Does the ECHR protect against public sexual harassment?
Public sexual harassment (PSH) is an invasion of privacy, without consent, period. In the UK, individuals have the right to respect for a private life, so how can PSH continue to linger in open spaces? To answer this, we must look at the right itself and its relationship with other protections awarded by the same convention: The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights (ECHR).
The UK remains a party to the ECHR, post-Brexit, as the Convention is separate to the EU framework which we left on 31 January 2020. The ECHR is enforced by the European Court of Human Rights (ECtHR), where individuals, groups, or other states can bring a case against a country, once they have exhausted all other judicial processes in their own state. This means that unless we withdraw from the ECHR, the rights and freedoms specific to this treaty must still be guaranteed and/or protected by the government. These include Articles 8 and 10 of the ECHR, which can be discussed in the context of PSH.
Article 8 of the ECHR, to summarise, safeguards the right to respect for private and family life. A pretty broad and open-ended protection, this has been found by the Court to defend physical and psychological integrity and dignity, as well as personal autonomy from violence perpetrated by both public and private individuals. When PSH so frequently restricts liberty and denies equal access to public space, it is undoubtedly within the scope of Article 8. PSH can often constitute a precursor to violence, so that women fear physical harm, permanently excluding women from the public domain so that we will never be able to share such spaces as equal citizens.
What is perhaps the most convincing human rights argument under Article 8, is the notion of dignity. Although not explicitly referred to by the Convention, the Court have reiterated that the very foundations of the ECHR are based on respect for human dignity and freedom. A recent Strasbourg case broadened this protection to include the “physical and psychological integrity of a person”. When PSH so often intrudes (or attempts to intrude) on the victim’s mobility and integrity, mental well-being should also be considered. Other case law by the European Court has found children increasingly vulnerable to Article 8 violations. In this circumstance, the onus falls on the UK to positively protect, or at least, take reasonable steps to prevent violations of integrity where the authorities had, or ought to have had, knowledge of breaches. These measures must prioritise respect for human dignity and safeguard the best interests of the child. This is applicable with regards to public sexual harassment because young girls are commonly affected by this harm, and juvenile males are also guilty of catcalling women.
These young men are among a larger group who choose to publicly harass women, mainly. This cluster of harassers sit alongside others who regularly rely on the freedom of expression and freedom of speech protections to safeguard their right to harass. And this is a valid counterargument to Article 8 infringements, and the freedoms awarded by Article 10 are often balanced with the safeguards for dignity, amongst others. The ECtHR have explained that there is no hierarchal method to order qualified rights (those where interferences subject to various conditions are permitted). As the fight against the societal misogynistic power continues, the end-goal of criminalisation of PSH could amount to an impermissible interference with Article 10 rights.
Many would argue that women’s rights to equality and liberty outweigh their harassers’ rights to free expression, and others present the idea that PSH is outside of the scope of free speech, as they recognise catcalling and other actions as “utterances with very low or non-existent social, literary or artistic value that exist outside of the political, intellectual and ideological discourse of society”. Nevertheless, within the arena of the ECHR, the balancing of free speech and privacy is already in existence, but it is likely that Articles 8 and 10 contend one another in the context of PSH and it is an area of case law which could soon develop.
I’m Isobel and I have just finished my human rights degree, so I am still finding my way around the world of feminism and law. I wrote my dissertation on the criminal and human rights implications of catcalling and other forms of harassment and will continue writing on this subject until the behaviour is eradicated and we are sfe to walk the streets.
Cynthia Bowman, 'Street Harassment and the Informal Ghettoization of Women' (1993) 106(3) Harvard Law Review 517, 535.
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 8
Multiple ECtHR judgments disclose this protection, including Osman v. United Kingdom  ECHR 23452/94, paras 128-130, Bevacqua and S. v. Bulgaria  ECHR 71127/01, para 65, Sandra Janković v. Croatia  ECHR 38478/05, para 45, A v. Croatia  ECHR 55164/08, para 60, Đorđević v. Croatia  ECHR 41526/10, paras 141-143, Söderman v. Sweden  ECHR 5886/08 para 80.
Olatokunbo Olukemi Laniya, ‘Street Smut: Gender, Media, and the Legal Power Dynamics of Street Harassment, or Hey Sexy and Other Verbal Ejaculations’ (2005) 14 Colum J Gender & L 107.
S.W. v. United Kingdom  ECHR 20166/92, para 44. See also: Pretty v. United Kingdom  ECHR 2346/02, para 65, Elberte v. Latvia  ECHR 61243/08, para 142.
Beizaras and Levickas v. Lithuania  ECHR 41288/15, para 109.
European Court of Human Rights, (n 112), para 68.
Osman v. United Kingdom, (n 113) para 116.
Pretty v. the United Kingdom (n 122), para 65, C.A.S. and C.S. v. Romania  ECHR 26692/05, para 82.
See, for example: Sopen B Shah, ‘Open Season: Street Harassment as True Threats’ (2016) 18 U Pa JL & Soc Change 396, see also: Maeve Olney, 'Toward a Socially Responsible Application of the Criminal Law to the Problem of Street Harassment' (2015) 22 Wm. & Mary J. Women & L. 147-148, Bunkosal Chhun, ‘Catcalls: Protected Speech or Fighting Words?’ (2011) 33 T Jefferson Rev 273, 289, Cynthia Bowman, 'Street Harassment and the Informal Ghettoization of Women' (1993) 106(3) Harvard Law Review at 543 and Deborah Thompson, 'The Woman in the Street:" Reclaiming the Public Space from Sexual Harassment' 6 (1993) Yale JoL. & Feminism at 338.