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?

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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.

The Village where Men are Forbidden

The video below is an excerpt of Umoja, le village interdit aux hommes. This film is a document about a village in Kenya founded by women who have been repudiated by their husbands or cast out of their community because theyr have been raped.

Feminine instincts and personal safety

Yesterday, I was in a café with a friend, standing in line. After she got her order, I moved away from the line and a male staff member bump into me from behind.

Instead of just apologizing, he grabbed me from behind, firmly holding my waist with his arm. He maintained his hold of me for two or three seconds, and said something like "Shall we dance?"

As the place was noisy, I had not seen or heard him coming, and was completely caught by surprise. He was holding me and speaking to me from behind, and I couldn't even see his face.

When he let go of me, I caught up with my friend. I told her what had just happened. I was angry, but more than anything else, I was really upset, as the incident has triggered old fears and feelings of inadequacy.

I wish I had had the instinct to defend myself, to push him away, to yell at him, to claw his eyes out. But I did not do any of those things. I didn't even say anything, not even a hushed complain.

Of course, I fell incredibly outraged and angry at this asshole. But I can't help to feel angrier at myself, for being so inadequate and useless in defending myself. I also feel sad that I can't do what I preach, what I have learned and what I believe is the right thing to do.

I couldn't apply the basic rules I've learned: attack his eyes, pull his hair, kick his groin... It didn't even cross my mind. I was paralyzed by surprise and fear.

It wasn't an attack per se, although this guy didn't have the right to touch me - let alone seize me - like that without my consent. (Assault simpliciter, anyone?) Maybe the guy acted in good faith, or without thinking - which, while it clears him of being a predator, doesn't change anything to his being a complete idiot. It happened in a public place, and I guess that another person might have reacted differently than I did.

My point is just that, had this been a full-fledged attack, I'm not sure I would have been able to adequately defend myself.