Wednesday, January 16, 2008

When does catcalling become criminal harassment?

Imagine you're walking down the street with your five year-old child. Some random guy starts following you, wolf-whistling at you, and repeatedly telling you - in a completely uninvited and unwanted fashion - that you've got a nice ass, or nice tits or whatever. He only stops when you get in your car and speed away from the scene.

Surely, most women would say that such behaviour constitutes "harassement" in the colloquial sense of the word. But would most women say feel "threatened" by such catcalls?

(For harassment to constitute criminal harassment in the eyes of our criminal law, it has to be objectively "threatening," that is, that the accused's conduct must "[rise] to the level of a 'tool of intimidation designed to instill a sense of fear'".)

Now, what if the catcaller was a police officer in full uniform?

In a recent case, the Yukon Territory Court of Appeal acquitted a police officer of harassment charges, on the ground that his actions did not objectively constitute a "threatening" conduct.

Some commentators have rightly pointed out that the Court failed to take into account that the power dynamic that necessarily kicks into gear when a person in authority is involved:

I would have liked the Court to say something more about the fact that the accusedmade these comments while in uniform.
To my mind this elevates the conduct, viewed objectively, beyond the merely inappropriate, and potentially makes it threatening and intimidating. This guy wasn’t a construction worker.

Any thoughts?


Update (as a - lenghty - response to Lilith's comment):

The problem is that under our criminal law, we're stuck with "objective" notions of what is threatening when it comes to such offences as criminal harassment and uttering threats. The rationale for this is that the law seeks to punish the offender who had the intention to cause the victim to feel threatened or in danger of death or bodily harm. The courts determine if this intention is present by asking themselves whether the accused's words or actions were designed to instill fear, from his point of view, and not from that of the victim.

This is why we're forced to trust our judges with taking into account the perspective of the women who are most often the victims of such crimes. Unfortunately, this is not always the case. For instance, in 1991, in the McCraw case, the Supreme Court of Canada had to explain why threatening a woman of rape, even when the guys says he finds her pretty or that he's infatuated with her, necessarily constitutes a threat of bodily harm...

The problem is that judges are most often men, who interpret objective legal norm from the vantage of a reasonable man, who unlike a reasonable woman, is usually not afraid to go out alone at night, and usually capable of fending off potential assailants...

I agree that is not the best way to interpret laws that, in practice, seek to punish acts of violence against women. In fact, many feminist legal scholars have demanded that courts turn to a standard of a "reasonable woman" in such cases.

However, I'm not too sure it's a good idea, because I fear it would only allow male judges to introduce sexist notions on how a "reasonable female" should behave in such and such situation into our jurisprudence.

The best solution, I think, would be to appoint more women to the Bench!

A side note: In my opinion, the offenders who harass women or who threaten them, on the other hand, usually understand too well what women find threatening. That's precisely why they harass or threaten them in the first place.

That's also something - unfortunately - they understand almost instinctively, something they understand better than the judges who are called to rule their case.

1 comment:

lilith attack said...

When I experience cat calling and whistle harassment my heart tends to speed up, I feel nervous and angry and scared at the same time. I tend to get tongue tied, shaky fisted, and embarrassed. How is that not threatening!? :( Police, especially, should be held accountable for behaviour like this because of the power dynamic. In these cases, perhaps "threatening" could be a subjective experience? How does a court full of men decide if a man's harassment of a woman is of a threatening nature?