The following by SMU Law Professor Joanna L. Grossman, the Ellen K. Solender Endowed Chair in Women and the Law, first appeared in the Sept. 6, 2017, edition of Fortune magazine.
September 7, 2017
By Joanna L. Grossman
Marlene Schiappa, France’s secretary for gender equality under new President Emmanuel Macron, has a novel idea: Public spaces should be safer for women and girls. In a recent interview with NPR, she revealed that her first priority is to propose legislation that would criminalize sexual harassment in the streets. According to Schiappa, the streets of Paris can be intimidating, threatening, and dangerous for women, who deal with unwanted comments and obscene gestures, as well as being followed and sometimes even groped. Harassers, she argues, should be fined the French equivalent of thousands of dollars on the spot.
While France is taking steps to prevent street harassment, the U.S. has not yet responded in any systematic way to the problem. Granted, some states have adopted piecemeal laws against harassment, usually in response to an urgent problem. But if America hopes to confront public sexual harassment in any meaningful way, we need to mount a major legislative effort against it.
We can start by looking abroad. France is not alone in taking steps to eliminate street harassment. There is something of an international movement to address the behavior, as international groups like Hollaback! and UN Women have raised awareness of its prevalence and harms. In just the last decade, several cities and countries, including Belgium and Peru, passed laws to criminalize street harassment.
We also need to be honest about how prevalent the problem of public harassment is. The streets in the U.S. are no safer than anywhere else; a 2014 report by an advocacy group called Stop Street Harassment revealed that 65% of women and 25% of men report being victimized by street harassment sometime in their lifetimes. (A viral YouTube video called "10 Hours of Walking in NYC as a Woman" illustrates the problem of street harassment in painful detail, as do social media postings using the hashtags #shoutingback and #stopstreetharassment.) Yet there is no uniform approach to dealing with street harassment. Should there be?
While sexual harassment in the workplace is prohibited by federal anti-discrimination law, the streets are usually left to state control. Indeed, congressional attempts to regulate everything from violence against women to carjacking have been struck down as beyond the federal power. Revolutionizing the streets to make them safe for women is a job for the states.
Few states have enacted legislation designed specifically to address street harassment, although some have other laws on the books that can sometimes be deployed if the harassing conduct happens to fit the crime. For example, California has a law that prohibits certain types of misconduct on public transportation, which makes it illegal to do things such as spitting, willfully disturbing others, or blocking a person’s movement. Oklahoma criminalizes acts that “outrage public decency.” New Jersey makes it a crime to subject another person to “offensively coarse language,” conduct designed to “seriously annoy” the person, or offensive physical contact. Arkansas makes it illegal for you to follow someone in a public place if their intent is to harass, annoy, or alarm you. All states have laws prohibiting assault and battery, which means that most unwanted touching (and certainly groping or other types of sexual assault) is a criminal act, and most have laws prohibiting indecent exposure and false imprisonment.
Taken together, this patchwork of laws and other similar ones would mean that many types of street harassment are unlawful, except perhaps purely verbal, one-off comments to passersby. But in a federalist system, the laws don’t operate together. Each state has its own criminal code, and behavior that occurs in any one of them may or may not be covered by the existing law. A resident of Arkansas may be spit on rather than followed and have no recourse. And a resident of New Jersey may have their movement impeded by a menacing stranger who intimidates but doesn’t touch and be also without a remedy.
If the problem is significant enough, states often respond with a new law that specifically targets the undesirable conduct. This process has been happening all over the country as states deal with problems created or exacerbated by new technology such as sexting, revenge porn, and upskirting. (It often comes as a surprise to victims and police alike that most invasion of privacy laws do not actually prevent anyone from taking a surreptitious video up a woman’s skirt while she is in a public place.)
States have already started the process of making the streets safer for women. But it’s not enough, given the scope of the problem. It’s time for states to get serious and move in lockstep to create meaningful penalties for harassment on the streets.