2018). The relevant “flashing” provision, under section 1.75(b) of the Criminal Code, will not be considered under the scope of this paper because “flashing” is an obvious and recognized form ofextreme street sexual harassment. The “flashing” sections state that anyone who (a) causes a public disturbance by shouting, us- ing insulting language, using obscene language, or molesting another is guilty ofdisorderly conduct, and any person who (c) loiters in public and obstructs persons who are in the same place is committing a crime. Either (a) or (c) could be used to criminalize street sexual harassment. Even if the harassment is not as obviously acute or offensive as flashing, an action that disturbs a woman in public should be considered a disturbance if she feels the language directed to her was insulting, obscene, or bothersome (the traditional definition of molestation) sufficient to satisfy ss.173- 175. Finally, any street sexual harassment that results in a woman feeling uncomfortable while walking her preferred public route should be considered obstruc- tion. To make a woman uncomfortable in public is a core kind of obstruction. Obstructing women’s free participation in the public sphere is central to the negative impact of street sexual harassment. In this way, ss.173-175 are the most fitting response to street sexual harassment. To properly capture and condemn street sexual har- assment, the public indecency provisions provided in ss. 173-175 should be made more generic to encom- pass verbal indecency, or the list of indecent acts should be expanded beyond such physical acts as flashing to explicitly include indecent verbal assaults. Section 180. Nuisance Section 180 is the last potential option to criminalize street sexual harassment. Satisfying subsection (a) re- quires viewing street sexual harassment as endangering women’s health and comfort. It also requires viewing the (predominantly female) victims as members ofthe public. This should be straightforward. However, the legal community has a history of accepting the male viewpoint as the norm and actively asserting the male right, under and in the law, not to know about the ex- periences ofwomen. Feldthusen (1990) references the danger present when a dominant group assumes, uses, or imposes their narrative as the neutral viewpoint: “[M]most male law professors still refuse to consider, let alone engage with, the issues. Instead they exercise the male ‘right not to know’: to ignore, deny, neuter, trivialize, and redefine gender issues in legal educa- tion” (70-71). Envisioning a New Code Provision As is evident from the above discussion, there is no Code provision squarely focused on street sexual har- assment. None of the existing laws are easily adapt- able. Overall, the indecency and nuisance portions of the Code seem prima facie more useful than the assault or harassment portions. In two recent cases, the Canadian Courts have ad- Atlantis Journal Issue 39.2 /2018 50 dressed possible use ofthe Code provisions to penalize street sexual harassment. In R v. Kohl, the complain- ant was jogging when the accused, a stranger to her, jumped out from behind bushes and blocked her way in a threatening and frightening manner; the accused did not touch her or speak to her. The complainant ran away and the accused chased her down the street. When the complainant ran to a house to seek help, the accused stood at the end of the driveway and stared at her. The complainant stated that she was very frightened. In this case, the accused was con- victed of criminal harassment under s.264(2)(d) and was sentenced to three years' imprisonment. He ap- pealed the conviction and the sentence. The appeal of the conviction was dismissed, but the sentence appeal was allowed to reduce the sentence to two years, with conditions. This is an extreme case of street sexual harassment that met the threshold for criminal har- assment as envisioned by the Code. In R v. Burns, the perpetrator whistled at the com- plainant and said "nice butt" or "nice ass." After the complainant ran to get away, the Appellant called out, "Are those pants painted on?" The Appellant was acquitted of the conviction for harassment, with the Court noting: While the [perpetrator’s] conduct was clearly inappropriate and unwanted, we do not see the incident as amounting to threatening conduct within the meaning of those words in s.264(2)(d). Although the complainant justifi- ably felt upset and scared by the appellant's conduct, viewed objectively, we do not see it as rising to the level ofa "tool of intimidation de- signed to instill a sense offear. (R v. Burns) This Court decided that this very common example of street sexual harassment did not warrant sanction under the Code. Despite inadequacies, criminal law stands as our soci- ety's main mechanism to condemn actions. I there- fore contend that the Canadian legislature should enact new criminal laws against street sexual harass- ment. Street sexual harassment provisions may not be easy to prosecute, but neither are many provisions of the Criminal Code regarding sexual violence. Con- demnation under the Code is an important start to es- tablishing the basic type of conduct that will not be tolerated. A new provision eschews the need to re-en- vision older provisions alongside unbiased statutory interpretation. The struggle to recognize sexual harassment is ampli- fied by the law’s chosen human rights approach, which requires the right be tied to a status; for example, that ofan employee. This caveat hinders the full protection of dignity that women deserve in all roles and situ- ations. The advantage of a criminal law approach to street sexual harassment is that it codifies the breach of attacks on dignity across the citizen experience. i. Looking Internationally Many jurisdictions around the world have taken ac- tion to curb sexual harassment and provide helpful lessons or ideas that Canada should consider. For ex- ample, in 2010, UN Women launched targeted pro- grams to increase women’s public safety in Ecuador, Egypt, India, Papua New Guinea, and Rwanda (United Nations 2010). In 2014, the Nepal police implemented a focused campaign to curb sexual har- assment on public buses. Police register complaints and file reports regarding the places and circumstances of harassment (Stop Street Harassment 2014). In the District ofColumbia, it is now illegal to engage in ab- usive language or conduct that disturbs a person's path through a public space (Badger 2014). In March 2015, Peru passed an anti-sexual harassment law that states that any act or threat affecting the freedom and dignity of movement and the right to physical and moral integrity of vulnerable peoples is harassment and punishable (Steinkellner 2015). Belgium and Portugal have made it illegal to sexually harass or in- timidate a person and violation of the law is punish- able by a fine ofup to one year in prison; Portugal has made it three years if the victim of harassment is younger than 14 years (King 2016). In November of 2017, Belgium handed its first court judgment related to street harassment. The state fined a man nearly €3000 for harassing a female police officer (Flanders Today 2018). Atlantis Journal Issue 39.2 /2018 51 Many jurisdictions have taken the route of ticketing for street sexual harassment. In partial response to the #MeToo movement, France has passed legislation which will target several forms of sexual harassment, including street harassment. The new law will ban “insulting, intimidating, threatening and following women in public spaces,” any ofwhich can lead to a fine of up to €750. France’s junior minister for gender equality, Marlène Schiappa, stated, “Harass- ment in the street has previously not been punished. From now on, it will . . . forbid insulting, intimidat- ing, threatening and following women in public spaces" (Politico 2017; Harper’s 2018.) There are some significant drawbacks, however, to a ticket-based regime, including the potential for bias in implementation and the potential for dispropor- tionately targeting marginalized groups (White 2018). Further, a ticketing system may undermine any message the state intends to make about the seri- ousness of street sexual harassment. Compared to the more common breaches that result in tickets—speed- ing, parking incorrectly, riding a bicycle without a helmet—tickets send no strong message about soci- ety’s unwillingness to accept a particular behaviour. ii. Recent Canadian Developments In March 2017, the Standing Committee on the Status of Women conducted a study on violence against young women and girls in Canada and presented their findings and recommendations to par- liament (House of Commons 2017). The committee provided 45 recommendations to help prevent gender- based violence. A few recommendations recognized the lack ofresearch on street harassment and called for the Government of Canada to fund initiatives, in- cluding new research and analysis of existing research that addresses intersectional violence, street harass- ment, and sexual harassment in public spaces and its effects on women (House ofCommons 2017). The Government ofCanada proposed Bill C-309, An Act to Establish Gender Equality Week, to recognize certain hardships faced by women. The Act proclaims the last week of September each year in Canada as “Gender Equality Week.” The Bill received Royal As- Image 4. This graphic shows some ofthe activist work being done to bring street sexual harassment to the fore. (Hui 2015; Brown 2014; Killermann 2014; Magwood 2014; Romano 2014; White 2014; Jurecko 2016; Crosby 2017; Gillis 2018). Atlantis Journal Issue 39.2 /2018 52 sent on June 21, 2018, and September 2018 saw the first Gender Equality Week. The notable feature about this Act is that 2016 debates on the issue re- flect recognition of “[c]atcalling, harassment on the street, slut shaming, [and] victim blaming” as com- monplace, and that “[w]e need to raise the bar on those” (House ofCommons Debates 2016). Yet, not- ably, the Act itselfdoes not explicitly recognize street harassment. Kiera Liblik has noted that Canada has ratified the Convention on the Elimination ofAll Forms ofDis- crimination Against Women (CEDAW), a UN docu- ment focused on eliminating sex-based discrimination, and has suggested that failing to criminalize street harassment would be against the in- terests ofCEDAW(Liblik 2015). Conclusions Many women’s organizations, including Women in Cities International and Hollaback!, are helping to share personal stories and raise consciousness about street sexual harassment. Street sexual harassment is an affront to human dignity and the right to parti- cipate freely in the public sphere, a basic civil liberty. Street sexual harassment—and the lack of legal re- sponse to it—is therefore an ongoing denial of basic rights. The shift in awareness and recognition of workplace sexual harassment provides some hope for similar change regarding street sexual harassment. However, judicial systems still struggle to bring justice to women survivors of workplace harassment. No current Canadian law may be sufficient to address street sexual harassment, due to historical bias in construction and application of the law. New crimin- al laws are therefore required. Other jurisdictions are enacting stronger anti-street harassment provisions than Canada. It is time for our legislators to lead on women’s right to dignity in public. Endnotes 1. The Butler decision is one of the better-known in- decency decisions. This article will refer to Butler be- cause it engages core questions around indecency. Little Sisters Book and Art Emporium v. Canada (Min- ister of Justice) [2000] 2 SCR 1120 is an equally rel- evant and concerning decision. 2. Craig (2009) states: “Chief Justice McLachlin de- termined in Labaye that the type ofharm identified in Butler (that being ‘conduct which society formally re- cognizes as incompatible with its proper functioning’) must be assessed not by community standards of tol- erance, but rather by those norms which our society has formally recognized in the constitution or similar fundamental laws: ‘The inquiry is not based on indi- vidual notions ofharm, nor on the teachings ofa par- ticular ideology, but on what society, through its fundamental laws, has recognized as essential. Views about the harm that the sexual conduct at issue may produce, however widely held, do not suffice to ground a conviction. This is not to say that social values no longer have a role to play.’” [footnotes removed] Acknowledgements I wish to thank Alexandra Heine, Mikayla Hill, Sydney Olsen, Victoria Rudolf, and, in particular, Gitanjali Keshava and Darci Stranger for their research assistance. 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