Criminal Law to the Rescue? ‘Wolf-Whistling’ as Hate Crime

By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).*

Eugène Delacroix’s Liberty Leading the People

Eugène Delacroix’s Liberty Leading the People

On July 13, 2016 Nottinghamshire police became the first force in the UK to recognise misogyny as a hate crime.  Hate crime is defined as ‘any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice based on a personal characteristic’. In practical terms, this means that in Nottinghamshire police can record reported incidents such as wolf whistling, verbal abuse, taking photographs without consent, and using mobile phones to send unwanted messages with an additional ‘flag’ or qualifier on their incident log as hate crime.  It appears that the move is largely symbolic, as gender animus is not a relevant aggravating factor for the purposes of sentencing under relevant UK ‘hate crime’ legislation,[1] and does not create any new criminal offences.  However, the initiative has been supported by the force working in partnership with the Nottingham Women’s Centre and has involved the specialised training of officers to better identify and respond to the public harassment of women by men.

The announcement last week of the initiative was met with the predictable level of teeth gnashing and cries of ‘political correctness gone mad’ characteristic of any policy announcement addressed to countering gender inequality.  While the move may be largely bureaucratic, it does present an opportunity to look again at the spectre of criminalisation in our time and consider a related question: What is the role of the criminal law in regulating gender (in)equality, and what should it be?

It is characteristic of mainstream liberal discussion to consider the creeping cloak of criminalisation in isolation from the broader socio-political and historical context in which it is conceived and implemented.  Informed by the work of critical race theorists, in particular, there is a long tradition of scepticism in queer feminist scholarship of the use of criminal justice measures to ‘fix’ oppressive social structures.  This is because the history of the use of these measures against our communities and others we are allied to in many cases give us reason to be sceptical.

As the global war on terror creeps into our consciousness and communities in ever more horrifying ways, policing in general is constantly evolving, often in ways that involve little oversight or public consultation.  In the UK, the Government’s anti-terror Prevent strategy compulsorily co-opts academics and teachers in the service of surveilling and reporting on ‘suspect communities’.  On July 5, 2016 Rights Watch UK released a comprehensive analysis of Prevent that, amongst other conclusions, found that implementation of the policy had led to ‘violations of the right to education, the right to freedom of expression, the right to freedom of religion, the right to privacy, the right to freedom from discrimination, and the fundamental principle that actions taken in relation to children must treat the child’s best interests as a primary consideration’.  The state of emergency declared in France in wake of the November 13, 2015 terrorist attacks was extended for a further three months on July 14, 2016 after the horror in Nice.  A state of emergency allows the police to exercise sweeping powers absent the constraints of constitutional protections usually in force, like due process.  In the United States the slaughter on July 7, 2016 of five police officers in Dallas was ended by the controversial use of a bomb robot to kill the offender.  All of these changes are particularly pertinent at a time when the ubiquity of violence by the state against racialised bodies has come to the attention of white media more than ever through the increased visibility via social media of police summary killings of (mostly) young black men.  Through the activism of black communities in movements like #BlackLivesMatter, it has become harder for the ruling elite to ignore the way that the criminal justice system serves some while harming others.

It is of concern to those upon whom the burden of state violence most often falls when domestic policing appears increasingly militarised in an environment in which democratic oversight is often largely absent.

I highlight these points because in any consideration of criminalisation by the state in the name of ‘protecting’ or ‘empowering’ women, a queer feminist perspective demands we consider what else is at stake.  Is it internally consistent to celebrate the engagement of the carceral arm of the state to deal with the street harassment of women when that same state machinery is responsible for often unregulated and highly discriminatory violence?

The experience of being harassed by men in the street is an ubiquitous part of the experience of being a woman in public.  It is a serious and debilitating threat to our freedom, equality and dignity.  It affects how we move about and use public spaces.  It affects how we experience and perform our bodies.  But that is not the end of the story.  In the UK, one woman has been killed every three days by a man so far in 2016.  The vast majority of those men will have been known to the women who they killed.  Women’s groups have fought desperately to resist the decimation of domestic violence services, which have seen cuts of up to 80% in state funding since 2011.  Women have borne since 2008 the heaviest burden of austerity policies that have slashed social security, public sector provision and legal aid.  We should be careful not to overstate the importance of the police taking street harassment against us seriously as a ‘win’ for gender equality when women continue to suffer disproportionately the effects of poverty, precarity and violence, often as a direct result of action taken (or not taken) by the state.

So what should we do about the harassment of women on the street by men motivated by misogynistic animus?  A queer feminist analysis would insist that we need a thoroughgoing and honest discussion of the limits of the liberal criminal justice system and that we need to resist simplistic analyses that divorce the law and its implementation from its historical and socio-political import.  Many of us with little to no experience of the carceral state machinery face an extraordinary time in which the nature of our way of life appears subject to irrevocable change at the hand of forces we can’t seem to grasp.  Women’s bodies are often at the vanguard of the symbolic fight in which nostalgia for empire becomes the ideological outlet for a new proto-nationalism.  I was reminded amongst the horror of last week of Delacroix’s iconic Liberty Leading the People, in which a bare-breasted Liberty with French flag in one hand, and rifle in the other leads the Paris uprising of July 1830.  Liberty is at once represented in the image as both fearless warrior and corporeal guardian of the nation.  Similarly, to reassert its dominion over ‘its’ women’s bodies by criminalising their public harassment can be seen as a way for the patriarchal state to covertly rebuke and repulse those (often) racialised ‘others’ whose presence in our communities threaten the purity of its human capital.

The queer feminist project in law demands an intersectional and historically situated analysis of the state and its various arms; it forces us to consider what the limits of the criminal law might be, and how we want to engage with the state.  Street harassment of women is a serious problem, but if we are to focus solely on carceral responses to it in lieu of any meaningful state intervention into the structures that support and enable it, it’s not going away anytime soon.

[1] See Crime and Disorder Act 1998 ss. 28-32 and Criminal Justice Act 2003 ss. 145-146.

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This essay was first published by Critical Legal Thinking on 20 July, 2016.

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