I ran across an academic paper published in a Cornell University academic journal by a professor in 1993. In it she discusses how the male-dominated field of law actually influences the lack of specific street harassment laws geared to protect women and thus contributes to gender-based discrimination.
Of course since then, several states have enacted sexual harassment laws which supplement the older general harassment statutes in various American states. Several already have sexual misconduct, sexual offenses and harassment statutes that street harassing behavior would fall under as violation of the law. So why is it still, in 2017 so rampant, why does law enforcement do not enforce these laws consistently? It is the same issue that women have dealt with several years ago and still do: despite the United States claiming to be a modern democracy, women, especially those of color are still treated as second class citizens. Even where in law enforcement whether police officers or judges that have a greater population of female filled positions, sexual harassment offenses are not properly adjudicated. There are political factors to consider: women in law enforcement who want to fit in with the “boys” and thus view all citizens as suspect and untrustworthy–thus if a female police officer actually lead the helm in street harassment prevention and law enforcement she may appear bias or weak. This rings true for female judges nd many of us have witnessed news reports regarding sexual assault in various branches of the military and how there is usually a cover up by male superior officers. It was only in the 1940s-1960s where many states repealed laws permitted the legal rape of their wives because women were considered property of the man. Yet, this nation boasts of how modern it is in its treatment of women when it is no different than most nations it claims to lead in civil and human rights. Technological advancement is not a substitute for the inhumane treatment and degradation of women.
The one thing I do disagree with is the use of the term feminist in defending a basic human rights. Doing so, separates women as either less than or more than by claiming the rights to be special to women which is the antithesis of ‘equal rights.’ Women are human and the ability for freedom of assembly, freedom of movement, free to not have random strangers (whether male or female) put their hands on you, sexually assault or sexually harass you is a basic right of any man, woman and child. To make street harassment solely about male perpetrators does a disservice. There are closeted lesbians, child molesters, and overt homosexuals who will street harass and sexually assault members of the same gender and those victims deserves just as much protection under the law and freedom from street harassment as anyone else. This is purely my perspective on the issue. However, I do understand that most street harassment is against women and girls in general in the United States and most street harassers are black male “Christians”, whether in urban or suburban areas.
Anyway, I wanted to post the short academic paper from long ago to demonstrate how American society haven’t matured much and that its women are still under siege in this ‘modern democracy.’ http://scholarship.law.cornell.edu/facpub/142/
For those of you who do not links or being transferred to another webpage, I have provided the text of the article embedded below:
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ARTICLE: STREET HARASSMENT AND THE INFORMAL GHETTOIZATION OF WOMEN.
NAME: Cynthia Grant Bowman *
BIO:
* Associate Professor of Law, Northwestern University School of Law. For their helpful comments on early drafts of this Article, I thank Mary Becker, Locke Bowman, Bernardine Dohrn, Leonard Rubinowitz, Morrison Torrey, and the members of the Chicago Feminist Law Teachers Colloquium. I am grateful also for the research assistance of Genevieve Daniels, Victoria Hinson, Sara Love, and Lyn Schollett. This Article is dedicated to the memory of my colleague Jim Haddad, a gentle man and good friend.
LEXISNEXIS SUMMARY:
… Until relatively recently, for example, no term even existed to describe what is now universally called “sexual harassment,” although the phenomenon itself was well known to women. … This Article examines another type of sexual harassment that profoundly affects women’s lives: the harassment of women in public places by men who are strangers to them, which I call “street harassment.” … Although street harassment encompasses a wide variety of behaviors, gestures, and comments, it has some defining characteristics: (1) the targets of street harassment are female; (2) the harassers are male; (3) the harassers are unacquainted with their targets; (4) the encounter is face to face; (5) the forum is a public one, such as a street, sidewalk, bus, bus station, taxi, or other place to which the public generally has access; but (6) the content of the speech, if any, is not intended as public discourse. … If as many as one out of three American women has been subjected to rape or an attempted sexual assault, the target of street harassment may well be a woman who carries this traumatic history within her. … Assault is an appropriate claim in such cases, and targets of street harassment should pursue claims with the aim of establishing a reasonable woman standard by which to measure the impact of the harasser’s conduct. …
HIGHLIGHT: The law often overlooks harms to women. One such harm is the harassment that women face when they travel along city streets and appear in other public places. This street harassment can have profound effects on women’s full participation in the public sphere. In this Article, Professor Bowman calls attention to these harms and proposes potential legal remedies for the harassment of women on the public streets. She begins by describing what street harassment involves and whom it affects and then discusses the legally cognizable harms to women and society. Next, she evaluates the criminal and civil laws that might be used to target harassment and describes their failings. Finally, she proposes new methods to stop street harassment and open the public sphere to women. Although Professor Bowman admits that her solutions are not foolproof (and may face severe constitutional attacks), she emphasizes that for the law to recognize the substantial burdens that street harassment places on women’s liberty, equality, and sense of self-dignity is a first step toward a solution.
A woman walks down a city street. A man whom she does not know makes an obscene noise or gesture. She counters with a retort or ignores him and walks on.
This is a common enough sequence of events. It happens every day of the year. . . . Superficially, this is a simple, ordinary encounter. . . .
But beneath the surface is a complexity of feeling, thought, and intention that, despite two decades of feminist theorizing and two millennia of women writing about women, we have just begun to decode. Hidden in this complexity are the personal and political contradictions of women’s lives, making the experience of street hassling the quintessential moment of femininity in our culture.
MURIEL DIMEN, SURVIVING SEXUAL CONTRADICTIONS n1
TEXT:
[*518] A recurrent theme of feminist jurisprudence is that the law fails to take seriously events which affect women’s lives. The law trivializes or simply ignores events that have a profound effect upon women’s consciousness, physical well-being, and freedom. Until relatively recently, for example, no term even existed to describe what is now universally called “sexual harassment,” although the phenomenon itself was well known to women. n2 Yet, within the brief period since the naming and describing of this phenomenon, the concept has entered the law as a form of sex discrimination forbidden under Title VII of the Civil Rights Act of 1964. n3 The development of this legal concept and its embodiment in theories of liability has significantly affected popular understanding of acceptable modes of interaction in the workplace. n4 Thus, as Catharine MacKinnon has described, “the legal concept of sexual harassment reenters the society to participate [*519] in shaping the social definitions of what may be resisted or complained about, said aloud, or even felt.” n5
This Article examines another type of sexual harassment that profoundly affects women’s lives: the harassment of women in public places by men who are strangers to them, n6 which I call “street harassment.” n7 Street harassment is a phenomenon that has not generally been viewed by academics, judges, or legislators as a problem requiring legal redress, either because these mostly male observers have not noticed the behavior n8 or because they have considered it trivial and thus not within the proper scope of the law. n9 In Part I, therefore, I describe the very real harms of this widespread social phenomenon. I focus upon its effects and show how women experience street harassment — how being subjected to this intrusion feels from a woman’s point of view — and the consequences it has on our lives. n10 In [*520] Part II, I recast these harms into categories recognized by the law. In Part III, I examine a variety of concepts that current law might use to combat conduct of this sort, including assault, intentional infliction of emotional distress, invasion of privacy and the tort of intrusion, as well as the many statutes already on the books that prohibit intimidation or harassment and the use of abusive language on the streets. I then show how these legal categories, as they have been interpreted so far, have not in fact addressed the harms of street harassment.
From a feminist perspective, it is not surprising that existing legal concepts, fashioned primarily by male judges and legislators in light of the experiences encountered by men, fail to provide effective remedies for the peculiarly female-directed experience of street harassment. Nonetheless, this failure fundamentally contradicts the values underlying Anglo-American law, for the legal remedies available to women in this context are inadequate to secure even the most primary goods of a liberal democratic society. “[L]iberty,” as John Locke observed, “is to be free from restraint and violence from others; which cannot be where there is no law. . . .” n11 The liberty of women, in this most fundamental sense of freedom from restraint, is substantially limited by street harassment, which reduces their physical and geographical mobility and often prevents them from appearing alone in public places. n12 In this sense, street harassment accomplishes an informal ghettoization of women — a ghettoization to the private sphere of hearth and home.
The most fundamental definitions of liberty include the right of an individual to go where she chooses in spaces that are public. n13 Indeed, liberty of this sort is essential to equal participation in the affairs of the polis. n14 The security to move about in public, what Blackstone [*521] called “the power of locomotion,” n15 is one of the most basic civil rights; it is essential to the rights to assemble and petition for redress of grievances — the primary prerequisites to participation in public affairs and admission to the public realm. n16 Thus, when the law fails to protect women from street harassment, it deprives them of one of the basic goods for which government was ordained, leaving them in an Hobbesian wilderness men do not share. n17
In order to participate as equal citizens in the polis, women must reclaim the public space. Hence, my inquiry does not end simply with an analysis of the law’s current inadequacy in addressing the harms of street harassment. We must either fashion new legal concepts equal to this task or reformulate existing legal categories to make them apply to the experience of street harassment. This is one of the goals of what Robin West has called “reconstructive feminist jurisprudence”: to “reconstruct the reforms necessary to the safety and improvement of women’s lives in direct language that is true to our own experience [*522] and our own subjective lives.” n18 Therefore, in Part IV of this Article I propose a variety of ways in which we can use or reform the law to address street harassment. However, these potential legal remedies will only enter the law if women — as plaintiffs and as lawyers — determine collectively to adopt them.
I. STREET HARASSMENT: WHAT IT LOOKS LIKE FROM A FEMINIST PROSPECTIVE
The literature of law and social science is largely silent about the harassment of women in public places. The legal academy has not viewed street harassment as an issue worthy of attention, despite Robin West’s repeated depiction of it as a disempowering injury to women that is virtually unrecognized by the law:
[W]omen suffer unpunished and uncompensated sexual assaults continually. Women who live in urban areas and walk rather than drive or take taxis endure tortious or criminal sexual assaults daily. Although we have a trivializing phrase for these encounters — “street hassling” — these assaults are not at all trivial. They are frightening and threatening whispered messages of power and subjection. They are, in short, assaults. Yet, men who harass women on the street are not apprehended, they are not punished, the victims are not compensated, and no damages are paid. The entire transaction is entirely invisible to the state. n19
With the exception of one sociological discussion written in English n20 and one survey by two Austrian sociologists, n21 the study of street harassment has been carried out by a handful of scholars in the fields of speech, language, and communication. n22 In the face of this relative silence, any student of street harassment must supplement the academic literature with sources less typical of legal scholarship — popular magazines directed at female audiences, literature, movies, plays, and letters to the editor in large city newspapers — in which women [*523] have related their experiences with street harassment. n23 From these studies and stories, it is possible to construct an account of the harms of street harassment by describing the impact it has on its individual targets n24 and to assess the impact of street harassment upon women as a group, upon relations between the sexes, and upon society as a whole.
A. Toward a Working Definition of Street Harassment
A wide variety of behavior is included within the conduct generally considered by targets, survey respondents, and commentators to constitute street harassment. n25 It includes both verbal and nonverbal behavior, such as “wolf-whistles, leers, winks, grabs, pinches, catcalls and street remarks”; the remarks are frequently sexual in nature and comment evaluatively on a woman’s physical appearance or on her presence in public. n26 The comments range from “Hello, baby” to vulgar suggestions and outright threats, n27 such as “fucking bitch, fucking cunt,” n28 “[w]hite whore,” n29 or “you’re just a piece of meat to me, bitch.” n30 Although street harassment encompasses a wide variety of behaviors, gestures, and comments, it has some defining characteristics: (1) the targets of street harassment are female; n31 (2) the harassers are male; (3) the harassers are unacquainted with their targets; (4) the encounter is face to face; (5) the forum is a public one, such as a [*524] street, sidewalk, bus, bus station, taxi, or other place to which the public generally has access; n32 but (6) the content of the speech, if any, is not intended as public discourse. n33 Rather, the remarks are aimed at the individual (although the harasser may intend that they be overheard by comrades or passers-by), n34 and they are objectively degrading, objectifying, humiliating, and frequently threatening in nature.
Anthropologist Micaela di Leonardo has offered the best working definition of street harassment:
Street harassment occurs when one or more strange men accost one or more women . . . in a public place which is not the woman’s/women’s worksite. Through looks, words, or gestures the man asserts his right to intrude on the woman’s attention, defining her as a sexual object, and forcing her to interact with him. n35
Although I will attempt to improve upon this definition by making it more specific and in some ways narrower when I define street harassment as a legal term, n36 di Leonardo’s definition is excellent for its descriptive value. It offers an objective rather than subjective standard by which to define street harassment; it focusses upon the harasser’s actions rather than upon his intentions or perceptions; and it captures the experience of street harassment as intrusion.
One must turn to first-person accounts and to literature to get a sense of the experience of street harassment. The following description appeared in Mademoiselle magazine in 1984. It recounts the experiences of a woman who had been inclined as a girl to regard remarks from strange men or boys on the streets as complimentary:
[*525] The shift in [my] thinking started when I moved to Manhattan and discovered that the relatively innocuous “Hey, good-looking” of my suburban girlhood was the exception rather than the rule. For the most part, men simply approached me with crude propositions. The first time a man walked toward me, opened his mouth, began panting and jerked his crotch, I didn’t feel the least bit affirmed or desirable. I did feel embarrassed, humiliated, furious — and helpless. . . . It made me feel vulnerable and defenseless, as if I didn’t really have control over my own flesh. n37
Another woman reported the following interchange, which occurred when she was out walking, absorbed in serious thought, and passed two men on the sidewalk:
“Hey, why so serious, honey? Give us a little smile.” My sense of humor, he didn’t know, was temporarily out of service, so of course I didn’t give him a little smile. But in not smiling, I had again violated the code, provoking another seizure of silent suffering that became verbal. As I passed the sleeve on the street, it hissed a word at me, with the edge of anger to it, with a sharp rebuke in it: “Bitch.” n38
This account describes a common pattern, in which the target’s failure to response results in escalation and a superficially friendly interaction is transformed into one that is transparently hostile. n39
Finally, an example from a novel by Joyce Carol Oates:
False facts.
The detour around the construction, the mud, the planks, Elena walking carefully on one of the planks, and one of the men yelling at her. Cupping his hands to his mouth, yelling. Another man laughing. Another man laughing. Another man, stocky in his workclothes, throwing something at her that hadn’t enough weight to carry itself to her — just a crumpled-up paper bag, a lunch bag.
False facts: they didn’t really want to hurt her.
Didn’t hate her.
Didn’t want her dead.
False facts: the recitation of the weather around the country, the temperature recorded at all the airports. You believe it must mean something but it will not.
False facts: blood on instruments, no proof of pain. Proof only of blood. n40
[*526] One cannot help but note the thinly concealed violence underlying each of these encounters.
The interactions described above also reflect major deviations from what sociologists refer to as the norm of civil inattention among strangers in public places. n41 Typically, unacquainted persons passing on a public street, particularly in large cities, do not address one another, but instead perform an avoidance ritual: they make eye contact briefly from a distance of eight to ten feet, then avert their eyes and raise them again with a mid-distance focus on a point to the side of the passerby. n42 Staring at a stranger is a well-established cultural taboo. Indeed, Erving Goffman noted, “‘[t]he act of staring is a thing which one does not ordinarily do to another human being; it seems to put the object stared at in a class apart. One does not talk to a monkey in a zoo, or to a freak in a sideshow — one only stares.'” n43
Breaches of civil inattention that include a spoken component typically occur only when one encounters a person who is either very unusual (such as an individual carrying a couch, hopping on one foot, or dressed in costume) or unusually similar to oneself in some respect (for example, someone wearing the same college sweatshirt or driving the same make of car), or who is accompanied by someone or something in an “open” category, such as dogs or children. n44 Men seem to regard women generally as such “open persons.” Unlike men, women passing through public areas are subject to “markers of passage” that imply either that women are acting out of role simply by their presence in public or that a part of their role is in fact to be open to the public. n45 These “markers” emphasize that women, unlike men, belong in the private sphere, the sphere of domestic rather than public responsibility. n46 Ironically, men convey this message by intruding upon a woman’s privacy as she enters the public sphere.
Central to the freedom to be at ease in public spaces is the capacity to pass through them while retaining a certain zone of privacy and autonomy — a zone of interpersonal distance that is crossed only by mutual consent. If, by contrast, women are subject to violation of [*527] that zone of personal privacy when they enter public areas, that very invasion of privacy effectively drives women back into the private sphere, where they may avoid such violations. Thus, by turning women into objects of public attention when they are in public, harassers drive home the message that women belong only in the world of the private.
B. Is Street Harassment a New Phenomenon?
Rare but occasional mention in the case law demonstrates that the harassment of women in public places predates the modern period. n47 One particularly graphic account appears in the report of an 1875 suit for damages brought by a twenty-year-old schoolteacher against the Chicago & Northwestern Railroad for the unseemly behavior of its conductor:
The conductor then came and sat down near the plaintiff. . . . “He said, ‘I suppose you are married like all the rest of the school marms?’ I said, ‘No, I am not.’ Then he sat up nearer to me, and put his hand in my muff, and said, ‘There is room for two hands in this muff, aint there?’ I said, ‘No, sir, there is not for yours,’ and jerked my muff away. . . . I had the tassel of my muff in my hand, tossing it, and he said, ‘If you don’t stop twisting that, you will wear it all out.’ I said, ‘I don’t care if I do.’ He then said, ‘What makes you look so cross?’ I didn’t answer him, but turned away from him. Pretty soon he got up, and I supposed he was going away. He stepped to the side of my chair, threw his arms around me, and held my arms down. He threw his left arm around my shoulder, and took hold of my arm between the shoulder and left elbow with his right arm; he pressed his elbow on my right arm, and then commenced kissing me. I said, ‘Oh, let me go; you will kill me.’ He said, ‘I am not agoing to hurt you.’ Then I said, ‘Do let me go; I will jump out of the car, if you will.’ I tried to get up on my feet, and he pushed me back in the chair, and said, ‘I aint agoing to hurt you.’ Then I said, ‘What have I ever done to you, that you should treat me in this way?’ After [*528] he had kissed me five or six times, he said, ‘Look me in the eye, and tell me if you are mad.’ I said, ‘Yes, I am mad.'” n48
Many women reading this account in the 1990s would likely react to it with an empathetic identification drawn from similar experiences of sexual harassment. Although this encounter resulted in an outright assault — indeed, a battery — the imposition of unwanted attention of a type leading to assault is familiar to female passengers on buses and subway trains today. n49 For this reason, the story sounds remarkably modern.
With the advent of the “Second Wave” of the women’s movement in the 1970s and 1980s, personal accounts of street harassment began to appear in popular journals with some frequency. Harassment may also have become more offensive and frequent in these two decades. n50 The increase in harassment seems attributable, at least in part, to the many changes in women’s lives during this period, including their entry into the workforce in record numbers, the rise both in the age of first marriage and in the divorce rate, the delay of childbirth on the part of working women, public acceptance of unchaperoned women; and the outdoor nature of the physical fitness movement. n51 All of these changes increased the likelihood that women would be present in public areas and would be there unaccompanied by children or male escorts. n52 Periods of recession and unemployment also seem to be associated with increases in the incidence of street harassment — by literally placing men on the streets in many neighborhoods. In the opinion of some, a more general deterioration in public civility has also exacerbated the problem. n53 Thus, what may well be an age-old institution has become a particularly virulent and widespread practice in modern American cities.
[*529] C. The Geography of Street Harassment
Street harassment is a common occurrence in large urban areas. News articles and commentators report that street harassment is particularly frequent, intense, and sexually explicit in Washington, D.C. n54 Street harassment occurs both in the South of the United States and in the North. Florence King described her encounter with some “Good Ole Boys,” whom she described as a “Southern Wasp phenomenon” with a facility for double entendre:
Benches always draw the Good Ole Boys; any long seating arrangement in the South is bound to be full of them. Courthouse railings are their favorite hangout but a row of anything will do.
As I walked past them [in a bus station waiting room] it began.
“Shore would like to have that swing in my backyard.”
“You want me to help you with your box, li’l lady?”
“Hesh up, Alvin, that ain’t nice. Don’t you talk to her like that.”
“I just want to help her with her box, thass all.” n55
Indeed, street harassment is a worldwide phenomenon, n56 apparently absent only in small villages and under fundamentalist regimes in which women are literally veiled and seldom seen in public. n57 One graduate student from India told me, for example, that, in the more than one year during which she worked as a lawyer in New Delhi, she was harassed at least once every day; she attributed this harassment to the fact that she was wearing Western clothes and engaging in non-traditional pursuits. Newspaper reports support her account of the pervasiveness of this conduct, which is called “Eve teasing” in India. n58
Within American cities, harassment is more common in certain places than others. Construction sites are perennial problems, and [*530] the presence of street pornography in an area seems to increase the likelihood of hassling, perhaps by symbolically condoning sexist attitudes and behavior. n59 Some women report that they are spared stares and comments when they are in public places traditionally associated with the home, such as department stores, grocery stores, and churches; n60 but others write of unpleasant encounters in these places as well. n61 In addition, both personal and shared experiences reveal that men in trucks often harass women in cars. The 1991 movie Thelma and Louise graphically depicted this particular form of harassment. (The movie’s two female protagonists ultimately confront their harasser and blow up his truck, usually to the cheers of the audience.) n62 Case law and recent news articles show that taxicabs are also a common venue for harassment. n63
Benard and Schlaffer’s empirical study indicates that there are some places, such as small villages, in which street harassment does not occur. This discovery led the authors to conclude that harassment is confined to the “genuinely public world,” where people are strangers to one another. n64 Apparently if someone exists for you as an individual, [*531] you are less likely to harass her — a fact reflected in the proto-typical question used to confront harassers: “Would you want someone to treat your sister (or wife, or mother) this way?” n65
D. Harassers and Their Targets: Who Are They?
As should be clear from these accounts, the men who harass women in the street are not just construction workers; they include bus and taxi drivers, train conductors, males congregated on the streets, “Good Ole Boys,” and passers-by. The activity crosses lines of geography, religion, race, age, and class. As one observer has suggested, the only reason street harassment superficially appears to be an institution of working-class men is that their place of business is more often the street. n66 Benard and Schlaffer, who personally tested their hypotheses by acting as “testers” on the streets, reported that age, education, and income bore little relation to harassing behavior (although younger men tended to be more aggressive, and older men tended to lower their voices). n67
The target of street harassment is literally every woman between the age when her body begins to develop sexually and that undefined point when she is no longer assumed to be a sexual being because she is “too old.” Different women may experience street harassment in different ways, though. For a very young girl, it is one of her first lessons in what it means to be a sexual being — a confusing and shame-producing experience. According to Robin West:
Street hassling is also the earliest — and therefore the defining — lesson in the source of a girl’s disempowerment. If they haven’t learned it anywhere else, street hassling teaches girls that their sexuality implies their vulnerability. It is damaging to be pointed at, jeered at, and laughed at for one’s sexuality, and it is infantilizing to know you have to take it. n68
Lesbians are subjected to a uniquely offensive experience, as they are both “punished” for being women and assumed to be what they are [*532] not — heterosexual. On the other hand, if it is obvious that they are lesbian, men harass them for that status as well. n69
The experience of street harassment may also differ with the race, class, or ethnicity of the targeted woman and the history of gender interactions to which she has become accustomed. Although it would be impossible adequately to describe all of these disparate reactions, it is useful to note some differences between the harassment experience of African-American women and of European-American women. In many African-American communities, men and women engage in sexually oriented banter in public; several writers have pointed to similarities between street harassment and these forms of repartee. n70 Others conclude that African-American women are therefore not harmed by street remarks. n71 Yet, although “rapping” may resemble some forms of street harassment in some respects, this custom is also distinguishable from street harassment, because women are not ratified speakers in the typical harassment context, but are merely intended overhearers. n72 Furthermore, badinage, or humorous banter, is a mutually agreed-upon interaction, whereas street harassment takes place and persists even when the woman actively avoids interaction. n73 Finally, it should be noted that, although many African-American women respond assertively to rapping, they typically do not initiate it. Thus, even in this context, speech rights are asymmetrical. n74
Although African-American women may be familiar with forms of interaction similar to street harassment and thus may experience harassment as something akin to a familiar gender interaction, it does not necessarily follow that they like it. I have not located any accounts in which Black women stated that they enjoyed street harassment. Rather, it is clear from newspaper stories that African-American women suffer great pain from street harassment and that in many large cities such harassment can be both more frequent and more intense for them than for other women. n75 One African-American [*533] woman described the difference between the interactions to which she was accustomed and those that she encountered upon moving to Washington from the South:
I come from . . . the South. Where I’m from, black men and women address each other on the street. Those who don’t are considered rude, ill-bred and hateful of black tradition. So I once had no qualms about speaking to men on the street.
But in the past few months of living in Washington, I have lost the ability to discriminate between men who are being friendly and those who wish to do me harm. Now I view all gestures from men on the street as potential threats. All the car honks and “hey-baby” comments that I once considered just annoying are now ominous and alarming. n76
In short, despite familiarity with forms of interaction superficially similar to street harassment, African-American women are also offended by it.
Moreover, Black women are harassed by both white and Black men — experiences that evoke different historical associations. Historically, African-American women have been subjected to particularly virulent and degrading forms of harassment by white men. They were treated as the sexual property of their masters during slavery, and this attitude survived emancipation. n77 A typical modern interchange is described in a scene in Lorraine Hansberry’s To Be Young, Gifted and Black:
In these streets out there, any little white boy from Long Island or Westchester sees me and leans out of his car and yells — “Hey there, hot chocolate! Say there, Jezebel! Hey you — ‘Hundred Dollar Misunderstanding’! YOU! Bet you know where there’s a good time tonight. . . .” n78
bell hooks has accurately explained this exchange as premised upon the assumption that all Black women, regardless of their class, are prostitutes and are available as sex objects. n79 Thus, when African-American [*534] women are harassed on the street, the experience evokes a long history of disrespect, degradation, and inhumane sexual mistreatment to which Black women have been subjected over the years. One woman has tried to convey this message to African-American men who engage in street harassment:
I would like to address a special concern to those black men who are making the District a living hell for their sisters.
. . . Your lewd invitations and crude commands may seem funny to you, but the truth is that nothing comes closer to the slave-era mentality of white men toward black women.
Young black men yell at women who are mothers, “Come here, girl!” They whistle at women as if calling dogs. Even black children are not immune. I heard a grown man tell a 12-year-old, “I’ll be back when you get a little older, baby.” n80
Hence, despite familiarity with sexual repartee on the streets, Black women may in fact suffer more intensely from street harassment than other women, because it resonates with remnants of a slave-era mentality.
In sum, although women from different backgrounds may experience street harassment through the lens of different historical and personal experiences, at base it remains an unwelcome and painful event for us all. n81 In this sense, it is also a universalizing experience — one that virtually all women share. Indeed, its near-universality denotes the extent to which such harassment is simply accepted as normal and thus becomes invisible as a social problem. This invisibility may in turn account for the relative silence about street harassment in any form of legal literature.
II. WHAT ARE THE LEGALLY COGNIZABLE HARMS OF STREET HARASSMENT?
Although street harassment affects women’s psychological well-being and conduct, in the cold light of the law the question is whether this impact rises above the ordinary annoyances that citizens must [*535] endure as the price of living in society. n82 To answer this question, one must return to the accounts that women have given of their individual and collective experiences as targets on the street. These accounts demonstrate that street harassment not only has a significant impact upon the lives of women as individuals, but also has significant consequences for society as a whole.
A. The Impact of Street Harassment upon Women
Street harassment evokes from its targets emotional responses that range from moderate annoyance to intense fear. Two themes repeatedly appear in women’s responses to inquiries about the experience of harassment: the intrusion upon privacy and the fear of rape. For example, eight of the ten women interviewed by Carol Brooks Gardner referred to street harassment as an invasion of privacy, and an equal number mentioned similarities to rape. n83 Many women apparently view the issue as one of privacy and offer remarks such as: “‘Women have traditionally been considered weak and vulnerable, thus it is safe to intrude on their privacy. The reason I hate to be whistled at is I feel like that person is forcing his way into my space, whether I like it or not.'” n84 Other women point to women’s constant fear of rape and remark that there is no way of knowing which stranger will in fact turn out to be a rapist. n85 Thus, each time a strange man addresses a woman on the street, she must entertain the possibility that he might rape her.
Women have good reason to believe that street harassment can serve as a precursor to rape. Although most encounters may turn out [*536] to be innocuous, this fear is not unrealistic, given that as many as one in three women in our society have been victims of rape or attempted rape at some time in their lives. n86 Furthermore, rapists often harass women on the street and violate their personal space in order to determine which women are likely to be easy targets — a practice called “rape-testing.” n87 Because potential rapists frequently select their victims by looking for women who appear vulnerable to assault, they may approach a potential victim and “test” her by a variety of means, including making lewd or insinuating remarks, to see if she can be intimidated. n88 If the target reacts in a passive fashion to the harassment, the rapist may assume that she will probably not fight back, and he is more likely to rape her. n89 Thus, the connection between rape and harassment is not just in the mind of the woman.
Women who have been victims of rape are especially vulnerable to the harms that street harassment inflicts. If as many as one out of three American women has been subjected to rape or an attempted sexual assault, the target of street harassment may well be a woman who carries this traumatic history within her. Thus she may be both especially fearful and especially traumatized by an encounter on the streets. n90 Although a harasser generally cannot ascertain whether a particular target has been raped, the statistics on rape make this possibility of heightened injury foreseeable. Even if a target who has previously been raped reacts with fear or panic out of proportion to the nature of the remark addressed to her, hers is an “eggshell” shared [*537] by millions of women. n91 However, even if the injury were not so foreseeable, the harasser would still be liable. n92
Although women are deeply harmed by the fear street harassment arouses, their immediate reactions to it are often counterproductive. Women who are harassed on the street typically do not respond to the harasser but instead try to ignore him, or, more accurately, pretend to ignore him. Women may react this way because they are unwilling to admit their powerlessness in the situation, n93 are afraid of physical attack, n94 or are reluctant to draw attention to themselves or to be displeasing. n95 In other circumstances, they are simply annoyed and do not want to reward the harasser with a response, or they are embarrassed to have been treated in such a degrading manner. They freeze; they put on a blank face; they try to pretend that nothing is happening. n96 When women take these evasive actions in an effort to mask feelings of invasion, anger, humiliation, and fear, they suffer a psychological beating in the form of emotional distress and feelings of disempowerment. n97 By contrast, one study of rape victims revealed that women who resisted rape, even when they failed to prevent it, were less likely to feel depressed after the assault than those who did not resist; the women who resisted even experienced a degree of psychic liberation. n98 Thus, nonresponse to street harassment may impose its own costs.
Harassment also takes a toll on women’s self-esteem. Street harassment reduces women to sexual objects. The comments and conduct of a harasser then force this perception upon his target. One woman explained:
[*538] While it is true that for these men I am nothing but, let us say, “a nice piece of ass,” there is more involved in this encounter than their mere fragmented perception of me. They could, after all, have enjoyed me in silence. . . . But I must be made to know that I am “a nice piece of ass”; I must be made to see myself as they see me. n99
One author describes the reaction of women to being forced to perceive themselves as objects as a form of “madness”:
Being the Subject-as-Object is maddening. It is to be both Self and Other, and to be torn between them. In such a divided state of mind, one’s perceptions of others, of one’s relations to them, and of oneself become untrustworthy. This chaotic moment can seem like madness, to which one responds with a desperate struggle to understand and explain. When, then, a woman turns into the Subject-as-Object, as in street hassling, she can feel as though she were losing her mind. n100
Although “madness” might seem an extreme description, studies of sexual harassment in the workplace show that its victims suffer severe emotional distress, often accompanied by depression, anxiety, stress, loss of motivation, and guilt, as well as disgust, hurt, and anger. n101 Likewise, according to psychologists, women subjected to public insults on the street suffer a psychological toll from “‘feel[ing] degraded, embarrassed, angry and helpless.'” n102 Harassment may also teach women to be ashamed of their bodies and to associate their bodies with fear and humiliation. Not only does this result harm a woman’s self-esteem, but it may also interfere with her ability to be comfortable with her sexuality. n103
[*539] Finally, street harassment severely restricts the physical and geographical mobility of women. It not only diminishes a woman’s feelings of safety and comfort in public places, but also restricts her freedom of movement, depriving her of liberty and security in the public sphere. n104 Women avoid certain places, sites, or activities (biking and jogging are common examples) for years in order to escape harassment. n105 Students in Washington, D.C., take detours or beg rides in order to avoid being hassled. n106 Thus, harassment makes the urban environment uncomfortable, hostile, and frightening for women. n107 In this way, street harassment restricts women’s mobility in a way that substantially offsets the gains women have made in other spheres:
In an era when women are indeed exercising hard-won options in areas such as employment, childbearing, and politics, they often seem to be limited in simpler choices — whether to go to the movies alone, where to walk or jog, whether to answer the door or telephone. Can we measure the success of a social movement for equality if we do not include an assessment of the quality of life of the affected groups? . . . Without such freedom it is impossible to implement other choices. n108
Fears of rape as well as of harassment itself underlie these restrictions upon women’s mobility. It is usually difficult, however, to disentangle the effects of street harassment from the effects of fear of sexual assault. Harassment in dangerous areas, such as “dark alleys,” [*540] in fact arouses realistic fears of rape. Furthermore, all harassment takes place in a social context in which women are always conscious of the threat of rape. Consequently, any incident of harassment, no matter how “harmless,” both evokes and reinforces women’s legitimate fear of rape. n109 It does so by reminding women that they are vulnerable to attack and by demonstrating that any man may choose to invade a woman’s personal space, physically or psychologically, if he feels like it. n110 Thus, street harassment forms part of a whole spectrum of means by which men objectify women and assert coercive power over them, one which is even more invidious because it is so pervasive and appears, deceptively, to be trivial.
B. The Consequences of Street Harassment for Women, Gender, and Society
The fear, psychological trauma, and restrictions on personal liberty described above have obvious consequences for women as individuals. Not so obvious, perhaps, are the consequences suffered by society as a whole. In fact, the harms of street harassment extend to its impact upon the relationship between the sexes, upon the construction of gender in our society, and upon social and political relationships in general.
First, street harassment both increases women’s dependence on men and contributes to distrust and hostility between the sexes. For example, street harassment, and the related danger of sexual assault, encourage women to seek male escorts in public — men to protect them from harassment by other men — what Susan Griffin has referred to as the male “protection racket.” n111 Moreover, it is difficult for a man, however well-intentioned, to address an unfamiliar woman on the street without evoking some suspicion or fear in her, unless he goes to some lengths to assure her that he — unlike other unfamiliar males — is indeed trustworthy. n112 Thus, the possibility of harassment [*541] complicates casual communication and impedes solidarity among unacquainted men and women. n113
Second, contrary to the folk wisdom that “sticks and stones may break my bones but words will never hurt me,” language is instrumental in the construction of reality; language locates individuals within that reality and thus constructs their gender identities. n114 Women learn to associate their bodies with shame, fear, and humiliation. n115 Women also learn their place in society from language, and they learn that this place is not a public one. The remarks women hear from harassers on the street carry the implicit (and sometimes explicit) message that women do not belong in public, where they draw attention by their mere appearance, but rather in the private sphere, at home. As one woman who experienced street harassment explained:
Home was still the only place women didn’t need an excuse to be. . . . It [the street] was their [men’s] turf, the place where they belonged. Perhaps they hadn’t actually pissed at all the crosswalks like territorial tomcats, but then they didn’t have to. After all, who was going to challenge their domain? n116
Indeed, many analysts conclude that the intent of street harassers is, in fact, to remind women of their gender identity and their place in society. n117 Although it is dangerous to reason from effects to intentions, this hypothesis has explanatory power. In primitive societies, for example, women who obey the accepted rules of behavior are not sexually molested, while those who break the taboos are seen as asking for trouble. n118 Similarly, street harassment in modern cities keeps women in their place, reinforces the private-public split, and maintains a hierarchy of gender in everyday life. One writer describes this function as follows:
The first function of public harassment is to reinforce spatial boundaries that drastically limit women’s “sphere.” It clearly stakes out public space as male space. Women who want to be outside their [*542] homes must do so at their own risk and with the full knowledge that at any time they can be publicly humiliated or “complimented.” Women are at all times subject to public scrutiny. n119
The woman who is its target, of course, cannot know what psychological role harassment is fulfilling for the individual who accosts her; she is left simply with the message it conveys. For this reason, it seems safe to leap, if not from effect to intention, then from effect to social function and to conclude that “[h]arassment is a way of ensuring that women will not feel at ease, that they will remember their role as sexual beings available to men and not consider themselves equal citizens participating in public life.” n120 For those of us who believe in the ideal of equality, such a result is damaging not only to half of the human population, but to society as a whole.
In sum, the continuation and near-general tolerance of street harassment has serious consequences both for women and for society at large. It inflicts the most direct costs upon women, in the form of fear, emotional distress, feelings of disempowerment, and significant limitations upon their liberty, mobility, and hopes for equality. It also increases distrust between men and women and reinforces rigid gender roles, hierarchy, and the confinement of women to the private sphere. Street harassment thus performs a function as a social institution that is antithetical to the acceptance of women into American public life on terms equal to men.
One morning at approximately 9:00 a.m., 
walk to the left set. As soon as he saw me entering a separate set of doors, he did an about face and walked behind me and murmured something. I immediately zigged and went to the doors to the far left.
blackmanleaveusalone 