Consultation outcome

The government’s response to the targeted consultation on whether there should be a criminal offence of public sexual harassment

Updated 8 December 2022

Background

On 21 July 2022 the then Home Secretary launched a targeted consultation on:

• whether or not a specific criminal offence of public sexual harassment should be created;
• if such an offence were to be created, what it should look like; and
• whether the government should take additional non-legislative actions to tackle public sexual harassment (either instead of or in addition to a new criminal offence).

The consultation was a targeted rather than a public one, and was sent to recipients in:

• charities and organisations focused on crimes which disproportionately affect women and girls (including organisations focused on male victims of those crimes);
• victim-focused charities;
• the children’s and schools sectors;
• organisations related to the world of work;
• policing;
• the legal sector;
• local government;
• night-time economy organisations;
• transport organisations; and
• specialist academia.

The consultation closed on 1 September, and we received responses from 25 of the organisations to which the consultation was sent, as well as 285 other responses. This document summarises the responses, in the order of the questions posed in the consultation.

Summary of responses

Q1. How widespread a problem do you think that public sexual harassment is in this country?

Of the 25 invited respondents 22 said that public sexual harassment is a widespread problem in this country, two did not answer the question and one respondent did not know.

From the other responses the majority of the respondents said that public sexual harassment was a widespread problem across the country.

Q2. Do you think that there should be a specific criminal offence of public sexual harassment?

Of the 25 invited respondents 13 said they did think there should be a specific criminal offence of public sexual harassment, eight said they did not think there should be an offence, two said they did not know and two did not answer the question.

From the other responses the majority of the respondents thought there should be a specific criminal offence of public sexual harassment.

Q3. If you do think that there should be a specific offence of public sexual harassment, would this be because (tick all that apply):

The results from the invited respondents are in the table below.

Answer Choice	Response total
It would criminalise behaviour which is not already criminal.	9
It would raise awareness that these behaviours are illegal.	7
It would prevent people engaging in these behaviours.	10
It would encourage more people to report to the police.	11
It would make the law on public sexual harassment clearer to police and others.	12

Other comments made by the invited respondents included that creating an offence would contribute to cultural change and would send a clear message that this behaviour is not acceptable. A few respondents also stated that they consider there to be gaps in the current legislation as they considered that some behaviours such as blocking someone’s movements and sexual propositioning are currently not criminalised. 13 respondents did not answer this question.

From the other responses the majority of the respondents agreed that there should be an offence for all of the reasons listed in the table above.

Q4. If you think that a new law would criminalise behaviours which are not already criminal, please specify which behaviours.

The behaviours that were mentioned the most from the invited respondents included: * sexually suggestive language/gestures/jokes/propositioning (7 respondents) * following someone/slowing down or blocking someone’s path (6 respondents) * catcalling (5 respondents) * staring/leering (5 respondents) * unwanted touching (4 respondents) * taking pictures without consent (3 respondents)

16 respondents did not answer this question.

Similarly, the behaviours which the other respondents most wanted to see criminalised were: catcalling; sexually suggestive language/gestures/jokes/ propositioning; and following someone/slowing down or blocking someone’s path.

Q5. If you do not think that there should be a specific offence of public sexual harassment, would this be because (tick all that apply)?:

The results from the invited respondents are in the table below.

Answer Choice	Response total
There are already offences that address these behaviours.	7
These behaviours should not be criminalised.	1
These behaviours are better managed through non-legislative actions.	3
It would bring other negative results (if so, please specify which ones in the Comments box below).	2

The other negative results included a perception that legislation would: not deter perpetrators, raise unduly women’s expectations of what would be achieved through the criminal justice system, divert attention from prevention measures and lead to the over-policing of people from ethnic minority backgrounds. One respondent considered that such an offence would create a hierarchy of victims (i.e. those who were harassed because of their sex, vs those who were not), linked in part to their view that, although the law and policy documents would be/are phrased sex-neutrally, the law would in practice be applied disproportionately to male perpetrators.

17 invited respondents did not answer the question.

The majority of the other respondents who answered this question considered that there are already offences that address public sexual harassment behaviour.

Q6. Would Option 1 (higher sentencing for behaviour falling within section 4A of the Public Order Act 1986 when done because of the victim’s sex – without a list of example behaviours) be a viable option?

Of the invited respondents, ten considered that it would be a viable option, eight considered that it would not be and one did not know. Six respondents did not answer this question. Three respondents noted issues with the wording, in particular the use of the word ‘sex’: one said that they do not agree that public sexual harassment occurs solely because of someone’s sex, another said using ‘sex’ would exclude transgender women and non-binary people, and another said it would be hard to prove the offence occurred due to the sex of the victim.

The majority of the other respondents said option 1 would be a viable option. Those who said option 1 would not be a viable option noted that this was because it would be hard to prove an intention to cause alarm or distress and that option 1 does not identify specific behaviours in the way that option 2 does.

Q7. Would Option 2 (higher sentencing for behaviour falling within section 4A of the Public Order Act 1986 when done because of the victim’s sex – with a list of example behaviours) be a viable option?

Of the invited respondents, 11 considered that it would be a viable option, six considered that it would not be, and two did not know. Six respondents did not answer this question.

The majority of the other respondents also said that option 2 would be a viable option.

Q8. If you consider that both Option 1 (no list of example behaviours) and Option 2 (list of example behaviours) would be viable models, do you think either option would be more effective?

The results from the invited respondents are in the table below.

Answer Choice	Response total
Yes - Option 1 would be more effective	3
Yes - Option 2 would be more effective	9
No	0
Don’t know	0
N/A – I do not think that either Option 1 or Option 2 would be a viable model.	6

Eight of the nine invited respondents who considered option 2 to be better did so because it contains a list of examples.

Similarly, data from the other respondents showed that the majority of them thought that option 2 would be a more effective model.

Views from the three invited respondents who preferred option 1 varied. For example, one respondent considered that option 2 may only be applied rigidly and lacks flexibility to cover every eventuality and the changing nature of behaviours. Some of the other respondents echoed those points, also noting that option 1 may be less complex to apply in practice.

Q9. Do you think there is a better way to construct a public sexual harassment offence than either Option 1 or Option 2? If you select Yes, please provide details of what such an offence could look like in the Comments box.

Of the invited respondents nine replied that there is a better way, five that there is not, and five that they did not know. Six respondents did not answer this question.

Two of the points made by a number of respondents were that:

1. Sexual harassment (i.e. harassment which is sexual in nature) rather than sex-based harassment (i.e. harassment which is done because the victim is a woman or a man) should be criminalised, as that is the behaviour which is the issue, and not all sexual harassment behaviour is done because of the person’s sex. It was stated that this need not involve a sexual gratification motive; the Sexual Offences Act 2003 has a nature- rather than motivation-based definition of what is ‘sexual’.
2. Options 1 and 2 depend on the ability to prove that the perpetrator’s intention was to harass, alarm or distress the victim. It was stated that such an intention may be hard to prove, as the perpetrator may say that they intended to compliment the victim rather than to harass them. It was stated that dependence upon intention may result in complex legal debates about motives and causation, whereas it is the behaviour itself which matters.

The majority of the other respondents answered ‘don’t know’ to this question. A few respondents said that intention should not have to be proven for someone to be found guilty of the offence and others mentioned that we should adopt the French model of fines.

Q10. Noting that the list of example behaviours in Option 2 is not exhaustive, do you think that it captures the most common types of public sexual harassment behaviour? If you select No, please state in the Comments box which additional ones you would include.

From the invited respondents ten answered that it did capture the most common types of behaviour, seven answered that it did not, and eight did not answer. Those who answered no cited the following behaviours that they would include: catcalling/wolf whistling; sexual advances/suggestive language and gestures; staring or leering; intimidation; following someone, slowing them down or blocking their path; and playing pornography in public.

The majority of the other respondents answered yes to this question. Those who answered no also mentioned that unwanted touching and taking pictures or videos of someone without consent should be added to the list.

Q11. Do you consider that any of the example behaviours in Option 2 should be excluded? If you consider that any of them should be excluded, please state why in the Comments box.

The results from the invited respondents are in the table below. Seven respondents did not answer the question.

Answer Choice	Response total
Following a person	2
Making an obscene or aggressive comment towards a person	0
Making an obscene or offensive gesture towards a person	0
Obstructing a person making a journey	1
Driving or riding a vehicle slowly near to a person making a journey	0
None of them should be excluded	16
Don’t Know	0

The respondents who said that following a person or obstructing a person making a journey should be excluded from option 2 did so because they considered that these should be separate offences and that following a person should fall within stalking legislation.

The majority of the other respondents answered that none of the behaviours included in the table above should be excluded from option 2.

Q12. Do you consider that the maximum sentence included (two years) is the correct one?

11 of the invited respondents answered yes, four answered no, two answered that they did not know and eight respondents did not answer the question. Two respondents mentioned that there should be a higher sentence for repeat offenders. Furthermore, two respondents said that cautions and fines should be used, and two respondents also said that educational workshops should be used in order to change behaviour.

The majority of the other respondents also answered yes to this question.

Q13. Do you have any other comments on Options 1 and 2?

Two of the invited respondents mentioned that more examples and behaviours should be included in the options. 15 respondents did not answer this question.

The other respondents also made the point that it should not be necessary to prove the perpetrator’s intention to harass the victim, as the defence would argue that their behaviour was not intended to cause alarm or distress (but rather, say, to compliment the victim).

Q14. Do you think that introducing a new offence of public sexual harassment would have implications for the resources of the police and the criminal justice?

20 of the invited respondents answered that it would, one did not know and four did not answer the question. Nine respondents mentioned the new offence would increase the workload for the police and criminal justice system and eight respondents said that professionals would require new training. Seven respondents mentioned that the new offence would increase reporting and four respondents noted that there would need to be an increase in resources, including an increase in police officers and police budgets.

The majority of other respondents also answered yes to this question. A few respondents mentioned that a new offence would act as a deterrent and that it could prevent other crimes from taking place.

Q15. Do you think that the non-legislative actions which the government and other statutory authorities have been taking to tackle public sexual harassment – as set out in section 2 of the consultation document – are sufficient?

Three of the invited respondents answered that the government’s actions were sufficient, 18 answered that they were not, one did not know, and three did not answer the question.

The majority of the other respondents answered no to this question.

Q16. If you think that those actions are not sufficient, which additional non-legislative actions do you think that the government and other statutory authorities should take?

The most common themes cited by the invited respondents were:

Theme	Number of respondents
There should be more education in schools on which behaviours are not acceptable.	11
There needs to be better training and resources for professionals, such as teachers, the police and security staff.	9
There should be more education for men, communities and parents.	8
There should be widespread awareness campaigns.	7
Better evidence, research, and data on public sexual harassment are needed.	5
There should be investment in educational interventions such as bystander training, and information on how to report public sexual harassment.	3
Trust in policing must be rebuilt.	2
Personal safety apps should be used.	2

The other respondents echoed these themes, with a few also stating that the number of police officers, and the police presence in certain areas, should be increased.

Q17. In particular, are there any other non-legislative actions which the government should take to tackle public sexual harassment which takes place in the night-time economy?

14 of the invited respondents answered that the government should take additional non-legislative actions, three answered that it should not, two did not know and six did not answer the question.

The most common themes cited were as below:

Theme	Number of respondents
Training for staff in the night-time economy should be available.	8
There should be more investment in education.	5
There should be awareness campaigns.	3
There should be an increased police presence in hotspot areas and increased funding for the police.	2
Public transport needs to be safer.	2
Updates should be made to licencing requirements, for example making all their staff have training.	2
There should be street marshals around clubs and bars.	1

The other respondents echoed these themes, and also mentioned increased street lighting and CCTV.

Government position

We are very grateful to all those who took the time to respond to the consultation.

We have closely considered the responses received, and consider that an offence of public sexual harassment should be introduced. We note the significant majority of respondents in favour of an offence, and the strong support given to some of the possible reasons in favour of one, such as the deterrent effect of a new law and its ability to raise awareness, and its ability to provide clarity to the law and encourage reporting. We also note the other arguments put forward, such as its ability to help drive cultural change.

We also consider that Option 1 should be the model for a new offence. We note that most respondents preferred Option 2 and we have given close consideration to the arguments made. Having considered all the issues, we do not think that a list of behaviours, which is where Option 2 differs to Option 1, is the right course to take. Such behaviours can become prescriptive, can rapidly become out of date as new behaviours emerge, and, although such lists are illustrative only, in practice they can have the effect of ruling out other types of behaviour from being considered.