@RoomForDebate: Do We Need a Law Against Catcalling? (Updated)

The New York Times Room for Debate series has, of late, ranged from the irrelevant to the presumptive, which is unfortunate given the size of its soapbox and its ability to offer meaningful insight into issues confronting society.  There are often good arguments on both sides of an issue, worth knowing if a thoughtful society is to make intelligent decisions.

One of the problems reflected in the editorial choices made is their favoring advocates and academics as their “debaters,” the former bringing a woeful lack of doctrinal knowledge and the latter bringing a woeful lack of real world experience.

More often than not, the debaters fail to inform, and instead inflame as die-hard advocates of the cause. Rarely does the Times invite a knowledgeable practitioner, say a criminal defense lawyer, to opine, when they raise questions of, say, criminal law.

Today’s Room for Debate, brought to my attention by Liliana Segura, is one of both great interest and concern to those of use who address the intersection of criminal law, First Amendment law and, dare I say it, feminist concerns.  The question posed: Do We Need a Law Against Catcalling?

The issue arose following the release of a donation-solicitation video that’s been embraced by many women as demonstrating the pervasiveness of “street harassment.”

The comments range from sexual to “hello,” “smile” and “god bless.” Notably, it appears that almost every male in the video is of color, and the neighborhoods are predominantly ethnic, reflecting a disturbing racial and cultural bias. Whether an undesired “hello” is harassment is never discussed. This, as is presumed by all involved, including the New York Times, constitutes the new “crime” of “street harassment.”

To the extent it has any parameters, it is the undesired communication by a male to a female, without regard to content. It is, presumptively again, per se “intimidating,” not because it suggests any objective basis for concern, but because women feel that they should not have to hear words they prefer not to hear, and forcing them to do so on the street annoys them. Things that annoy women should be crimes.

The Times offers four debaters, three of whom are feminist advocates whose opinions range from whether this “street harassment” is deserving of life imprisonment or life imprisonment plus Ebola.  One, a sociology professor and director of the Center for Legal Studies at Northwestern University, Laura Beth Nielsen, suggests that this is the equivalent of cross-burning.

I’d propose a law that would prohibit street harassment and would also be consistent with our First Amendment jurisprudence about other kinds of hate speech (cross-burning in Virginia vs. Black) that intimidates, harasses and perpetuates inequality. It would allow states and cities to recognize street harassment for what it is: physical and psychological acts that intimidate, exclude, subordinate and reinforce male dominance over women.

For an academic to hint that a man saying hello to a woman on the street is hate speech, even the most distant equivalent to cross-burning, is the nadir of intellectual dishonesty. For the Times to publish such tripe is a disgrace. Not even the beloved Gray Lady gets to make people stupider.

The fourth debater, Gabe Rottman, is a policy analyst from the ACLU. His role is to offer a tepid defense of free speech, based upon the premise that existing laws are sufficient to put these street harassers in prison.

Emphatically, none of this is to dismiss the legitimate concerns raised by this video and the ongoing problem of street harassment. We should be grateful for the activists who are seeking to raise awareness about this demeaning and despicable practice. We can, however, combat street harassment without sacrificing free speech or risking unintended side effects.

Apparently, the Room for Debate folks were unable to find any thoughtful voice to question the underlying premise, that the utterance of words, even if unseemly, on the street rises to the level of harassment at all.  Or to the question of whether anything that a woman finds undesirable or annoying, is automatically swept up in pejorative language like “harassment.”

One of the most dangerous, ongoing issues is the use of such terminology untethered from meaning; the same can be said of sexual assault, which can range from a physical attack to “stare rape” and off-color jokes.  This is the lexicon of Humpty Dumpty, if not George Orwell. Neither words nor conduct is magically transformed into “harassment” because someone chooses it to be so. Words have meaning, and meaning is not informed by each individual’s feelings.

The knee-jerk reaction to anyone who questions the dogma of victimization is that it must be in support of the hated conduct.  It’s a logical fallacy, but one of many that’s ignored, and a banal defensive reaction.  I don’t write in support of catcalling. I don’t do it, and wouldn’t. I don’t commend it, and wouldn’t.

That it’s annoying isn’t in dispute, but neither life nor the law entitles anyone to go through life without annoyances. In the scheme of such things, the annoyances reflected in the video are remarkably petty.  That anyone would even consider a man saying an unwanted hello to a woman worthy of prosecution reflects how detached a grasp the relative evils of life appear when viewed through the prism of feminist entitlement to a world where they are never annoyed.

There are bad things, terrible things, that happen to people, and to women, well deserving of punitive sanction.  Basic annoyance isn’t one of them.  Should the group that used this video to seek financing want to promote greater respect for women on the street by putting an end to this annoying conduct, bully for them.

That anyone would even consider this criminal, however, is far beyond the pale.  Resort to punishing males for failing to be adequately sensitive to the feelings of females as a solution to societal problems reflects a sickness that is permeating society.  And it’s not the males who are sick.

Additional voices that the New York Times failed to include in the debate (to be added as they go live):

Bmaz, at Empty Wheel, Liliana Segura at The Intercept, Marco Randazza at The Legal Satyricon, and Glenn Reynolds at Instapundit, who offers a very interesting observation:

Different cultures and ethnicities have different ideas of what constitutes appropriate intersexual behavioral, and there’s no particular reason why the standards of upper-middle-class white feminist women should set the norm for everyone. In the old melting-pot days, it might have been appropriate to say that minorities needed to be assimilated to traditional WASP standards of decorum — “civilized” or “elevated” in the idiom of the day. But we’ve long since moved past the notion that there is only one legitimate way to behave as an American.

Is feminism an upper-middle-class white women’s club?

32 comments on “@RoomForDebate: Do We Need a Law Against Catcalling? (Updated)

  1. Marc R

    What element are they changing from the existing crimes of stalking or assault to create this new crime? I don’t see it looking at the links. The act of making an unsolicited comment? If the guy keeps following her every day then it’s stalking, if he acts to make her imminently fear physical violence then it’s assault. This is seriously absurd, and every time I get an email from law school asking me to donate I recall all these law prof quotes that are so far removed from what the law is (i.e. this junk, revenge porn criminality, etc.) …is there already a law against farting in public? Nose picking?

      1. Marc R

        Them? This is going into my law review manifesto as I procrastinate writing a motion for a real client…”An Officer Picking His Nose in Interrogation Room #3: Juxtaposing Garrity with Gideon.”

        1. SHG Post author

          May it please the Court; I was coerced into confessing by the officer’s unwanted harassment when he said “hello.” The pressure was too much for me to bear. Then he picked his nose and I caved to the intimidation.

          1. Jeff Gamso

            Forget the nose-picking part of the motion and you’ve actually got a pretty good argument for another law when this is enacted: The one of unintended consequences.

  2. The Real Peterman

    “Words have meaning, and meaning is not informed by each individual’s feelings.”

    It used to be (correct me if wrong) that the test of whether or not behaviour was a crime was whether a reasonable person believed it to be objectively wrong, but these days we’re seeing activists telling us how the “victim” feels is what matters. If she feels assaulted, she was assaulted. If she feels raped, abused, etc. then lock him up. But at least we still.have the presumption of innocence…oh, yeah, thanks California.

    1. SHG Post author

      A reasonably accurate correction would require far more than would be appropriate in a comment, so I’ll try to boil it down without being too simplistic. Crimes are generally conduct which causes a cognizable harm to another. They are defined so that those who might engage in the conduct are aware that by doing so, they will be committing a crime. When crimes are defined by how other people react to conduct, the person engaging in the conduct would have no idea whether his conduct was criminal or not, since he would have no way of knowing what another person “feels” about his conduct. This is the “vagueness” prong.

      Every crime must have elements, the things that must be proven in order to convict someone of a crime. The elements must be sufficiently narrow as to limit the reach of the law to the conduct that’s unlawful, and not to otherwise lawful conduct. It may be shown theoretically, by the logical extension of the elements to conduct which is lawful, or by the particular conduct involved, which meets the technical elements of the crime but is not the sort of conduct that the law was intended to prohibit. This is the “overbreadth” prong.

      And this scratches just the surface. The question should never be whether “she feels rapes, abused,” but did the accused in engage in conduct that constitutes rape or abuse.

  3. Beth Clarkson

    This problem seems to be similar to the problem of harassment on the internet – I’m talking about unpleasant email and posts, not threats and doxxing. It’s not that the individual interactions are so awful – whether it’s ‘you’re lovely’ or ‘you’re a bi*ch’ – it’s the cumulative effect that makes them all seem intimidating.

    Changing what constitutes acceptable behavior socially to make those interactions less common is needed and video’s like the one that sparked this discussion help. But I don’t see how to deal with this issue reasonably via legal remedies when so much of what is termed ‘harassment’ is so minor that it isn’t reasonable to legislate against it on an individual level.

    1. SHG Post author

      There is nothing wrong with voices telling other voices to shut up and stop the rude, vulgar, obnoxious and idiotic speech. And there is nothing wrong with videos like this raising awareness about the problem. It’s that next step that takes it from stopping the offensiveness to criminalizing every bit of assholish behavior people do.

      We’re all assholes to someone. It doesn’t make it right. Just human.

  4. Richard G. Kopf

    SHG

    The Australians have dealt with the problem of cat calling in the only way that makes sense, and that is to ridicule it.

    By the way, I got this from my attractive daughter in law who lives down under.

    All the best.

    RGK

    PS I pasted the link in plain text to comply with your rules. I hope I have done it correctly.

  5. Tweak

    Gosh, by following this logic, I’ll have to contact my Congressional Representative and demand a law banning my wife from asking me if whatever she’s wearing makes her look fat.

  6. Nigel Declan

    This seems to be an extension of the call for laws and regulations as prophylactic measures to prevent children from ever having to be exposed to anything they might ever find distressing or that might hurt their feelings. At what point does wrapping people in ever more layers of bubble wrap cease to be an act of protection and start to become an effort at isolation?

  7. Pingback: Scott Greenfield: Do We Need a Law Against Catcalling? - TRPWL : TRPWL

  8. JRF

    As a middle aged white male who walks and takes the bus regularly I am often approached by aggressive panhandlers. It’s annoying, but I try not to get worked up by it; inequality and poverty being what they are, I just try to remember that it could be worse. I could be walking around broke needing a dollar to get a beer.

  9. Fubar

    That anyone would even consider a man saying an unwanted hello to a woman worthy of prosecution reflects how detached a grasp the relative evils of life appear when viewed through the prism of feminist entitlement to world where they are never annoyed.

    Keep your eyes straight ahead on the street.
    Do not tip your hat. Do not greet
    Anyone that you see,
    ‘Cause they just might be me —
    Then it’s crime because I’m the elite!

    1. SHG Post author

      In light of the neo-Victorian aspect of neo-feminism, I would prefer to call it the veil, worn by all those whose feelings are too sensitive for the harsh word, “hello.”

  10. Pingback: "Do we need a law against catcalling?" - Overlawyered

  11. Atlanta

    As a man having spent many years in the US, I was interested in the video and the debate. I immediately noted the neighborhoods that the person was walking through (i have to be really cautious about the words i used). I want to discuss it with some friends both genders (a different word is grammatically and meaning-wise correct but again not here)- one immediate observation I had is that the first time I went to Atlanta (from my East Coast home) and I went out in the morning early to get breakfast, every person in the street of Central Atlanta said Hello to me. There is also a similar situation where Crocodile Dundee tries to do same in NYC. Not demeaning the big issue of course.
    regards

    1. JRF

      I have noticed the same thing. As noted above, I am not likely the object of sexual attention, but lots of street types say hello and don’t go into the panhandling thing. It seems to me that we might be talking about–in many cases–an understandable desire of societies losers to be acknowledged as human by others. BOTH BY THEIR PEERS AND BY SOCIETIES WINNERS!

  12. Ryan

    Chris Rock has a riff on sexual harassment and its subjectivity that I think is relevant, where he ask:

    Sexual harassment! What is sexual harassment?! What’s the difference between sexual harassment and just being an idiot? I mean, if my father didn’t harass my mother, I wouldn’t be here! I mean, I understand some sexual harassment.. if a man is your boss and says, “Hey, sleep with me, or you’re fired.” That’s sexual harassment. And that’s the only thing that’s sexual harassment! Everything else falls under “Just trying to get laid.” You can’t put a man in jail for that! I don’t care how hard he tries, that’s all he was trying to do! Anita Hill started this whole thing. It’s all about looks, you know? Because if Clarence Thomas looked like Denzel Washington, this would have never happened! She’d be all, “Oh, stop it, Clarence, you nasty! Your fine self!” So, what’s sexual harassment, when an ugly man wants some? “Oh, he ugly! Call the police! Call the authority!”

    1. SHG Post author

      Ironically (because a lot of people think they look alike), Marco made a similar point:

      She’s wearing a short skirt because she wants a guy to notice. Or whatever she did to make herself look hot, she did do that because on some level, she does want a penis to come running after her, with its life support system (the man) attached to it.

      BUT NOT YOU.

      Yes, she’s looking to get fucked, but NOT BY YOU.

      Of course, Chris Rock is funny when he says that.

        1. SHG Post author

          You’re going to have to ask Marco. I’m just the messenger. He’s obviously more knowledgeable about such things.

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