Creating an Offence of Public Sexual Harassment
Public Sexual Harassment Offences to be created.
Ministers undertook that by Parliament’s 2022 summer recess the government would launch a consultation on whether a specific offence for public sexual harassment (sexual harassment in public spaces) should be created.
In the nationally representative survey of 2,000 people which formed part of the Call for Evidence, 44% of respondents felt that public sexual harassment was happening more often in England and Wales than five years before (including 18% who felt that it was happening much more often) compared to 10% who felt that it was happening less and 35% who felt that there had been no change.
In May 2022 the Office for National Statistics published statistics relating to perceptions of safety and experiences of harassment, based on the Opinions and Lifestyle Survey conducted between 16 February and 13 March 2022. It found that:
• One in two women and one in six men felt unsafe walking alone after dark in a quiet street near their home.
• 45% of women and 18% of men felt unsafe walking alone after dark in a busy public place.
• 82% of women and 42% of men felt unsafe walking alone after dark in a park or other open space.
• One in two women aged between 16 and 34 years experienced one form of harassment in the previous 12 months, with 38% of women aged between 16 and 34 having experienced catcalls, whistles, unwanted sexual comments or jokes, and 25% having felt that they were being followed.
• 54% of people who reported feeling unsafe during the day, and 46% who reported feeling unsafe after dark, had altered their behaviour, as a result, in the previous month.
Existing Law
There are existing criminal offences which can be used in cases of public sexual harassment. An offence of harassment already exists under section 2 of the Protection from Harassment Act 1997 (the 1997 Act). A person who pursues a course of conduct which amounts to harassment of another person, and which they know or ought to know amounts to harassment, can face up to six months in prison or an unlimited fine.
The 1997 Act states that harassing a person includes alarming them or causing them distress. It also states that a course of conduct is either doing something more than once towards one other person or doing something at least once towards more than one other person.
Section 4 of the 1997 Act created an offence of putting someone in fear of violence. It provides that a person whose course of conduct causes another person to fear, on at least two occasions, that violence will be used against them, is guilty of an offence if they know or ought to know that their course of conduct will cause the other person to fear that result on each of those occasions. A person found guilty of this offence can face up to ten years in prison.
This means that, in both cases, a single act directed towards a single person is not covered by the offence. The same applies to the two separate offences of stalking created by the 1997 Act.
The Public Order Act 1986 (the 1986 Act) created three offences which are relevant here and which can be used to tackle single acts:
• Section 4 – fear or provocation of violence – applies when someone uses threatening, abusive or insulting words or behaviour towards another person (or distributes or displays to them a visible representation with the same effect) which is threatening, abusive or insulting, and where:
– the defendant intends the complainant to believe that immediate unlawful violence will be used against them or someone else, or intends that violence by the complainant or someone else be provoked; or
– the complainant is likely to believe that such violence will be used or provoked in this way.
• Section 4A – intentional harassment, alarm or distress – applies when someone uses threatening, abusive or insulting words or behaviour towards another person (or displays to them a visible representation with the same effect), where the defendant’s intention is to cause the complainant harassment, alarm or distress, and that is indeed the effect produced.
A person convicted under section 4 or 4A of the 1986 Act can face up to six months in prison or an unlimited fine.
• Section 5 – harassment, alarm or distress – applies when a person uses threatening or abusive words or behaviour, or disorderly behaviour (or displays a visible representation with the same effect) within the hearing or sight of a person who is likely to be caused harassment, alarm or distress as a result.
A person convicted under section 5 can face a fine of up to £1,000.
The Government considers that there is a range of types of public sexual harassment behaviour which could be caught by these offences. These include persistently staring at someone, cornering or isolating someone, making obscene gestures or remarks at a person, or following them in a vehicle. When the 1986 Act was drawn up these were not the types of behaviour which it was envisaged that it would cover.
But if the terms of an Act encompass particular behaviour, the fact that there were other reasons for creating the Act does not prevent its being used for that behaviour.
The Government considers that it can – depending on the particular circumstances of the case – be used for these practices, and the CPS is clear that the 1986 Act can be used to prosecute such behaviour.
Other criminal offences can – again, depending on the particular circumstances of the case – be used to tackle other types of public sexual harassment behaviour:
• Section 3 of the Sexual Offences Act 2003 – sexual assault – covers situations where a person intentionally touches another person in a sexual way, where the complainant does not consent to being touched and the defendant does not reasonably believe that the complainant consents. A person convicted of sexual assault can be sentenced to a maximum of ten years in prison. This offence can be used in relation to types of public sexual harassment where physical contact is involved, such as ‘groping’.
• Section 66 of the Sexual Offences Act 2003 – exposure – covers situations where a person intentionally exposes their genitals, with the intention that someone will see them and be caused alarm or distress. A person convicted of this can be sentenced to a maximum of two years in prison.
• Section 39 of the Criminal Justice Act 1988, covering the common law offence of battery, can also be used in relation to behaviour involving some physical contact. The physical contact need not be sexual.
So, is a new offence necessary?
The Government’s view is therefore that behaviour amounting to public sexual harassment is already covered by existing criminal offences (subject to the individual circumstances of the case).
The Government would not seek to create a new offence if it would create overlap with new offences (because, for example, this would create uncertainty and additional work for police and prosecutors). Based on its own analysis that public sexual harassment behaviour is already covered by existing offences, the government could not therefore propose creating a wholly new offence.
However, there is an option of adding to an existing offence, rather than creating a new one. It would be possible to provide that if a person commits an existing offence and does so on the basis of the complainant’s sex, then they could receive a higher sentence than if they had committed the offence without that motivation. This would avoid the problems which arise with overlapping offences.
The Government has not, however, made a decision on whether there should be such a new offence. Even though a legislative solution may be possible, it does not necessarily mean that it is the right policy course. It may be that existing criminal offences (including ensuring that the police are fully confident in using them) and non-legislative measures are a better way to tackle public sexual harassment.
In this consultation, the government are therefore consulting on the following issues:
• The principle of whether there should be a new law specifically covering public sexual harassment;
• If there were to be such a new law, whether one of the two options we set out would be the correct model for it; and
• Whether there are additional non-legislative actions which the Government should take (either in addition to or instead of a new offence).
Option 1 would create a new offence which would apply when a person commits an offence under section 4A of the Public Order Act 1986, and does so because of the complainant’s sex. Their having committed the offence because of the complainant’s sex would mean that the defendant could receive a longer sentence than if that had not been their motivation.
Option 2 takes Option 1 as its starting point, but adds one key additional element. It includes a list of types of threatening, abusive, insulting or disorderly behaviour which might in particular circumstances be carried out because of a person’s sex.
The list is illustrative rather than exhaustive, and types of behaviour not included in it could be covered by the offence. It is therefore not legally essential to include it. But it may help to clarify the purpose of the offence to people who might report it and to parties within the criminal justice system.
The list comprises:
• following someone;
• making an obscene or aggressive comment towards someone;
• making an obscene or offensive gesture towards someone;
• obstructing a person who is making a journey (sometimes known as “cornering” them); or
• driving or riding a vehicle slowly near to a person who is making a journey.
A vehicle is defined as a mechanically propelled vehicle (for example, a car), a pedal cycle (whether electrically assisted or not), or a form of transport which is not mechanically propelled (for example, a skateboard).
The consultation closed on 1st September 2022, and we will continue to monitor developments to ensure our team is ready to give up-to-date advice to our clients.
How We Can Help
If you have any questions relating to sexual harassment offences or any other types of sexual offence, please contact us on 0161 477 1121 or email us.
