By Martha Whitehead, 15th March 2023
What is harassment?
Harassment is defined as ‘aggressive pressure or intimidation, to subject persistently to worrying behaviour, behaviour intended to trouble or annoy’. Harassing behaviour can often be linked to stalking.
The law in England and Wales regarding harassment is covered by three statues; –
- Protection from Harassment Act 1997
- Crime and Disorder Act 1998
- Domestic Violence, Crime and Victims Act 2004
Protection from Harassment Act 1997
This statue creates the following offences; –
- Section 2- Harassment
- Section 2A Stalking
- Section 4 Fear of violence
- Section 4A Stalking involving fear of violence
Crime and Disorder Act 1998
Section 32(1) creates offences of harassment and stalking that are racially or religiously aggravated.
Domestic Violence, Crime and Victims Act 2004
Section 12 of the Domestic Violence, Crime and Victims Act 2004, makes restraining orders available for all offences and provides the court with the power to make a restraining order even when a person has been acquitted, where it is considered necessary to do so to protect an individual from future stalking or harassment by the defendant
Section 2- Harassment
This offence has three parts:
- A course of conduct
- Which amounts to harassment of another and, which
- The defendant knows or ought to know amounts to harassment of another.
This 3rd element of the offence will be satisfied if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. This offence can carry a maximum sentence of 6 months in prison.
It is defence to show that that it was:
- Pursued for the purpose of preventing or detecting crime,
- That it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
- That in the particular circumstances the pursuit of the course of conduct was reasonable.
Section 2A – Stalking
Within the statute the elements of this offence are that it is a course of conduct which amounts to harassment and that behaviour can be described as stalking. The act does not define stalking but gives examples including following a person, contacting them, watching or spying on them. One element alone will not create an offence. it must be a course of conduct that meets the general understanding of harassment.
Like the offence of harassment stalking will be dealt with in the Magistrates’ Court. It carries a maximum of 6 months in prison and proceedings must be started within 6 months of the last date of the behaviour complained of.
Where fear of violence is involved on at least two occasions or serious alarm or distress the more serious offences under section 4 or 4A may apply.
A single incident cannot amount to a course of conduct, there must be conduct which is harassing on 2 or more occasions. The behaviour must be reasonably proximate in time and includes behaviour which causes alarm or distress.
How does this apply to the sports and leisure environment?
Women often feel vulnerable to the unwanted attention of men when exercising. This sense can be heightened when they are exercising alone or in public places. Men interrupt, interfere or disturb them with their sporting activity. This can be name calling, whistling or commenting on women’s bodies or activity, following, refusing to give space to faster runners or swimmers, taunting by interference with equipment, photographing and touching or sexually assaulting women. The last two of this list would be offences of assault or sexual assault but the proceeding behaviours may not amount to offences of harassment. Each incident might leave a woman feeling “harassed”, more bothered than they should be when already hot and sweaty but they would not amount to a “course of conduct”. A range of activity with cameras is now covered by the extension of the offence of voyeurism to cover up skirting.
A woman who visits a gym three times a week and on each occasion experiences unwarranted staring, name calling or taunting from different men is not protected by harassment law. The offence of harassment can be committed by more than one person but they have to be shown to be acting together. A swimmer who is left no room to swim because two men cannot allow themselves to use a slower lane is impeded in her exercise but is not subject to a course of conduct from an individual or individuals aiding and abetting each other. A woman who is jostled from the front of a parkrun because men wrongly assume she slower than them is a victim of everyday sexism not of legally defined harassment.
Harassment legislation begins to offer protection where it can be identified as a course of behaviour and for this reason reporting, complaining and recording can be important. Lewd sexualised comments in gym reported to reception staff or recorded may assist in identification and providing evidence of the necessary course of conduct if the behaviour recurs. Taking note of a location or work site from which harassment occurs can be difficult when the reaction is put distance between the victim and perpetrator but it may be of assistance to identification if there is a recurrence.
Martha’s feature in MailOnline
Martha Whitehead was asked to comment on the current issue of female gym-goers feeling unsafe through assault and harassment.
“Women often feel vulnerable to the unwanted attention of men, particularly in situations such as exercising, where men may interrupt, interfere or disturb them by name calling, whistling or commenting on their bodies or activity.
Some men follow women, refuse to give space to faster runners or swimmers, taunt them by interfering with equipment, photograph and touch or sexually assault them.
The latter two would be offences of assault or sexual assault and there is a range of activity involving cameras which is now covered by the extension of the offence of voyeurism to cover up-skirting. But the other behaviours most likely do not amount to harassment. That said, harassment legislation begins to offer protection where it can be identified as a course of behaviour. For this reason reporting, complaining and recording can be important.”
You can read the full MailOnline article here.