On 15 June 2022, Greg Clark (Conservative) presented the Protection from Sex-based Harassment in Public Bill 2022-23 to Parliament. The Bill has Government support. The Home Office has published Explanatory Notes (PDF) to accompany the Bill.
The Bill’s second reading took place on 9 December 2022. Committee stage took place in a single sitting on 22 February 2023. Commons report stage and third reading are scheduled for 24 March 2023.
This briefing relates to the law in England and Wales.
The nature and prevalence of public sex-based harassment
Public sex-based harassment is generally understood to involve unwelcome and unwanted behaviour directed at a person in a public space, such as on the street, on public transport, in a gym, or at a hospitality venue, because of that person’s sex.
Examples of such behaviour include intrusive or persistent staring or questioning, following someone, sexual or obscene comments, propositions or gestures, flashing or exposing intimate body parts, non-consensual physical contact, and technology-enabled sexual behaviour.
In March 2021 research published by the APPG on UN Women found that 71% of women of all ages in the UK had experienced some form of sexual harassment in a public space. That number rose to 86% among 18-24-year-olds.
In a 2018 report on sexual harassment of women and girls, the Women and Equalities Committee noted that public sex-based harassment “reduces women and girls’ freedom to enjoy public life, and can negatively affect feelings of safety, bodily autonomy and mental health”.
The Government’s position
In July 2021, the Government published its Tackling violence against women and girls strategy. The strategy said there were several existing criminal offences that public sex-based harassment could fall under, including offences under the Protection from Harassment Act 1997, the Public Order Act 1986 and the Sexual Offences Act 2003.
However, the strategy said the Government was committed to ensuring “not only that the laws are there, but that they work in practice”. The Government would therefore be “looking carefully at where there may be gaps in existing law and how a specific offence for public sexual harassment could address those”.
The strategy also set out several non-legislative actions to deal with public sex-based harassment, including a national communications campaign and plans for revised police guidance and prosecution guidance on using existing offences.
Calls for change
Parliamentarians and women’s rights groups have remained concerned that the existing law is insufficient to deal with public sexual harassment. There have been (unsuccessful) attempts to introduce a specific offence by seeking to amend Government bills, and there have been calls for the Government to legislate.
Plan International UK, a children’s charity with a particular focus on girls’ rights is running the Crime Not Compliment campaign, which calls for the Government to make public sexual harassment a crime. A petition supporting the campaign has received over 65,000 signatures to date.
The campaign group Our Streets Now, started by two sisters after a conversation about experiencing the world as young women, is running a similar campaign. Their petition on the change.org website has received over 463,000 signatures to date.
In a joint briefing Plan International UK and Our Streets Now argue the existing criminal law is “fragmented, incomplete and disjointed” (PDF) and that “many acts of abuse and sexually harmful behaviour fall through the legal cracks”.
The Government’s consultation
On 21 July 2022, the Government launched a consultation on the options for creating a new offence of public sexual harassment.
The Government’s view is that “behaviour amounting to public sexual harassment is already covered by existing criminal offences (subject to the individual circumstances of the case)”. It was not therefore proposing to create a wholly new offence.
The consultation instead set out two possible models that would build on the existing offence in section 4A of the Public Order Act 1986. This section covers the intentional use of threatening, abusive or insulting words or behaviour, or disorderly behaviour, to cause a person harassment, alarm or distress. The two proposed models were:
- Option 1: create a new offence where a person commits an offence under section 4A of the 1986 Act, and does so because of the complainant’s sex or presumed sex.
- Option 2: the same as option 1, but with the addition of an illustrative (not exhaustive) list of types of threatening, abusive, insulting or disorderly behaviours that could be covered by the offence.
Each model would provide for a higher maximum sentence if those offences were committed on the basis of the complainant’s sex.
The consultation closed on 1 September 2022.
The Government published the consultation outcome on 8 December 2022. The Government said it had concluded that an offence of public sexual harassment should be introduced, and that it would be pursuing Option 1 despite most respondents preferring Option 2. The Government considered that including a list of behaviours was not “the right course to take” as such behaviours could become prescriptive, could rapidly become out of date, and could have the effect of ruling out other types of behaviour from being considered.
The Bill
The Bill would introduce a new offence causing intentional harassment, alarm or distress to a person in public where the behaviour is done because of that person’s sex. It would do this by implementing Option 1 from the Government’s consultation on the issue.
Clause 1 of the Bill would add a new section 4B to the Public Order Act 1986. Under new section 4B, a person would be guilty of an offence if:
- they commit an offence under section 4A of the 1986 Act (intentional harassment, alarm or distress); and
- they carried out the conduct referred to in section 4A(1) because of the sex (or presumed sex) of the person to whom they intended to cause harassment, alarm or distress.
It would be irrelevant whether the defendant was also motivated by additional factors other than sex/presumed sex, and whether they carried out the conduct for the purposes of sexual gratification.
The section 4B offence would be triable either way, meaning it could be prosecuted in either the magistrates’ court or the Crown court. The maximum penalty in the Crown court would be a two year prison sentence and/or a fine.
The Bill received extensive cross-party support at second reading, although there was some debate on the challenges that could be involved in proving intent.
At committee stage, the following amendments and new clauses were agreed without division:
- an amendment to extend the new section 4B offence to Wales (as introduced it would have only applied to England)
- a new clause and related amendments to make consequential changes to other legislation on football banning orders, the disclosure of criminal records in Scotland, and disqualification from elected office
The Committee also considered an amendment and new clause tabled by Stella Creasy, relating to the requirement for intent. She did not press either to a division after the Minister said she would look at the issue further, but indicated that she expected to return to the issue at report stage.