Not usually a reformist, but I think I'd campaign pretty hard to have the law changed so that women can smash car windows if the person in the car has catcalled and/or threatened them. Now, I know this wouldn't solve the wider problem of misogyny, and I know it would mean relying on the law working properly (!) but I just really think you should be able to do it without concern that there might be legal repercussions. - My friend Jane1 via Facebook yesterday
Catcalling in this context refers to men shouting at women in public. It can be anything from a wolf-whistle to cries of “nice arse!” or “get your tits out love!” right up to overt threats of rape. Whatever form it takes, it’s aggressive, threatening, dehumanising, intimidating and violent. It’s no more of a compliment than a mugger saying he likes your phone before knifing you and snatching it from your hand. Oh yeah, and the number of people I know who’ve been mugged is far smaller than the number who have been sexually assaulted. Irrespective of where you come down on debates about patriarchy and feminism, if you don’t think this is something that needs to be addressed for its own sake, you can’t be adequately described without resorting to unpleasant sexual euphemisms that would be ironic in this context. Oh fuck it, we can reform language another time. If you’re defending catcalling, you’re a cunt.
Catcalling is prevalent. Ask any group of women or read the accounts submitted to the Everyday Sexism project. The current system we have in place isn’t working and something needs to change. Jane’s law isn’t perfect for lots of reasons, but none that don’t effect current or past laws. You can argue about due process and the right to have a case heard, but these have always been considered to be matters that should be proportionate to the aim of the law. The law doesn’t worry too much about them in cases of national security, and this is talking about the mental and physical security of half the population. You can argue about the integrity of someone’s property, but the law has never considered that to be inviolable. Just ask someone whose house has been subject to a police raid. You can argue that it’s discriminatory, but it is redressing a structural discrimination in society.
There is an ironic precedent at common law. Historically husbands have been permitted to administer corporal punishment to their wives, it being considered useful to society for women’s behaviour to be controlled by men.2 This law, which never had a practical justification, decayed as women became increasingly responsible in law for their own actions and consequently subject to the state’s punishments. A remnant of the principle remains however: parents continue to be permitted the defence of reasonable chastisement for common assault against their children.3 This might be theoretically justified as being due to children’s exemption from state jurisdiction but the truth is it is simply more practical for parents to be responsible for punishing children. Much the same could be said of permitting women administering summary chastisement to catcallers.
Smashing the car window of a catcaller is a surprisingly elegant chastisement. Firstly of course, it empowers the woman in what is otherwise a highly disempowering situation. The instantaneousness of the response conveniently avoids internalising negative emotions and it satisfies the lex talionis by returning violence for violence, insecurity for insecurity. It is even arguably merciful, in that it is a violation of property, rather than the person – although doubtless there would be some psychological effects and the risk of collateral damage (although car windows are designed to avoid being too dangerous when shattered). Furthermore though, the catcaller will have to replace their window. Presumably this will be achieved through their insurance company, who will naturally increase their premium and retain a record of what has occurred. Persistent catcallers may even find it impossible to insure their vehicles. Catcalling moves from being a low risk activity to one with both immediate and long-term consequences.
So, how would the law work in legal terms? The ordinary course of action would be to introduce into law a defence to the various crimes the woman would otherwise be committing by smashing a catcaller’s window. This is not entirely satisfactory however. Defences of this sort reverse what is called the ‘golden thread’ of English law – that a person is innocent until proven guilty by the prosecution.4 For example, a prosecutor is under no immediate obligation to prove that an assault was not committed in self-defence. The possibility must be raised and established by the defendant. Women would not be free from the risk of legal action if they were required to prove that they were the victims of a catcaller, and might therefore be discouraged from acting. What is required therefore is to modify the law such that the prosecution must prove in every case of a woman smashing a car window that the complainant was not a catcaller. This would provide some protection against the flagrant abuse of the law, but would not discourage women from acting.
The statute would look something like this:
Reasonable Chastisement of Catcallers Act 2014
s.1. If through breaking or attempting to break a car window, a woman is charged with any of the offences listed under schedule 1 of this Act, to secure a conviction the prosecution must prove beyond reasonable doubt that:
a) That the complainant had not committed any act of harassment against the defendant immediately prior to the alleged offence and
b) That the defendant did not reasonably believe that the complainant had done so
It’s a little odd that this suggestion appears extreme to us. Taking the policing of our society entirely out of public hands and placing it in an official force, and then consigning the punishment of all offences to a formal judicial system is absolutist. It entirely ignores the merits of informal summary justice and does little to mitigate their absence. As a result numerous offences go unpunished and become pervasive. A more moderate system might very well permit a degree of reasonable public chastisement for certain offences.
1Name changed because people are bastards. Edit: apparently she would have preferred "Asparagus" to Jane, which, in fairness, doesn't really suit her.
2Blackstone, W "Commentaries on the Laws of England" 1769 Book 1, Chapter 5
3Children Act 2004 s.58
4Woolmington v Director of Public Prosecutions 1935 AC 462 per Viscount Sankey LC, later codified by Human Rights Act 1998 s.6(2)