Street harassment and the informal ghettoization of women

Harvard Law Review

Volumn 106, Issue 3, 1993, Pages 517-580

  Bowman, Cynthia Grant ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 12044250256     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341656     Document Type: Article

References (341)

1. MURIEL DIMEN, SURVIVING SEXUAL CONTRADICTIONS: A STARTLING AND DIFFERENT LOOK AT A DAY IN THE LIFE OF A CONTEMPORARY PROFESSIONAL WOMAN 3-4 (1986).
2. Lin Farley apparently coined the term "sexual harassment" in the mid-1970s. See LlN FARLEY, SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF WOMEN ON THE JOB at xi (1978); see also BARBARA A. GUTEK, SEX AND THE WORKPLACE 5-6 (1985) (describing Farley's work as "[t]he first large-scale, systematic analysis" of sexual harassment). But see CATHARINK A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 250 n. 13 (1979) (stating that Working Women United Institute was "the first to use these words as anything approaching a term of art").
3. Lin Farley apparently coined the term "sexual harassment" in the mid-1970s. See LlN FARLEY, SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF WOMEN ON THE JOB at xi (1978); see also BARBARA A. GUTEK, SEX AND THE WORKPLACE 5-6 (1985) (describing Farley's work as "[t]he first large-scale, systematic analysis" of sexual harassment). But see CATHARINK A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 250 n. 13 (1979) (stating that Working Women United Institute was "the first to use these words as anything approaching a term of art").
4. Lin Farley apparently coined the term "sexual harassment" in the mid-1970s. See LlN FARLEY, SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF WOMEN ON THE JOB at xi (1978); see also BARBARA A. GUTEK, SEX AND THE WORKPLACE 5-6 (1985) (describing Farley's work as "[t]he first large-scale, systematic analysis" of sexual harassment). But see CATHARINK A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 250 n. 13 (1979) (stating that Working Women United Institute was "the first to use these words as anything approaching a term of art").
5. 42 U.S.C. §§ 2000e to 2000e-17 (1988). Sexual harassment has been defined as: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature [that] (1) . . . is made either explicitly or implicitly a term or condition of an individual's employment, (2) . . . is used as the basis for employment decisions affecting such individual, or (3) . . . has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. 29 C.F.R. § 1604.11(3) (1991); see Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-65 (1986).
6. During the past decade, employer concerns about potential third-party liability for sexual harassment claims against their agents have led to a great deal of literature, publicity, and internal education about this issue. See, e.g., Cheris Kramarae, Harassment and Everyday Life, in WOMEN MAKING MEANING: NEW FEMINIST DIRECTIONS IN COMMUNICATIONS RESEARCH 100 (Lana Rakow ed., 1992). Possibly as a result of this attention, both men and women are now more likely to "know it when they see it." See, e.g., Sexual Harassment in Your Office: The Working Women Survey, WORKING WOMEN, Feb. 1992, at 14, 14-16. The televised confirmation hearings of Supreme Court Justice Clarence Thomas in 1991, which focussed for four widely-viewed days on the testimony of his former employee, law professor Anita Hill, that Thomas harassed her in the workplace, appear to have publicized the legal concept of sexual harassment to a much wider audience as well.
7. During the past decade, employer concerns about potential third-party liability for sexual harassment claims against their agents have led to a great deal of literature, publicity, and internal education about this issue. See, e.g., Cheris Kramarae, Harassment and Everyday Life, in WOMEN MAKING MEANING: NEW FEMINIST DIRECTIONS IN COMMUNICATIONS RESEARCH 100 (Lana Rakow ed., 1992). Possibly as a result of this attention, both men and women are now more likely to "know it when they see it." See, e.g., Sexual Harassment in Your Office: The Working Women Survey, WORKING WOMEN, Feb. 1992, at 14, 14-16. The televised confirmation hearings of Supreme Court Justice Clarence Thomas in 1991, which focussed for four widely-viewed days on the testimony of his former employee, law professor Anita Hill, that Thomas harassed her in the workplace, appear to have publicized the legal concept of sexual harassment to a much wider audience as well.
8. MACKINNON, supra note 2, at 57.
9. For a more detailed definition and description of the types of conduct involved, see pp. 523-24 below.
10. I have chosen "street harassment" over "street remarks," "sexual harassment in public places," or other possibilities for a number of reasons: first, to tie the phenomenon to conduct that is now punishable as harassment in the workplace; second, to emphasize the conduct component over the speech component for First Amendment purposes; and third, to emphasize that this conduct is not essentially sexual in nature as much as it is motivated by, and instrumental to, male power and hierarchy. Although the street is in fact one very common venue, I use the word "street" here simply as an abbreviation for any public place; this type of harassment takes place in many other venues, such as buses, trains, taxis, bus stations, and the like. For a discussion of terminology referring to street harassment, see Elizabeth A. Kissling, Street Harassment: The Language of Sexual Terrorism, 2 DISCOURSE & Soc'y 451, 456-57 (1991).
11. Delores Hayden, professor of architecture and urban planning at UCLA, has identified this lack of perception as one of the damaging effects of the differential access of men and women to public space: "Sometimes men do not really understand the difficulties that face employed women who are traversing the city alone because when women are with men, they are much more likely to be free from verbal harassment on the streets and to be free from gratuitous attacks. When they are alone, in fact, there is a tremendous amount of hostility that just comes off the sidewalks of the city." Cheris Kramarae, Speech Crimes Which the Law Cannot Reach, or Compliments and Other Insulting Behavior, in PROCEEDINGS OF THE FIRST BERKELEY WOMEN AND LANGUAGE CONFERENCE 84, 93 (Sue Bremner, Noelle Caskey & Birch Moonwomon eds., 1985) (quoting Delores Hayden).
12. Robin West suggests that the law does not recognize gender-specific injuries like street harassment because the legal culture fails to understand the different quality of women's subjective, hedonic lives in general, not simply because the legal culture does not perceive these injuries or views them as unimportant. See Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 3 WIS. WOMEN'S L.J. 81, 83-85 (1987).
13. offer this as a modest example of what Mari Matsuda calls "outsider jurisprudence," a methodology that is "grounded in the particulars of [the] social reality and experience" of non-dominant groups and that attempts to "know history from the bottom." Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2323-26 (1989).
14. JOHN LOCKE, The Second Treatise of Government, in THE SECOND TREATISE Of GOVERNMENT AND A LETTER CONCERNING TOLERATION 3, ch. VI, § 57, at 29 (J.W. Gough ed., corrected & rev. ed. 1956) (3d ed. 1698); see also MONTESQUIEU, THE SPIRIT OF THE LAWS pt. 2, bk. 11, ch. 6, at 157 (Anne M. Cohler, Basia C. Miller & Harold S. Stone trans. & eds., 1989) (1748) ("Political liberty in a citizen is that tranquillity of spirit which comes from the opinion each one has of his security . . . ."); id. pt. 2, bk. 12, ch. 2, at 188 ("Political liberty consists in security or, at least, in the opinion that one has of one's security.").
15. JOHN LOCKE, The Second Treatise of Government, in THE SECOND TREATISE Of GOVERNMENT AND A LETTER CONCERNING TOLERATION 3, ch. VI, § 57, at 29 (J.W. Gough ed., corrected & rev. ed. 1956) (3d ed. 1698); see also MONTESQUIEU, THE SPIRIT OF THE LAWS pt. 2, bk. 11, ch. 6, at 157 (Anne M. Cohler, Basia C. Miller & Harold S. Stone trans. & eds., 1989) (1748) ("Political liberty in a citizen is that tranquillity of spirit which comes from the opinion each one has of his security . . . ."); id. pt. 2, bk. 12, ch. 2, at 188 ("Political liberty consists in security or, at least, in the opinion that one has of one's security.").
16. See infra pp. 539, 541-42.
17. Benard and Schlaffer preface their report on harassment with a particularly apt quotation from Hegel: "It is a violation of my natural external freedom, not to be able to go where I please. . . . My personality is wounded by such experiences, because my most immediate identity rests in my body." Cheryl Benard & Edit Schlaffer, The Man in the Street: Why He Harasses, in FEMINIST FRAMEWORKS: ALTERNATIVE THEORETICAL ACCOUNTS OF THE RELATIONS BETWEEN WOMEN AND MEN 70, 70 (Alison M. Jaggar & Paula S. Rothenberg eds., 2d ed. 1984) (quoting G.W.F. HEGEL, TEXTE ZUR PHILOSOPHISCHEN PROPAEDEUTIK (1840)).
18. Benard and Schlaffer preface their report on harassment with a particularly apt quotation from Hegel: "It is a violation of my natural external freedom, not to be able to go where I please. . . . My personality is wounded by such experiences, because my most immediate identity rests in my body." Cheryl Benard & Edit Schlaffer, The Man in the Street: Why He Harasses, in FEMINIST FRAMEWORKS: ALTERNATIVE THEORETICAL ACCOUNTS OF THE RELATIONS BETWEEN WOMEN AND MEN 70, 70 (Alison M. Jaggar & Paula S. Rothenberg eds., 2d ed. 1984) (quoting G.W.F. HEGEL, TEXTE ZUR PHILOSOPHISCHEN PROPAEDEUTIK (1840)).
19. According to Aristotle, the inability to share in the life of the polis indicates that an individual is something less than human. ARISTOTLE, POLITICS bk. 1, ch. 2, § 14 (Ernest Barker trans., 1962) ("The man who is isolated - who is unable to share in the benefits of political association or has no need to share because he is already self-sufficient - is no part of the polis, and must therefore be either a beast or a god.") The importance of access to the public sphere is also an important theme in modern liberal thought. See, e.g., HANNAH ARENDT, ON REVOLUTION 115-27 (1963) [hereinafter ARENDT, ON REVOLUTION]. Arendt described the virtue of political life as follows: "the joy and the gratification that arise out of being in company with our peers, out of acting together and appearing in public, out of inserting ourselves into the world by word and deed, thus acquiring and sustaining our personal identity and beginning something entirely new." HANNAH ARENDT, BETWEEN PAST AND FUTURE 263 (Penguin Books 1977) (1961).
20. According to Aristotle, the inability to share in the life of the polis indicates that an individual is something less than human. ARISTOTLE, POLITICS bk. 1, ch. 2, § 14 (Ernest Barker trans., 1962) ("The man who is isolated - who is unable to share in the benefits of political association or has no need to share because he is already self-sufficient - is no part of the polis, and must therefore be either a beast or a god.") The importance of access to the public sphere is also an important theme in modern liberal thought. See, e.g., HANNAH ARENDT, ON REVOLUTION 115-27 (1963) [hereinafter ARENDT, ON REVOLUTION]. Arendt described the virtue of political life as follows: "the joy and the gratification that arise out of being in company with our peers, out of acting together and appearing in public, out of inserting ourselves into the world by word and deed, thus acquiring and sustaining our personal identity and beginning something entirely new." HANNAH ARENDT, BETWEEN PAST AND FUTURE 263 (Penguin Books 1977) (1961).
21. According to Aristotle, the inability to share in the life of the polis indicates that an individual is something less than human. ARISTOTLE, POLITICS bk. 1, ch. 2, § 14 (Ernest Barker trans., 1962) ("The man who is isolated - who is unable to share in the benefits of political association or has no need to share because he is already self-sufficient - is no part of the polis, and must therefore be either a beast or a god.") The importance of access to the public sphere is also an important theme in modern liberal thought. See, e.g., HANNAH ARENDT, ON REVOLUTION 115-27 (1963) [hereinafter ARENDT, ON REVOLUTION]. Arendt described the virtue of political life as follows: "the joy and the gratification that arise out of being in company with our peers, out of acting together and appearing in public, out of inserting ourselves into the world by word and deed, thus acquiring and sustaining our personal identity and beginning something entirely new." HANNAH ARENDT, BETWEEN PAST AND FUTURE 263 (Penguin Books 1977) (1961).
22. According to Aristotle, the inability to share in the life of the polis indicates that an individual is something less than human. ARISTOTLE, POLITICS bk. 1, ch. 2, § 14 (Ernest Barker trans., 1962) ("The man who is isolated - who is unable to share in the benefits of political association or has no need to share because he is already self-sufficient - is no part of the polis, and must therefore be either a beast or a god.") The importance of access to the public sphere is also an important theme in modern liberal thought. See, e.g., HANNAH ARENDT, ON REVOLUTION 115-27 (1963) [hereinafter ARENDT, ON REVOLUTION]. Arendt described the virtue of political life as follows: "the joy and the gratification that arise out of being in company with our peers, out of acting together and appearing in public, out of inserting ourselves into the world by word and deed, thus acquiring and sustaining our personal identity and beginning something entirely new." HANNAH ARENDT, BETWEEN PAST AND FUTURE 263 (Penguin Books 1977) (1961).
23. 1 WILLIAM BLACKSTONE, COMMENTARIES *130.
24. See ARENDT, ON REVOLUTION, supra note 14, at 24-25. If it is not intuitively obvious why the freedom to move about in public is essential to any meaningful access to the public sphere, a personal anecdote may help. When I was a graduate student in the mid- to late 1960s, I lived in New York City. It was a time of intense political activity in the United States, especially for people my age and at my university (Columbia). I became very interested in the antiwar movement, in the struggle against apartheid in South Africa and the then-Portuguese colonies, and, ultimately, in the incipient women's liberation movement. But I lived in a city where the work day began and ended late; political meetings invariably took place in the evenings, and I felt unsafe as a woman on the streets. Unless I could find a male escort, I was reluctant to go out after 5 or 6 p.m.; thus, I spent most of my years in New York reading in the isolation of my home. When I moved to Chicago in the early 1970s, however, I owned a car and could find parking relatively close to any destination. Although gender relations were no different in Chicago, and the streets were not conspicuously safer for women, I suddenly felt safe and thus free to attend meetings and to become politically involved. These activities proved central to the formation of my perspective on the world and, ultimately, to the identification of my own position, politically, within this nation. For me, therefore, there is an intimate connection between the simple freedom to move about in public and the capacity to participate in the political process. I understand Blackstone's and Arendt's association of the power of loco-motion and access to the political sphere in this way.
25. The reference, of course, is to Hobbes's image of a state of nature prior to the establishment of a sovereign who would prevent the "war of every one against every one" by the use of coercive force. THOMAS HOBBES, LEVIATHAN pt. 1, ch. 13, at 100 (Michael Oakeshott ed., Collier Books 1962) (1651).
26. Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 70 (1988).
27. Robin West, Pornography as a Legal Text, in FOR ADULT USERS ONLY: THE DILEMMA OF VIOLENT PORNOGRAPHY 108, in (Susan Gubar & Joan Hoff eds., 1989); cf. West, supra note 9, at 106-08 (describing the fear associated with street harassment and the consequent "giving away for visual consumption [women's] sexual appearance").
28. See Carol B. Gardner, Passing By: Street Remarks, Address Rights, and the Urban Female, 50 SOC. INQUIRY 328 (1980).
29. See Benard & Schlaffer, supra note 13, at 70-72 (describing the authors' study, which was published only in German).
30. See, e.g., CHERIS KRAMARAE, WOMEN AND MEN SPEAKING (1981); Elizabeth A. Kissling & Cheris Kramarae, Stranger Compliments: The Interpretation of Street Remarks, 14 WOMEN'S STUDIES IN COMMUNICATION 75 (1991); Kissling, supra note 7; Kramarae, supra note 4; Kramarae, supra note 8; Elizabeth Kissling, Interpreting Street Remarks (Oct. 13, 1986) (unpublished manuscript, on file at the Harvard Law School Library).
31. See, e.g., CHERIS KRAMARAE, WOMEN AND MEN SPEAKING (1981); Elizabeth A. Kissling & Cheris Kramarae, Stranger Compliments: The Interpretation of Street Remarks, 14 WOMEN'S STUDIES IN COMMUNICATION 75 (1991); Kissling, supra note 7; Kramarae, supra note 4; Kramarae, supra note 8; Elizabeth Kissling, Interpreting Street Remarks (Oct. 13, 1986) (unpublished manuscript, on file at the Harvard Law School Library).
32. See, e.g., CHERIS KRAMARAE, WOMEN AND MEN SPEAKING (1981); Elizabeth A. Kissling & Cheris Kramarae, Stranger Compliments: The Interpretation of Street Remarks, 14 WOMEN'S STUDIES IN COMMUNICATION 75 (1991); Kissling, supra note 7; Kramarae, supra note 4; Kramarae, supra note 8; Elizabeth Kissling, Interpreting Street Remarks (Oct. 13, 1986) (unpublished manuscript, on file at the Harvard Law School Library).
33. Catharine MacKinnon notes that "[sjcholars who look down upon such popular journalistic forays into policy research (especially by 'women's magazines') should ask themselves why Redbook noticed sexual harassment before they did." MACKINNON, supra note 2, at 248 n.1.
34. I have chosen to use the word "target" rather than "victim" both to avoid the perennial image of woman as victim and also to reflect the military, hunting, and sporting imagery in male literature See, e.g., Gardner, supra note 20, at 354 n.18 (describing sporting and recreational images of street harassment in literature written by men). "Target" was also graphically used by one of the women who told her story: "Gradually, I began to understand that the streets were a battle zone, and each woman was a target." Gwenda Blair, Street Hassling: Putting Up with Put Downs, MADEMOISELLE, July 1984, at 118, 119.
35. In their study of entries in a computer file commenting on street harassment, Kissling and Kramarae concluded that there was remarkable agreement about what constituted street remakers. Women identified as part of the same phenomenon the expressions "'Hey, pretty,' 'Hey, whore,' 'What ya doin' tonight?' 'Look at them legs,' 'Wanna fuck?' 'Give me a smile,' and a pinch or rub." Kissling & Kramarae, supra note 22, at 78.
36. Id. at 75-76; see also Gardner, supra note 20, at 333 (describing the evaluative nature of remarks men make about women on the street).
37. See, e.g., Carol Dana, Talking Back to Street Harassers, WASH. POST, Aug. 19, 1986, at C5.
38. See Branda v. Sanford, 637 P.2d 1223, 1224 (Nev. 1981) (The court's transcription reads: "'f - k - g - bitch', 'f - k - g c - t.'").
39. Blair, supra note 24, at 119.
40. Andrea Kannapell, She Could Have Been Me: 28 and White, VILLAGE VOICE, May 9, 1989, at 37.
41. The harassment of gay men on the street - "gay bashing" - grounded as it is in homophobia, should be the subject of a separate discussion.
42. Erving Goffman describes "public places" as "any regions in a community freely accessible to members of that community." ERVING GOFFMAN, BEHAVIOR IN PUBLIC PLACES 9 (1963).
43. "Public discourse" has been defined by Robert Post as "the communicative processes necessary for the formation of public opinion, whether or not that opinion is directed to ward specific government personnel, decisions, or policies." Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 WM. & MARY L. REV. 267, 288 (1991). Post distinguishes between public discourse and group-based insults directed at individuals outside the context of a political discussion or debate. See id. at 302; see also Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 HARV. L. REV. 601, 667 (1990) (explaining that the Court has endeavored to define public discourse by distinguishing matters of public and purely private concern).
44. "Public discourse" has been defined by Robert Post as "the communicative processes necessary for the formation of public opinion, whether or not that opinion is directed to ward specific government personnel, decisions, or policies." Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 WM. & MARY L. REV. 267, 288 (1991). Post distinguishes between public discourse and group-based insults directed at individuals outside the context of a political discussion or debate. See id. at 302; see also Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 HARV. L. REV. 601, 667 (1990) (explaining that the Court has endeavored to define public discourse by distinguishing matters of public and purely private concern).
45. As Elizabeth Kissling points out, it is unclear who is the addressee of street remarks: the woman, male comrades, passers-by, or some combination of the three. Kissling, supra note 22, at 13.
46. Micaela di Leonardo, Political Economy of Street Harassment, AEGIS, Summer 1981, at 51, 51-52. Two British authors suggest a much broader definition of harassment, as both unwanted sexual advances and any unsought intrusions by men "into women's feelings, thoughts, behaviours, space, time, energies and bodies." SUE WISE & LIZ STANLEY, GEORGIE PORGIE: SEXUAL HARASSMENT IN EVERYDAY LIFE 71 (1987).
47. Micaela di Leonardo, Political Economy of Street Harassment, AEGIS, Summer 1981, at 51, 51-52. Two British authors suggest a much broader definition of harassment, as both unwanted sexual advances and any unsought intrusions by men "into women's feelings, thoughts, behaviours, space, time, energies and bodies." SUE WISE & LIZ STANLEY, GEORGIE PORGIE: SEXUAL HARASSMENT IN EVERYDAY LIFE 71 (1987).
48. See infra pp. 575-76.
49. Blair, supra note 24, at 119.
50. Mary K. Blakely, True or False: "All Men Like to Girl-Watch, and Girls Don't Mind It", VOGUE, Jan. 1982, at 56, 58.
51. Cf. Kissling, supra note 22, at 9-10 (pointing to the example of a woman who voices her objection and is met with hostility).
52. JOYCE CAROL OATES, DO WITH ME WHAT YOU WILL 146-47 (1973), quoted in Gardner, supra note 20, at 328.
53. See Gardner, supra note 20, at 328-34.
54. See id. at 329.
55. GOFFMAN, supra note 32, at 86 (quoting Ralph K. White, Beatrice A. Wright & Tamara Dembo, Studies in Adjustment to Visible Injuries: Evaluation of Curiosity by the Injured, 43 J. ABNORMAL & SOC. PSYCHOL. 13, 22 (1948)).
56. See Gardner, supra note 20, at 331-33.
57. See id. at 333.
58. There is some indication that women are subjected to harassment less frequently when they go to places associated with their domestic responsibilities, such as grocery stores, and are either pregnant or accompanied by a child, which is apparently perceived as a sign that they are some man's "property." See infra p. 530. Of course, men who would harass women may also be less likely to be found at these places.
59. Cheris Kramarae located one poignant plea in an 1898 letter to a British journal: A matter of great importance to all women, and one which I have never known to be publicly discussed, is the grave annoyance to which women - and particularly young girls - are subjected, by being followed and spoken to by men when walking through jne streets alone. The men do not necessarily belong to the class of tramps and loafers, out, on the contrary, are often well dressed and seemingly respectable. . . . It is sad to think that even at the present day a woman cannot go out and return to her home without the fear of being molested. But since the innate chivalry which one pre-supposes in every man has not hitherto sufficed to secure unprotected women from impertinent vexation of the kind described, it seems to me highly necessary to discuss the subject trom all sides, and to find if possible both a preventative and a remedy for the evil. Womanhood, Dec. 1898, quoted in Kramarae, supra note 4, at 112.
60. Craker v. Chicago & N.W. Ry., 36 Wis. 657, 659 (1875). The conductor was convicted of assault. See id. at 674. The plaintiff's suit for damages against the railroad also succeeded. See id. at 679; infra p. 566.
61. See infra note 258.
62. See di Leonardo, supra note 35, at 53.
63. See id. at 53-54.
64. See id. at 54. The flip side of these changes, as di Leonardo points out, is that, for the first time, men are more likely to have competition from women in the workplace and less likley to have the same quality of services in the home because of the absence of a full-time homemaker - or, indeed, to receive the same deference and psychological rewards to which many may have been accustomed before the women's movement. See id. Changes in men's lives may also account, at least in part, for the increase in harassing conduct over this period. Indeed, this increase may be one aspect of the more general "backlash" phenomenon described by Susan Faludi in her 1991 best seller. See SUSAN FALUDI, BACKLASH: THE UNDECLARED WAR AGAINST AMERICAN WOMEN at xviii-xxiii (1991).
65. See di Leonardo, supra note 35, at 54; Cristina Del Sesto, Our Mean Streets: D.C.'s Women Walk Through Verbal Combat Zones, WASH. POST, Mar. 18, 1990, at BI. The problem may be exacerbated by the increased acceptability in common usage of words previously considered obscene.
66. See Del Sesto, supra note 53, at 84 (suggesting that the high rate of unemployment, and thus of men congregated on street corners, may be one cause); see also Courtland Milloy, The Ugly Sounds of Summer, WASH. POST, May 31, 1990, at J1 (recounting one commentator's perception that street harassment in Washington, D.C., is worse than in other major cities in which she has lived).
67. Florence King, The Good Ole Boy: A Southern Belle's Lament, HARPER'S, Apr. 1974, at 78, 79.
68. See, e.g., WISE & STANLEY, supra note 35, at 172; Kissling, supra note 7, at 451-52; Lindsy Van Gelder, The International Language of Street Hassling, Ms., May 1981, at 15, 15-18. Kissling notes that one of the most valuable features of the 1986 women's travel guide Half the Earth is its detailed, country-by-country descriptions of harassment and how the tourist should cope with it. See HALF THE EARTH passim (Miranda Davies, Laura Longrigg, Lucinda Montefiore & Natania Jansz eds., 1986); Kissling, supra note 7, at 452.
69. See, e.g., WISE & STANLEY, supra note 35, at 172; Kissling, supra note 7, at 451-52; Lindsy Van Gelder, The International Language of Street Hassling, Ms., May 1981, at 15, 15-18. Kissling notes that one of the most valuable features of the 1986 women's travel guide Half the Earth is its detailed, country-by-country descriptions of harassment and how the tourist should cope with it. See HALF THE EARTH passim (Miranda Davies, Laura Longrigg, Lucinda Montefiore & Natania Jansz eds., 1986); Kissling, supra note 7, at 452.
70. See, e.g., Kathy Evans, Dress Code Enforces Secondary Role, FIN. TIMES, Apr. 1, 1985, § III, at xvi (comparing treatment of women on streets in Iran under the regimes of the Shah and of his fundamentalist successors).
71. See India to Set Up Women-Only Police Squad, REUTERS, Jan. 3, 1986, available in LEXIS, Nexis Library, Omni File.
72. See di Leonardo, supra note 35, at 55.
73. See KRAMARAE, supra note 22, at 142.
74. See Marie Shear, Free Meat Talks Back, J. COMM., Winter 1976, at 38, 38-39 (describing an interchange in a candy store).
75. Some reviewers said that the audience as a whole cheered at the violence in Thelma and Louise; others either said or implied that the cheers came primarily from the women in the audience. Compare Ruth Walker, Why We Cheered 'Thelma & Louise', CHRISTIAN SCI. MONITOR, July 17, 1991, at 18 ("The crowd in our little cinema off Harvard Square burst into whoops and cheers . . . .") with Charles Bremner, Giving as Bad as They Get, THE TIMES SATURDAY REVIEW, June 29, 1991, at 6 ("Women in the big cities are cheering it in the cinems while men laugh nervously.") and Diane White, The Great Debate over Thelma and Louise, BOSTON GLOBE, June 14, 1991, at 29 ("There were about three times as many women as men in the audience when I saw 'Thelma and Louise.' They cheered when Louise plugged the roadhouse cowboy who was trying to rape Thelma. And when the two characters blew up the rig of a leering, tongue-waggling trucker, they cheered even louder."). One reviewer explained why women might react with such exuberance, despite the violence, making explicit the connection of this response to women's experience of street harassment: "At this point, another wave of cheers swept the audience. Here was a symbolic destruction of not only every lewd truck driver but every construction worker whistling unwanted whistles, every all-purpose masher preventing a woman from enjoying a public place, every dirty-minded boy we had to endure in school." Walker, supra, at 18. I share this understanding, for seeing the movie wes one of the events that inspired me to write this Article.
76. Some reviewers said that the audience as a whole cheered at the violence in Thelma and Louise; others either said or implied that the cheers came primarily from the women in the audience. Compare Ruth Walker, Why We Cheered 'Thelma & Louise', CHRISTIAN SCI. MONITOR, July 17, 1991, at 18 ("The crowd in our little cinema off Harvard Square burst into whoops and cheers . . . .") with Charles Bremner, Giving as Bad as They Get, THE TIMES SATURDAY REVIEW, June 29, 1991, at 6 ("Women in the big cities are cheering it in the cinems while men laugh nervously.") and Diane White, The Great Debate over Thelma and Louise, BOSTON GLOBE, June 14, 1991, at 29 ("There were about three times as many women as men in the audience when I saw 'Thelma and Louise.' They cheered when Louise plugged the roadhouse cowboy who was trying to rape Thelma. And when the two characters blew up the rig of a leering, tongue-waggling trucker, they cheered even louder."). One reviewer explained why women might react with such exuberance, despite the violence, making explicit the connection of this response to women's experience of street harassment: "At this point, another wave of cheers swept the audience. Here was a symbolic destruction of not only every lewd truck driver but every construction worker whistling unwanted whistles, every all-purpose masher preventing a woman from enjoying a public place, every dirty-minded boy we had to endure in school." Walker, supra, at 18. I share this understanding, for seeing the movie wes one of the events that inspired me to write this Article.
77. Some reviewers said that the audience as a whole cheered at the violence in Thelma and Louise; others either said or implied that the cheers came primarily from the women in the audience. Compare Ruth Walker, Why We Cheered 'Thelma & Louise', CHRISTIAN SCI. MONITOR, July 17, 1991, at 18 ("The crowd in our little cinema off Harvard Square burst into whoops and cheers . . . .") with Charles Bremner, Giving as Bad as They Get, THE TIMES SATURDAY REVIEW, June 29, 1991, at 6 ("Women in the big cities are cheering it in the cinems while men laugh nervously.") and Diane White, The Great Debate over Thelma and Louise, BOSTON GLOBE, June 14, 1991, at 29 ("There were about three times as many women as men in the audience when I saw 'Thelma and Louise.' They cheered when Louise plugged the roadhouse cowboy who was trying to rape Thelma. And when the two characters blew up the rig of a leering, tongue-waggling trucker, they cheered even louder."). One reviewer explained why women might react with such exuberance, despite the violence, making explicit the connection of this response to women's experience of street harassment: "At this point, another wave of cheers swept the audience. Here was a symbolic destruction of not only every lewd truck driver but every construction worker whistling unwanted whistles, every all-purpose masher preventing a woman from enjoying a public place, every dirty-minded boy we had to endure in school." Walker, supra, at 18. I share this understanding, for seeing the movie wes one of the events that inspired me to write this Article.
78. See Plummer v. City of Columbus, 414 U.S. 2, 3-4 (1973) (recounting how a taxi drive addressed a female fare with vulgar, suggestive, and sexually-oriented statements); Lamar v. Banks, 684 F. 2d 714, 715 (11th Cir. 1982) (describing an event in which a taxi driver drove a college student to an unfamiliar area, where he told her, "I bet your honey doesn't have the nine and one-half inch penis I have."); Robert Davis, Rude Taxi Drivers Find City Is Indeed Talking to Them, CHI. TRIB., Sept. 18, 1991, § 2, at 1 (reporting that a taxi driver dropped his pants during a dispute with a female passenger); see also People v. Dick, 505 N.E.2d 1157, 1159 (III. App. Ct. 1987) (reporting that a passenger was raped by a taxi driver).
79. Benard & Schlaffer, supra note 13, at 72.
80. For example, the women in the movie Thelma and Louise, attempting to obtain an apology from their harasser before blowing up his truck, asked him whether he would want someone to talk like that to his sister. This was also the touchstone upon which the judge in the 1875 case against the Chicago and Northwestern Railway measured the appropriate damages for the schoolteacher assaulted by the Railway's conductor. The judge asked rhetorically, "Who can be found to say that such an amount would be in excess of compensation to his own or his neighbor's wife or sister or daughter?" Craker v. Chicago & N.W. Ry., 36 Wis. 657, 679 (1875).
81. See Kissling, supra note 22, at 5. Studies of workplace harassment now suggest that men who work in offices get - and take advantage of - many other chances to sexually harass women. See, e.g., GUTEK, supra note 2, at 42-60; MACKINNON, supra note 2, at 25-47.
82. See Benard & Schlaffer, supra note 13, at 72; see also Gardner, supra note 20, at 333 ("[Street] remarks are delivered by all classes and races of men, singly and in groups.").
83. West, supra note 9, at 106.
84. See GARY D. COMSTOCK, VIOLENCE AGAINST LESBIANS AND GAY MEN 141-44 (1991) (summarizing the author's survey of reported experiences of anti-gay and anti-lesbian verbal harassment); RUTHANN ROBSON, LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF LAW 145-56 (1992) (discussing violence against lesbians).
85. See GARY D. COMSTOCK, VIOLENCE AGAINST LESBIANS AND GAY MEN 141-44 (1991) (summarizing the author's survey of reported experiences of anti-gay and anti-lesbian verbal harassment); RUTHANN ROBSON, LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF LAW 145-56 (1992) (discussing violence against lesbians).
86. See Gardner, supra note 20, at 339-40; Kissling, supra note 22, at 11; Kramarae, supra note 8, at 91-92.
87. Cf. Orlando Patterson, Race, Gender and Liberal Fallacies, N.Y. TIMES, Oct. 20, 1991, § 4, at 15 (suggesting that Supreme Court nominee Clarence Thomas had merely engaged Anita Hill in a verbal style with which both were familiar as African-Americans of similar background, but that the congressional hearings thrust his remarks into a context in which they were evaluated, inappropriately, according to white, middle-class, neo-Puritan (feminist) values).
88. See Gardner, supra note 20, at 338-40.
89. See di Leonardo, supra note 35, at 52.
90. See Kissling, supra note 22, at 12.
91. See Milloy, supra note 54, at J1.
92. Emily Bernard, Black Women and the Backwash of Harassment, WASH. POST, Aug. 12, 1990, at C8. A 29-year-old Mexican-American woman living in Washington also described the situation as a "'nightmare'" and reported that "'I,m afraid everyday that a verbal assault is going to turn into a physical one.'" Del Sesto, supra note 53, at B4.
93. See, e.g., ANGELA Y. DAVIS, WOMEN, RACE & CLASS 23-25 (1981); PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 43-46 (1984). For a description of the differences in the way Black women and white women May experience rape as well, see Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 43 STAN. L. REV. 581, 598-601 (1990); and Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 157-60.
94. See, e.g., ANGELA Y. DAVIS, WOMEN, RACE & CLASS 23-25 (1981); PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 43-46 (1984). For a description of the differences in the way Black women and white women May experience rape as well, see Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 43 STAN. L. REV. 581, 598-601 (1990); and Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 157-60.
95. See, e.g., ANGELA Y. DAVIS, WOMEN, RACE & CLASS 23-25 (1981); PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 43-46 (1984). For a description of the differences in the way Black women and white women May experience rape as well, see Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 43 STAN. L. REV. 581, 598-601 (1990); and Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 157-60.
96. See, e.g., ANGELA Y. DAVIS, WOMEN, RACE & CLASS 23-25 (1981); PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 43-46 (1984). For a description of the differences in the way Black women and white women May experience rape as well, see Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 43 STAN. L. REV. 581, 598-601 (1990); and Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 157-60.
97. LORRAINE HANSBERRY, TO BE YOUNG, GIFTED AND BLACK 77 (1969).
98. See BELL HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM 58-59 (1981).
99. Milloy, supra note 54, at J1.
100. One must note that there are women who report that they like being the object of sexual attention from strangers on the street. See, e.g., Letters from Readers, GLAMOUR, Nov. 1992, at 44 ("Being whistled at, called 'baby' and generally admired is fun and harmless."). their accounts, however, do not describe interactions of the brutal and openly degrading types discussed above, but rather the experience of being the target of wolf-whistles, evaluative commentary of a positive sort, and remarks of the "Hi, baby!" variety. Although most women find this attention burdensome, some profess to find it complimentary. Some authors suggest that this flattered reaction is a form of false consciousness created by the repeatedly disempowering experience of street harassment. See, e.g., West, supra note 9, at 85. At any rate, the fact that some women are greatly harmed by harassment on the street, see infra pp 535-40, surely outweighs the pleasure others may profess to feel from this attention.
101. See, e.g., William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 MICH. L. REV. 874, 887 (1939) ("The rough edges of our society still are in need of a great deal of filing down, and the plaintiff in the meantime must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind."). Prosser's comments were incorporated into the Restatement (Second) of Torts. See RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965). As Charles Lawrence points out, however, subordinated groups are frequently called upon to pay this price on behalf of the society as a whole. See Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 456, 472-73.
102. See, e.g., William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 MICH. L. REV. 874, 887 (1939) ("The rough edges of our society still are in need of a great deal of filing down, and the plaintiff in the meantime must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind."). Prosser's comments were incorporated into the Restatement (Second) of Torts. See RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965). As Charles Lawrence points out, however, subordinated groups are frequently called upon to pay this price on behalf of the society as a whole. See Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 456, 472-73.
103. See, e.g., William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 MICH. L. REV. 874, 887 (1939) ("The rough edges of our society still are in need of a great deal of filing down, and the plaintiff in the meantime must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind."). Prosser's comments were incorporated into the Restatement (Second) of Torts. See RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965). As Charles Lawrence points out, however, subordinated groups are frequently called upon to pay this price on behalf of the society as a whole. See Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 456, 472-73.
104. See Gardner, supra note 20, at 352 nn.8 & 10.
105. Kissling & Kramarae, supra note 22, at 83 (quoting a participant in a discussion of street remarks that was conducted on a computer system). Similarly, a woman jogger reported: For more than two years, I have run six miles every afternoon on the riverside paths of Minneapolis-St. Paul. There has rarely been a time, even in these well-behaved cities, when men have not shouted obscenities at me. I have been honked at, whistled at and had beer cans thrown at me. . . . On one recent run I was accosted by an exhibitionist. My reaction wasn't shock, but rang that once again someone was shattering my peaceful hour alone outdoors .... Karin Winegar, What I Want Is an Hour on the Jogging Path Without Men's Catcalls. Is that Too Much to Ask?, GLAMOUR, June 1980, at 186, 186.
106. See Kissling & Kramarae, supra note 22, at 84-85.
107. Recent statistics from a government-funded study indicate that one of every eight adult women in America has been raped at least once. See Study: Rapes Far Underestimated, CHI. TRIB., Apr. 24, 1992, § 1, at 3. Earlier Department of Justice statistics indicated that as least 11% of women interviewed reported that they had been raped or sexually assaulted at time during their lives. Women who live in large cities, however, have a one-in-five to one-in-eight chance of being raped during their lifetimes, and perhaps even a one-in-three chance in certain areas. See MARGARET T. GORDON & STEPHANIE RIGER, THE FEMALE FEAR 36 (1989). Other studies show that as many as 44% of women were victims of rape or attempted rape at some time in their lives. See Diana E.H. Russell & Nancy Howell, The Prevalence of Rape in the United States Revisited, 8 SIGNS 688, 690 (1983).
108. Recent statistics from a government-funded study indicate that one of every eight adult women in America has been raped at least once. See Study: Rapes Far Underestimated, CHI. TRIB., Apr. 24, 1992, § 1, at 3. Earlier Department of Justice statistics indicated that as least 11% of women interviewed reported that they had been raped or sexually assaulted at time during their lives. Women who live in large cities, however, have a one-in-five to one-in-eight chance of being raped during their lifetimes, and perhaps even a one-in-three chance in certain areas. See MARGARET T. GORDON & STEPHANIE RIGER, THE FEMALE FEAR 36 (1989). Other studies show that as many as 44% of women were victims of rape or attempted rape at some time in their lives. See Diana E.H. Russell & Nancy Howell, The Prevalence of Rape in the United States Revisited, 8 SIGNS 688, 690 (1983).
109. Recent statistics from a government-funded study indicate that one of every eight adult women in America has been raped at least once. See Study: Rapes Far Underestimated, CHI. TRIB., Apr. 24, 1992, § 1, at 3. Earlier Department of Justice statistics indicated that as least 11% of women interviewed reported that they had been raped or sexually assaulted at time during their lives. Women who live in large cities, however, have a one-in-five to one-in-eight chance of being raped during their lifetimes, and perhaps even a one-in-three chance in certain areas. See MARGARET T. GORDON & STEPHANIE RIGER, THE FEMALE FEAR 36 (1989). Other studies show that as many as 44% of women were victims of rape or attempted rape at some time in their lives. See Diana E.H. Russell & Nancy Howell, The Prevalence of Rape in the United States Revisited, 8 SIGNS 688, 690 (1983).
110. See, e.g., Dana, supra note 27, at C5; Del Sesto, supra note 53, at 84.
111. See Dana, supra note 27, at C5; see also JUDITH FEIN, ARE YOU A TARGET?: A GUIDE TO SELF-PROTECTION, PERSONAL SAFETY, AND RAPE PREVENTION 27 (1981) (noting that a rapist, when approaching to test his victim, "may very well threaten to kill her" and "may be hostile, abusive, hateful and threatening").
112. See FEIN, supra note 88, at 27-28.
113. A former rape victim interviewed by Diana Russell stated, for example: "When I first started to live in the city, I would walk by the construction workers having lunch and hear all these horrible comments. I didn't quite know how to deal with it. ... "Encounters on the street are annoying but not, of course, as serious as actual rape. When I feel strong, when I feel together, I am able to handle them. But when I feel a little bit under, and not quite coping with things, these experiences leave me with a very bad feeling." DIANA E.H. RUSSELL, THE POLITICS OF RAPE 168 (1975).
114. The allusion, of course, is to the concept of an "eggshell plaintiff" in tort law - one who is injured far more easily than the tortfeasor might realistically imagine - and to the proposition that the tortfeasor must take his victims as he finds them. See RESTATEMENT (SECOND) OF TORTS § 461 (1965).
115. See, e.g., Vosburg v. Putney, 50 N.W. 403, 403-04 (Wis. 1891) (holding the tortfeasor, a 12-year-old schoolboy, liable for all of the injuries he caused, whether or not foreseeable, resulting from his wrongful act (kicking a classmate in the shin)).
116. See di Leonardo, supra note 35, at 51.
117. See, e.g., Kristin Anderson, Letter to the Editor, USA TODAY, July 19, 1991, at 11A ("I was walking down the street the other day, wearing nothing revealing. This man was flicking his tongue at me and asked me if I tasted as good as I looked. There is nothing you can do about it What if you get someone mad? You don't know who they are, and you might end up raped or killed.").
118. Medea and Thompson believe that women do not respond when harassed because they are "conditioned to be afraid of men under any circumstances and to be afraid of offending them even when there is no possible basis for their fear." ANDRA MEDEA & KATHLEEN THOMPSON, AGAINST RAPE 52 (1974).
119. See Gardner, supra note 20, at 345. Some add sunglasses and a Walkman to become even more inscrutable. See Blair, supra note 24, at 184.
120. See MEDEA & THOMPSON, supra note 95, at 49-55.
121. See PAULINE B. BART & PATRICIA H. O'BRIEN, STOPPING RAPE: SUCCESSFUL SURVIVAL STRATEGIES 42-43 (1985).
122. Sandra L. Bartky, On Psychological Oppression, in PHILOSOPHY AND WOMEN 33, 37 (Sharon Bishop & Marjorie Weinzweig eds., 1979).
123. DIMEN, supra note I, at 10; see also Meredith Tax, Woman and Her Mind: The Stary of Everyday Life, in RADICAL FEMINISM 23, 28-31 (Anne Koedt, Ellen Levine & Anita Rapone eds., 1973) (describing this psychological distress as a form of schizophrenia). Tax describes a woman walking past a construction site attempting to shut out the pain of verbal assaults by splitting her mind from her body so that they can't "get her." See id. at 28; see also Blair, supra note 24, at 184 ("Because he objectified me, I was forced to objectify myself, and it made me feel divided in two.").
124. See, e.g., GUTEK, supra note 2, at 70-71; James E. Gruber & Lars Bjorn, Women's Responses to Sexual Harassment: An Analysis of Sociocultural, Organizational, and Personal Resource Models, 67 SOC. SCI. Q. 814, 817 (1986); David E. Terpstra & Douglas D Baker, A Hierarchy of Sexual Harassment, 121 J. PSYCHOL. 599, 599 (1987).
125. See, e.g., GUTEK, supra note 2, at 70-71; James E. Gruber & Lars Bjorn, Women's Responses to Sexual Harassment: An Analysis of Sociocultural, Organizational, and Personal Resource Models, 67 SOC. SCI. Q. 814, 817 (1986); David E. Terpstra & Douglas D Baker, A Hierarchy of Sexual Harassment, 121 J. PSYCHOL. 599, 599 (1987).
126. Dana, supra note 27, at C5 (quoting Dr. Catherine Bernard).
127. Jennifer Nedelsky points to the connection between the shame women are taught to feel about their bodies and a more general sense of inadequacy. See Jennifer Nedelsky, Inadequacy and Disentitlement: Internal Barriers to Women's Equality 20 (Aug. 1991) (unpublished manuscript, on file at the Harvard Law School Library). Iris Young also speculates that the general lack of confidence that women frequently have about their cognitive and leadership abilities is traceable in part to doubt about their bodies, which is exacerbated by repeated invasions of their personal space. See IRIS M. YOUNG, Throwing Like a Girl: A Phenomenology of Feminine Body Comportment, Motility, and Spatiality, in THROWING LIKE A GIRL AND OTHER ESSAYS IN FEMINIST PHILOSOPHY AND SOCIAL THEORY 141, 155-56 (1990).
128. Jennifer Nedelsky points to the connection between the shame women are taught to feel about their bodies and a more general sense of inadequacy. See Jennifer Nedelsky, Inadequacy and Disentitlement: Internal Barriers to Women's Equality 20 (Aug. 1991) (unpublished manuscript, on file at the Harvard Law School Library). Iris Young also speculates that the general lack of confidence that women frequently have about their cognitive and leadership abilities is traceable in part to doubt about their bodies, which is exacerbated by repeated invasions of their personal space. See IRIS M. YOUNG, Throwing Like a Girl: A Phenomenology of Feminine Body Comportment, Motility, and Spatiality, in THROWING LIKE A GIRL AND OTHER ESSAYS IN FEMINIST PHILOSOPHY AND SOCIAL THEORY 141, 155-56 (1990).
129. See, e.g., di Leonardo, supra note 35, at 51. Restricted movement because of safety concerns is a problem shared by other groups within our society, such as residents of public housing. See, e.g., ALEX KOTLOWITZ, THERE ARE NO CHILDREN HERE 26, 252-53 (1991) (describing how violence in the neighborhood restricts mobility of children and adults even in heir own apartments in Chicago public housing).
130. See Gardner, supra note 20, at 345.
131. 5.
132. Mazey and Lee conclude that the result of harassment is "that streets, sidewalks, and other spaces, where men roam freely, become zones of hostile space for women." MARY E. MAZEY & DAVID R. LEE, HER SPACE, HER PLACE (1983), quoted in Belinda Leach, Ellen Lesiuk & Penny E. Morton, Perceptions of Fear in the Urban Environment, 8 WOMEN & ENV'TS 10, 10 (1986).
133. Mazey and Lee conclude that the result of harassment is "that streets, sidewalks, and other spaces, where men roam freely, become zones of hostile space for women." MARY E. MAZEY & DAVID R. LEE, HER SPACE, HER PLACE (1983), quoted in Belinda Leach, Ellen Lesiuk & Penny E. Morton, Perceptions of Fear in the Urban Environment, 8 WOMEN & ENV'TS 10, 10 (1986).
134. Carole Sheffield, Sexual Terrorism: The Social Control of Women, in ANALYZING GENDER: A HANDBOOK OF SOCIAL SCIENCE RESEARCH 171, 171 (Beth B. Hess & Myra Marx Ferree eds., 1987). Adrienne Rich makes a similar point in relation to women's access to education: The undermining of self, of a woman's sense of her right to occupy space and walk freely in the world, is deeply
135. Carole Sheffield, Sexual Terrorism: The Social Control of Women, in ANALYZING GENDER: A HANDBOOK OF SOCIAL SCIENCE RESEARCH 171, 171 (Beth B. Hess & Myra Marx Ferree eds., 1987). Adrienne Rich makes a similar point in relation to women's access to education: The undermining of self, of a woman's sense of her right to occupy space and walk freely in the world, is deeply relevant to education. The capacity to think independently, to take intellectual risks, to assert ourselves mentally, is inseparable from our physical way of being in the world, our feelings of personal integrity. ADRIENNE RICH, Taking Women Students Seriously, in ON LIES, SECRETS, AND SILENCE 237, 242 (1979). Rich makes this comment in the context of the fear of rape, but the fear of violent assault is part of the fabric that underlies the anxieties aroused in women by harassment. In we individual case, they are thus hard to separate.
136. See Barbara Houston, What's Wrong with Sexual Harassment, ATLANTIS, Spring 1988, at 44, 46.
137. See DIMEN, supra note 1, at 4. Muriel Dimen views street hassling as a characterstic example of this coercive lesson, showing that men have the power to say anything to women, who lack reciprocal power. See id.
138. See Susan Griffin, Rape: The All-American Crime, in WOMEN: A FEMINIST PEHSPECTIVE 24, 30 (Jo Freeman ed., 1975); see also NANCY HENLEY, BODY POLITICS: POWER, SEX, AND NONVERBAL COMMUNICATION 63 (1977) (analogizing the arrangement by which women need male escorts to protect them against attack by men to a criminal "protection racket").
139. See Susan Griffin, Rape: The All-American Crime, in WOMEN: A FEMINIST PEHSPECTIVE 24, 30 (Jo Freeman ed., 1975); see also NANCY HENLEY, BODY POLITICS: POWER, SEX, AND NONVERBAL COMMUNICATION 63 (1977) (analogizing the arrangement by which women need male escorts to protect them against attack by men to a criminal "protection racket").
140. See Brent Staples, Just Walk on By: A Black Man Ponders His Power to Alter Public Space, Ms., Sept. 1986, at 88 (describing incidents in which the author unintentionally frightened people).
141. See GOFFMAN, supra note 32, at 142. Ironically, Goffman makes this point as a throwaway to his consideration of the problem of "pickups" by homosexual males on the streets. The problem created by this, he says, is that it makes other males unsure of themselves and threatens casual solidarity among unacquainted males, thus doing "to the all-male (and to a degree to the all-female) world what has already been done to communication contacts between the sexes." Id.
142. For a good short description of this analysis, based on the work of Jacques Lacan, see KRAMARAE, cited above in note 22, at 64-72.
143. See Nedelsky, supra note 103, at 20; West, supra note 9, at 106-08.
144. Blair, supra note 24, at 118, 184
145. See, Kissling & Kramarae, supra note 22, at 76; Kramarae, supra note 4, at 109.
146. See Margaret Mead, A Proposal: We Need Taboos on Sex at Work, REDBOOK, Apr. 1978, at 31, 31.
147. Pam McAllister, Wolf Whistles and Warnings, 6 HERESIES 37, 37 (1978).
148. Benard & Schlaffer, supra note 13, at 72.
149. See id. at 71. Benard and Schlaffer report that a sure-fire way to stop a harasser is to whip out a questionnaire and inform him that he is part of a research project, but also note that this approach is more than a little time-consuming. See id.
150. See id. Descriptions in literature by men tend to support the sportive or recreational explanation See Gardner, supra note 20, at 354 n.iS (citing JAMES T. FARRELL, STUDS LONIGAN 122-23 (1935); THOMAS PYNCHON, V. 32-34 (1961); and ALAN SILLITOE, THE LONEINESS OF THE LONG-DISTANCE RUNNER 148-49 (1959)).
151. See id. Descriptions in literature by men tend to support the sportive or recreational explanation See Gardner, supra note 20, at 354 n.iS (citing JAMES T. FARRELL, STUDS LONIGAN 122-23 (1935); THOMAS PYNCHON, V. 32-34 (1961); and ALAN SILLITOE, THE LONEINESS OF THE LONG-DISTANCE RUNNER 148-49 (1959)).
152. See id. Descriptions in literature by men tend to support the sportive or recreational explanation See Gardner, supra note 20, at 354 n.iS (citing JAMES T. FARRELL, STUDS LONIGAN 122-23 (1935); THOMAS PYNCHON, V. 32-34 (1961); and ALAN SILLITOE, THE LONEINESS OF THE LONG-DISTANCE RUNNER 148-49 (1959)).
153. See Benard & Schlaffer, supra note 13, at 71. As several authors point out, street remarks, even if positive in tenor, violate important norms of compliment behavior, because they occur in a public place between unacquainted persons and frequently refer to parts of the that are private. See Gardner, supra note 20, at 340-41, 344; Kissling, supra note 22, at 13. Gardner also points out that the parody of a compliment is not a compliment at all. Gardner, supra note 20, at 344.
154. See Benard & Schlaffer, supra note 13, at 71-72.
155. See id. at 71. Gardner posits that harassment allows men to displace anger or hostility toward women onto women whom they do not know and to do so in a low risk situation, because the target is a moving one. See Gardner, supra note 20, at 348. Alternatively, she hypothesizes that the behavior functions as an informal means of socializing men to rejection by women. See id. at 348-49.
156. See supra p. 536.
157. A complete analysis of all the First Amendment issues involved in the regulation of various types of speech and conduct included in street harassment is beyond the scope of this Article By simply sketching, in broad terms, some of the ways in which I believe that regulation of street harassment can withstand scrutiny under the First Amendment, I do not mean to reflect disrespect for the important values embodied in that Amendment, but merely to open up discussion of the conflicting interests and values involved.
158. As Professor Schauer has pointed out, this is true of many other types of speech as well: perjury, extortion, threats, false warranties, and conspiracies to fix prices, to name a few. See Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265, 270-71 (1981). We exclude antitrust law, securities regulations, and contract law from the scrutiny of the First Amendment as a matter of course, "because they have nothing to do with what the concept of free speech is all about." Id. at 274.
159. Accusing a woman of unchastity has traditionally been regarded as actionable without proof of damages under the law of defamation. See W. PAGE KEETON, DAN B. DOBBS, ROBERT E. KEETON & DAVID G. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS § 112, at 792-93 (5th ed. 1984).
160. See infra pp. 558-63.
161. See 29 C.F.R. § 1604.11(a) (1992) (including "verbal . . . conduct of a sexual nature" as one possible form of sexual harassment under Title VII).
162. The captive audience doctrine refers to speech that is forced upon an unwilling listener, thus bringing the listener's right to privacy into conflict with the speaker's right to speech. See, e.g., Marcy Strauss, Sexist Speech in the Workplace, 25 HARV. C.R.-C.L. L. REV. 1, 12-13 (1990). This is, of course, not the only ground upon which Title VII restrictions on verbal sexual harassment have been upheld under the First Amendment. See, e.g., Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1536-37 (M.D. Fla. 1991) (upholding restrictions upon speech (including pornography) in the workplace as permissible time, place, and manner restrictions).
163. Not only is freedom to exit a myth if one is dependent upon wages, but women are likely to stay rather than to leave an abusive situation for other reasons as well. See Martha R. Mahoney, Exit: Power and the Idea of Leaving in Love, Work, and the Confirmation Hearings, 65 S. CAL. L. REV. 1283, 1294-95, 1300-04 (1992).
164. See supra pp. 520-21; infra pp. 541-42.
165. In discussing the captive audience doctrine, Professor Haiman would distinguish between "situations in which the target of a communication is physically free to escape from its continuation and those in which the target is physically captive," but recognizes as one example of "captivity" the situation where a target is "on a bus which he must ride to work." Franklyn S. Haiman, Speech v. Privacy: Privacy: Is There a Right Not to Be Spoken To?, 67 NW. U. L. REV. 153, 194 (1972). Although Haiman's distinction would not work for women who are pedestrians, it the public transportation context - one in which harassment is a considerable problem - and here is no inherent reason why its logic should not be extended to the streets women must traverse on their way to work, school, and other locations necessary to their daily lives.
166. Speech is also regulated and/or prohibited in a variety of other contexts involving harassment. For example, orders of protection entered in domestic violence cases frequently prohibit the defendant from contacting the plaintiff even by telephone, based upon past incidents of harassment or violence (and thus upon a continuing, though implicit, threat of violence). For example, the Illinois Domestic Violence Act of 1986, which authorizes the issuance of orders of protection in cases of domestic violence, includes "repeatedly telephoning petitioner's place of employment, home, or residence" within the definition of prohibited harassment. ILL. ANN. STAT. ch. 40, ¶ 2311-3(6)(ii) (Smith-Hurd Supp. 1992).
167. See, e.g., Cass R. Sunstein, Pornography and the First Amendment, 1986 DUKE L.J. 589, 602-08 (describing the distinction between low-value and high-value speech).
168. See id. at 603 (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685-86 (1986)).
169. See id. (citing Frederick Schauer, Speech and "Speech" - Obscenity and "Obscenity": An Exercise in the Interpretation of Constitutional Language, 67 GEO. L.J. 899, 932 (1979); and Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)).
170. See id. at 603-04.
171. Id. at 604; see also id. at 604 n.9o (contrasting the strict judicial scrutiny applied to the internment of Japanese-Americans in Korematsu v. United States, 323 U.S. 214, 216 (1944), with the intermediate scrutiny applied to the gender-based drinking age in Craig v. Boren, 429 U.S. 190, 197 (1976)).
172. See, e.g., Boos v. Barry, 485 U.S. 312, 318 (1988); Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 758-59 (1985); Connick v. Myers, 461 U.S. 138, 145 (1983).
173. See Kent Greenawalt, Insults and Epithets: Are They Protected Speech?, 42 RUTGERS L. REV. 287, 293 (1990) (comparing such insults to "slaps or pinches," and arguing that their abusive character "diminishes the expressive importance of the words").
174. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-8, at 837 (2d ed. 1988).
175. See, e.g., United States v. O'Brien, 391 U.S. 367, 377 (1968). Any particular regulation, of course, would also have to be reviewed to determine whether the incidental restriction on speech was no greater than essential to the furtherance of this governmental interest - an inquiry that cannot be undertaken in the abstract. See id.
176. The right to free expression in a public forum is not absolute and can be restricted on the basis of content only if "'its regulation is necessary to serve a compelling state interest and ... is narrowly drawn to achieve that end.'" Frisby v. Schultz, 487 U.S. 474, 481 (1988) (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)); accord Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984). Thus, the government's compelling interest in eliminating all forms of discrimination against women, see Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537, 549 (1987); Roberts, 468 U.S. at 623-24, can justify interference with First Amendment rights, see New York State Club Ass'n v. City of New York, 487 U.S. 1, 12 (1988); Rotary Int'l, 481 U.S. at 549; Roberts, 468 U.S. at 623; see also Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 391 (1973) (upholding an ordinance that prohibited newspapers from printing sex-segregated "help wanted" ads).
177. 112 S. Ct. 2538 (1992).
178. ST. PAUL, MINN., LEGIS. CODE § 292.02 (1990), cited in R.A.V., 112 S. Ct. at 2541.
179. R.A.V., 112 S. Ct. at 2545.
180. See id. at 2563 (Stevens, J., concurring in the judgment) (arguing that "our entire First Amendment jurisprudence creates a regime based on the content of speech").
181. Id.
182. I obviously think that R.A.V. was wrongly decided, but I refrain from any more extended we of the opinion here. I am certain that the law reviews will contain detailed and ample discussion of R.A.V. See, e.g., Akhil Reed Amar, The Supreme Court, 1991 Term - Comment: The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124 (1992).
183. R.A.V., 112 S. Ct. at 2545. For example, the majority concluded that the federal government may prohibit only threats of violence directed against the President "since the reasons why threats of violence are outside the First Amendment . . . have special force when applied to the person of the President." Id. at 2546.
184. Id. at 2546.
185. Id. at 2548.
186. Id. at 2546.
187. Not only are racial groups protected under Title VII, but, as "discrete and insular minorities," they may also be entitled to "a more searching judicial inquiry" than is applied in cases of discrimination against women. Cf. United States v. Carolene Prods. Co., 304 U.S. 144. 153 n.4 (1938) (noting that discrimination against "discrete and insular minorities" may warrant a higher degree of scrutiny).
188. Cf. CATHARINE A. MACKINNON, Francis Biddle's Sister: Pornography, Civil Rights, and Speech, in FEMINISM UNMODIFIED 163, 195 (1987) (arguing that restrictions on pornography will help women gain the "affirmative access to speech" that has been denied them).
189. See, e.g., Lawrence Sherman, Janell D. Schmidt, Dennis P. Rogan, Douglas A. Smith, Patrick R. Garten, Ellen G. Conn, Dean J. Collins & Anthony R. Bacich, The Variable Effects of Arrest on Criminal Careers: The Milwaukee Domestic Violence Experiment, 83 J. CRIM. L. & CRIMINOLOGY 137, 141-42 (1992) (arguing that police exercise their discretion in making arrests and tend to arrest those who strike them as "riffraff").
190. ILL. REV. STAT. ch. 38, ¶ 12-I (1979).
191. RESTATEMENT (SECOND) OF TORTS § 21 (1965).
192. State v. Williams, 120 S.E. 224, 227 (N.C. 1923). The "show of violence" involved in Williams was a repeated proposition ("Give me some of your _," in the court's transcription) directed by a Black man to a white girl. See id. at 225; see also State v. Allen, 95 S.E.2d 526, 528 (N.C. 1956) (noting that "no man by the show of violence has a right to put another in fear and thereby force him to leave a place where he has the right to be" (citing State v. Daniel, 48 S.E. 544, 545 (N.C. 1904))).
193. Leach v. Leach, 33 S.W. 703, 703 (Tex. Civ. App. 1895).
194. See Shields v. State, 44 S.W. 844, 844 (Tex. Crim. App. 1898).
195. Id. at 844.
196. See, e.g., State v. McIver, 56 S.E.2d 604, 604 (N.C. 1949) (describing the victim as a woman "of good character"). This fact, of course, is something shared in common with prosecutions for rape, in which jurors are unlikely to believe that "a defendant is guilty if the victim had engaged in sex outside of marriage." Morrison Torrey, When Will We Be Believed?: Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. DAVIS L. REV. 1013, 1054 (1991).
197. MACKINNON, supra note 2, at 166.
198. See id. at 172-73.
199. State v. Williams, 120 S.E. 224, 228 (N.C. 1923); see also Mclver, 56 S.E.2d at 604 (describing the victim as a "white woman of good character" accosted by a "colored man").
200. See infra p. 556.
201. See supra pp. 533-34.
202. RESTATEMENT (SECOND) OF TORTS § 21 (1965).
203. See Benard & Schlaffer, supra note 13, at 71-72.
204. See id. at 71.
205. See Hamby v. State, 328 S.E.2d 224, 225 (Ga. Ct. App. 1985).
206. See id. at 226. The case was, however, remanded for resentencing under Georgia's fighting words statute. See id.
207. See, e.g., Reed v. Maley, 74 S.W. 1079, 1082 (Ky. 1903); Prince v. Ridge, 66 N.Y.S. 454, 455 (N.Y. Sup. Ct. 1900).
208. Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 HARV. L. REV. 1033, 1055 (1936).
209. Reed, 74 S.W. at 1081.
210. See, e.g., Lloyd R. Cohen, Sexual Harassment and the Law, SOCIETY, May-June 1991, at 8, 9-10.
211. In the workplace context, men and women are not similarly situated with respect either to the initiation of sexual interactions in our culture (which are normally initiated by men) or to power relationships in the workplace (where the man is usually the supervisor or superior). See GUTEK, supra note 2, at 31. When the case of a powerful woman who has sexually harassed a man in a subordinate position is presented, that case should be dealt with on its terms, not as a matter of rhetoric.
212. See Jaclyn Packer, Sex Differences in the Perception of Street Harassment, 5 WOMEM & THERAPY 331, 334 (1986). Female subjects also thought that women were significantly less complimented, less pleased, more angry, and more offended by street harassment than male survey respondents thought. See id. There is also evidence that men perceive friendliness from women as seduction, another misperception that may lead to inappropriate male behavior in some situations. See Antonia Abbey, Sex Differences in Attributions for Friendly Behavior: Do Males Misperceive Females' Friendliness?, 42 J. PERSONALITY & SOC. PSYCHOL. 830, 836 (1982); Frank Saal, Catherine Johnson & Nancy Weber, Friendly or Sexy? It May Depend on Whom You Ask, 13 PSYCHOL. WOMEN Q. 263, 268 (1989).
213. See Jaclyn Packer, Sex Differences in the Perception of Street Harassment, 5 WOMEM & THERAPY 331, 334 (1986). Female subjects also thought that women were significantly less complimented, less pleased, more angry, and more offended by street harassment than male survey respondents thought. See id. There is also evidence that men perceive friendliness from women as seduction, another misperception that may lead to inappropriate male behavior in some situations. See Antonia Abbey, Sex Differences in Attributions for Friendly Behavior: Do Males Misperceive Females' Friendliness?, 42 J. PERSONALITY & SOC. PSYCHOL. 830, 836 (1982); Frank Saal, Catherine Johnson & Nancy Weber, Friendly or Sexy? It May Depend on Whom You Ask, 13 PSYCHOL. WOMEN Q. 263, 268 (1989).
214. See Jaclyn Packer, Sex Differences in the Perception of Street Harassment, 5 WOMEM & THERAPY 331, 334 (1986). Female subjects also thought that women were significantly less complimented, less pleased, more angry, and more offended by street harassment than male survey respondents thought. See id. There is also evidence that men perceive friendliness from women as seduction, another misperception that may lead to inappropriate male behavior in some situations. See Antonia Abbey, Sex Differences in Attributions for Friendly Behavior: Do Males Misperceive Females' Friendliness?, 42 J. PERSONALITY & SOC. PSYCHOL. 830, 836 (1982); Frank Saal, Catherine Johnson & Nancy Weber, Friendly or Sexy? It May Depend on Whom You Ask, 13 PSYCHOL. WOMEN Q. 263, 268 (1989).
215. The reasonable woman standard is increasingly being employed by courts in cases involving sexual harassment in the workplace. See, e.g., Ellison v. Brady, 924 F.2d 872, 878-80 (9th Cir. 1991); Drinkwater v. Union Carbide Corp., 904 F.2d 853, 860 (3d Cir. 1990); King v. Board of Regents, 898 F.2d 533, 537 (7th Cir. 1990); Lipsett v. University of P.R., 864 F.2d 881, 898 (1st Cir. 1988). The standard has also been criticized as subject to an essentialist analysis that equates the reasonable woman's reactions with those of a middle-class, heterosexual white woman. See, e.g., Martha Chamallas, Feminist Constructions of Objectivity: Multiple Perspectives in Sexual and Racial Harassment Litigation, 1 TEX. J. WOMEN & L. 95, 103 (1992). Although care should be taken to avoid this restricted interpretation, it may still be important to the development of the law to allow the reasonable woman to push the reasanable man off the stage for a period before the reasonable victim takes over. The danger of adopting a reasonable victim standard too soon is that the reasonable victim may simply be a new name for the reasonable man, unless a course of litigation has first shown that his reactions can be quite different from those of the reasonable woman. I acknowledge the dangers of an essentialist interpretation of the reasonable woman standard in the meantime. Even if feminist attorneys take care not to fill in this new persona with the characteristics of white, middle-class women there are not enough of us practicing law, and all of us are usually more interested in winning the individual plaintiff's case than in molding the categories of the common law.
216. 95 S.E.2d 526 (N.C. 1956).
217. See id. at 526-27. State v. Williams, 120 S.E. 224 (N.C. 1923), and state v. McIver, 56 S.E.2d 604 (N.C. 1949), also involved repeated encounters.
218. For a discussion of the legal remedies in cases involving obsessional harassment, see Comment, A Remedial Approach to Harassment, 70 VA. L. REV. 507 (1984); Linda M, Gunderson, Note, Criminal Penalties for Harassment, 9 PAC. L.J. 217 (1978).
219. For a discussion of the legal remedies in cases involving obsessional harassment, see Comment, A Remedial Approach to Harassment, 70 VA. L. REV. 507 (1984); Linda M, Gunderson, Note, Criminal Penalties for Harassment, 9 PAC. L.J. 217 (1978).
220. 18 PA. CONS. STAT. ANN. § 2709 (1972).
221. See ALA. CODE § 13A-11-8 (1975); ALASKA STAT. § 11.61.120 (1989); ARK. CODE ANN. § 5-71-208 (Michie 1987); COLO. REV. STAT. § 18-9-111 (1986); DEL. CODE ANN. tit. II, § 1311 (1974); HAW. REV. STAT. § 711-1106 (1988); N.H. REV. STAT. ANN. § 644:4 (1986); N.J. REV. STAT. § 2C:33-4 (1978); N.Y. PENAL LAW § 240.25 (Consol. 1984); OR. REV. STAT. § 166.065 (1991); MODEL PENAL CODE § 250.4 (1962).
222. 18 PA. CONS. STAT. ANN. § 2709 (1983).
223. See People v. Malausky, 485 N.Y.S.2d 925, 927-28 (Rochester City Ct. 1985).
224. Id. at 927.
225. See supra pp. 533-34.
226. Id. at 928. This is reminiscent of the court's treatment of the sexuality of the plaintiff, a woman solicited while on horseback, in Shields v. State, 44 S.W. 844, 844 (Tex. Crim. App. 1898). See supra pp. 550-51.
227. Malausky, 485 N.Y.S.2d at 928 (quoting People v. Harvey, 123 N.E.2d 81, 83 (N.Y. 1954)).
228. See supra p. 552.
229. Branda v. Sanford, 637 P.2d 1223, 1224 (Nev. 1981) (The court's transcription reads: "'f-k-g bitch,' 'f-k-g c-t.'").
230. Blair, supra note 24, at 119.
231. Kannapell, supra note 30, at 37.
232. 18 PA. CONS. STAT. ANN. § 2709 (1983); see supra p. 555.
233. People v. Malausky, 485 N.Y.S.2d 925, 929 (Rochester City Ct. 1985).
234. See supra pp. 554-55. These harassment statutes are most directly applicable to cases that involve obsessional harassment, in which one harasser stalks his victim over a period of time See Comment, supra note 186, at 525; Gunderson, Note, supra note 186, at 238-39.
235. The lack of cases may reflect the failure of police and prosecutors to enforce harassment laws It is also possible that women or their harassers have not appealed trial court dispositions. My research would not have revealed success and failure at the trial court level alone. Because these charges are brought as misdemeanors, it would not usually be considered worth the time and money to appeal a conviction, as was done to appeal the $100 fine imposed in Commonwealth v. Duncan, 363 A.2d 803, 804-05 (Pa. Super. Ct. 1976).
236. See id. at 805. The female student had fallen asleep while studying; when she awoke, the defendant, a non-student and stranger, "was on a hassock in front of her, with his face in close proximity to her face. Appellant then requested a favor of Miss Hartman, saying, 'I never ate a pussy before.'" He repeated his request for a "favor," despite her repeated requests that he leave. Id.
237. 18 PA. CONS. STAT. ANN. § 2709 (1983); see supra p. 555.
238. See Duncan, 363 A.2d at 805.
239. See id. at 810 (Hoffman, J., dissenting). Judge Hoffman opined that the woman in this case was never really placed in apprehension for her safety (despite the fact that the remarks described were addressed to her by a stranger in the middle of the night with no one else present). See id. He also wondered whether "[g]iven society's increasing sexual permissiveness . . . the suggested act is still considered 'indecent.'" Id. at 810 n.7.
240. Id. at 809 n.4.
241. As Catharine MacKinnon has noted, when courts are confronted with a massive social problem that has been ignored, their first response is usually concern that the flood of complaints will be administratively difficult for the court system. See MACKINNON, supra note 2, at 95-97.
242. Moreover, as Catharine MacKinnon has pointed out in the context of sexual harassment in the workplace, the court uses the epithet "personal" in this case (in which a young woman was accosted by a stranger asking her for oral sex in the middle of the night!) as a way to rationalize legal noninvolvement by treating harassment as an individual or isolated experience rather than the common and shared experience of women. See id. at 83-87.
243. In some states, there are also statutes that prohibit the use of obscene or insulting language on the streets; the Michigan Penal Code explicitly prohibits the use of any such language in the presence or hearing of a woman or child. See MICH. COMP. LAWS ANN. § 750.337 (West 1991). Similar behavior may also be prohibited as a public nuisance. For example, Chicago's municipal code provides that: Any person who shall commit any indecent, lewd, or filthy act in any public place in the city; who shall utter any lewd or filthy words . . . or use any threatening or abusive language in the hearing of other persons; who shall make any obscene gesture in the presence of other persons; or, who shall make any overture of lewdness, tending to pervert the morals of any person, upon or in the public ways or other public place or in any public conveyance in the city, is hereby declared to be a common nuisance and shall be fined not to exceed $200.00 for each offense. CHICAGO, ILL., MUN. CODE § 8-8-070 (1990). I have excluded these statutes from more extended analysis as potential street harassment remedies because they target an issue that is quite different from street harassment, one that is not necessarily problematic for women, who themselves may want the right to use some obscene words and phrases on the streets. Moreover, use of obscenity laws to fight street harassment could simply exacerbate the courts' continuing failure to perceive the differences between the harms of pornography and of obscenity. See generally MACKINNON, supra note 158, at 174-75 (distinguishing between obscenity law, as a judgment about morality, and pornography, as a practice that harms women).
244. In some states, there are also statutes that prohibit the use of obscene or insulting language on the streets; the Michigan Penal Code explicitly prohibits the use of any such language in the presence or hearing of a woman or child. See MICH. COMP. LAWS ANN. § 750.337 (West 1991). Similar behavior may also be prohibited as a public nuisance. For example, Chicago's municipal code provides that: Any person who shall commit any indecent, lewd, or filthy act in any public place in the city; who shall utter any lewd or filthy words . . . or use any threatening or abusive language in the hearing of other persons; who shall make any obscene gesture in the presence of other persons; or, who shall make any overture of lewdness, tending to pervert the morals of any person, upon or in the public ways or other public place or in any public conveyance in the city, is hereby declared to be a common nuisance and shall be fined not to exceed $200.00 for each offense. CHICAGO, ILL., MUN. CODE § 8-8-070 (1990). I have excluded these statutes from more extended analysis as potential street harassment remedies because they target an issue that is quite different from street harassment, one that is not necessarily problematic for women, who themselves may want the right to use some obscene words and phrases on the streets. Moreover, use of obscenity laws to fight street harassment could simply exacerbate the courts' continuing failure to perceive the differences between the harms of pornography and of obscenity. See generally MACKINNON, supra note 158, at 174-75 (distinguishing between obscenity law, as a judgment about morality, and pornography, as a practice that harms women).
245. GA. CODE ANN. § 16-11-39 (1992).
246. In this respect, fighting words statutes differ as well from disorderly conduct ordinances, which are directed at breaches of the peace resulting from the "disorderly" action of the offender, whereas fighting words statutes look to whether the reaction of the hearer, not of the defendant, is likely to breach the peace.
247. See Magruder, supra note 178, at 1054.
248. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). The words at issue in Chaplinsky were "damned Fascist" and "damned racketeer." Although the Supreme Court has never upheld a fighting words conviction based on Chaplinsky, it reaffirmed Chaplinsky in R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2543-44 (1992). In R.A.V., however, the Court held that fighting words statutes violate the First Amendment if they are content-based. See id. at 2548-49; supra pp. 546-48.
249. Chaplinsky, 315 U.S. at 573 (quoting State v. Chaplinsky, 18 A.2d 754, 762 (N.H. 1941)).
250. 413 U.S. 15 (1971).
251. See id. at 20 (overturning a conviction for wearing a jacket with the words "Fuck the draft" written on it in a courthouse corridor, which was found to be a political comment not intended as a personal insult to any viewer).
252. TRIBE, supra note 144, § 12-8, at 839 (quoting Chaplinsky, 315 U.S. at 571-72).
253. See, e.g., Breaux v. State, 197 S.E.2d 695, 696-97 (Ga. 1973) (affirming the conviction, under a predecessor of Georgia's current fighting words statute, of a male driver who asked an 11-year-old girl pedestrian, "Have you ever been laid?"). But see Rozier v. State, 231 S.E.2d 131, 131 (Ga. Ct. App. 1976) (overturning the conviction of a defendant who remarked to a 16-year-old while she was at home with her five-year-old brother, "How about some pussy?" on the ground that the phrase did not constitute fighting words). This is also the statute under which the Hamby case, involving the motorcyclists at the gas station, was remanded. See supra P. 552.
254. See Lawrence, supra note 82, at 453-54 (noting that this is a white male stereotype); Matsuda, supra note 10, at 2355; cf. Greenawalt, supra note 143, at 296-97 (suggesting that the degree of protection afforded by the First Amendment should depend on the speaker's knowledge of the inciting effect his words may have on his addressee). These commentators also note that it is more than a little strange to make a cause of action turn on the victim's propensity to react violently, leading Greenawalt to speak in favor of "equalization of victims." Id. at 297-99.
255. See supra p. 537.
256. 684 F.2d 714 (11th Cir. 1982).
257. Id. at 715.
258. See id. at 715-16.
259. Id. at 719.
260. See id. at 720.
261. Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (quoting State v. Chaplinsky, 18 A.2d 754, 762 (N.H. 1941)).
262. See supra pp. 553-54; see also supra p. 556 (illustrating the race and class biases of the "reasonable man" standard).
263. See Cohen, supra note 180, at 8, 9; cf. GUTEK, supra note 2, at 68-69 (citing empirical studies that indicate that some male targets of sexual overtures concede that they may have encouraged the incidents).
264. For a discussion of potential problems with the "average addressee" test, see Greenawalt, cited above in note 143, at 296-97.
265. See, e.g., Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal?, 1990 DUKE L.J. 484, 511.
266. In his concurrence, Justice White describes the majority's opinion in R.A.V. as imposing a new "underbreadth" doctrine. See R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2553 (1992) (White, J., concurring). The concurrence, however, found the statute to be unconstitutional on traditional overbreadth grounds. See id. at 2558.
267. See Plummer v. City of Columbus, 414 U.S. 2, 2-3 (1973) (holding facially unconstitutional a statute that criminalized abusive language and reversing a conviction in a case involving the harassment of a female passenger by a taxi driver).
268. See id. at 3-4 (Powell J., dissenting).
269. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
270. The appointment and election of more women judges may hasten this interpretation of Chaplinsky, as would a campaign to educate the public and the predominantly male judicial and legal profession about the harms of street harassment.
271. RESTATEMENT (SECOND) OF TORTS § 46(1) (1965).
272. Intentional infliction of emotional distress claims are common as pendent claims in cases brought under Title VII for sexual harassment in the workplace. See, e.g., Stewart v. Thomas, 538 F. Supp. 891, 896 (D.D.C. 1982) (sustaining an EEOC employee's tort claims against the individual defendant and Title VII "stressful workplace" claims against Clarence Thomas in his capacity as chairman on the ground that "the common law torts alleged . . . are distinct from the wrongs redressed by title VII"). Intentional infliction claims have also succeeded in surviving motions to dismiss in cases involving persistent harassment by telephone or mail. See, e.g., Mitran v. Williamson, 197 N.Y.S.2d 689 (N.Y. Sup. Ct. 1960) (holding that a jury could find the defendant liable for intentional infliction of emotional distress on the alleged facts that he solicited plaintiff and sent her obscene photos of himself in the mail); Samms v. Eccles, 358 P.2d 344 (Utah 1961) (reversing the dismissal of a claim of intentional infliction of emotional distress in a case in which the defendant was charged with persistent telephonic solicitation and one instance of indecent exposure).
273. Again, the lack of reported cases could mean either that no appeals have resulted from suits in which women have brought such charges, or that women have considered it futile to bring such cases. Given that this is a civil action, with a potential for contingent fee arrangements, one would assume that the decision whether to file suit has at least something to do with lawyers' assumptions about both the chance of success on such a claim and the potential for damages. If substantial damage awards had in fact resulted, one would expect to see reported appeals.
274. See Branda v. Sanford, 637 P.2d 1223 (Nev. 1981). Foxx asked the girl, whose name was Cheryl, if her name was "like in cherry," then yelled at her, among other things, that she was a "fucking bitch," and a "fucking cunt." He was also alleged to have said, "This is the one I want. This is her." Id. at 1224.
275. See supra p. 552. The Restatement does provide that liability for emotional distress may be based upon conduct that is caused recklessly as well as intentionally. See RESTATEMENT (SECOND) OF TORTS § 46(1) (1965). Although it might be easier to convince the finder of fact that the defendant knew or should have known that words such as those used by Redd Foxx would cause emotional distress, it would still be difficult to show that he acted in conscious disregard of that danger.
276. See, e.g., Daniel Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 COLUM. L. REV. 42, 46 (1982).
277. See, e.g., id. at 51-53; Jean C. Love, Discriminatory Speech and the Tort of Intentional Infliction of Emotional Distress, 47 WASH. & LEE L. REV. 123, 147-49 (1990).
278. RESTATEMENT (SECOND) OF TORTS § 46 cmt. d.
279. Id.
280. See Love, supra note 243, at 148-49.
281. RESTATEMENT (SECOND) OF TORTS § 46 cmt. j.
282. See supra pp. 535-38.
283. See Branda v. Sanford, 637 P.2d 1223, 1225 (Nev. 1981).
284. See Love, supra note 243, at 157-58.
285. See RESTATEMENT (SECOND) OF TORTS § 48 ("A common carrier or other public utility is subject to liability to patrons utilizing its facilities for gross insults which reasonably offend them, inflicted by the utility's servants while otherwise acting within the scope of their employment.").
286. Id. § 48 cmt. c; see also id. § 46 cmt. d (exempting from "outrageous conduct" requirement those situations in which there is a special relationship between the parties); id. § 48 cmt. c (explaining that for liability of public utilities to attach under § 48, conduct need not be "extreme[ly] outrage[ous]," but only "merely insulting").
287. See id. § 48 cmt. a.
288. Craker v. Chicago & Northwestern Ry., 36 Wis. 657, 675 (1875); see supra pp. 527-28.
289. Craker, 36 Wis. at 672 (quoting Nieto v. Clark, 18 F. Cas. 236, 238 (C.C.D. Mass. 1858) (No. 10,262)).
290. Id. at 674.
291. See supra pp. 550-51.
292. In discussions of harassment with female students and friends, many told gruesome stories of their experiences riding trains and buses to school and to work. One of my students described men who come up and "smell" women passengers. She also recounted hearing one man loudly proclaim to his companion, "I want me a piece of that." When the student looked up, to see someone carrying a cake, she realized that they were pointing at and talking about her. Law professor Morrison Torrey also reports an incident in which a man exposed himself to her on a Chicago Transit Authority bus at 10:00 a.m. while she was on her way to work.
293. See Craker, 36 Wis. at 679.
294. Cf. Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991) (holding that Title VII requires an employer to take greater remedial measures in response to an incident of employee sexual harassment than merely requesting that the perpetrator refrain from continuing it).
295. See Liljegren v. United Rys., 227 S.W. 925, 926 (Mo. Ct. App. 1921). The offending Passenger, who was intoxicated, had grabbed the plaintiff and kissed her against her will. See id see also Annotation, Civil Liability for Insulting or Abusive Language Not Amounting to Defamation, 15 A.L.R.2d 108, 144-49 (1951) (listing cases concerning carrier liability for the use of indecent language by persons other than carrier employees).
296. The Clarence Thomas confirmation hearings had such an effect on public consciousness about workplace harassment.
297. See supra p. 565.
298. Kissling & Kramarae, supra note 22, at 83 (quoting a participant in a discussion of street remarks that was conducted on a computer system).
299. Winegar, supra note 84, at 186.
300. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193 (1890).
301. RESTATEMENT (SECOND) OF TORTS § 6526 (1977).
302. Id. § 652B cmt. d.
303. See supra pp. 553-54, 562.
304. Christie v. Greenleaf, 78 Pa. D. & C. 191, 191-92 (Phila. County Ct. 1951) The defendant in this case made the plaintiff "the butt of billingsgate, harsh names and insulting gestures." Id. at 191.
305. See supra notes 11-17 and accompanying text.
306. Christie, 78 Pa D. & C. at 192.
307. RESTATEMENT (SECOND) OF TORTS § 652B cmt. c (1977).
308. See id. at § 652B cmt. b.
309. See supra P. 537.
310. Gardner, supra note 20, at 347.
311. See, e.g., MEDEA & THOMPSON, supra note 95, at 52.
312. See Dana, supra note 27, at C5; James E. Gruber & Lars Bjorn, Women's Responses to Sexual Harassment: An Analysis of Sociocultural, Organizational, and Personal Resource Models, 67 SOC. SCI. Q. 814, 823 (1986).
313. See Gardner, supra note 20, at 346.
314. See id.; Dana, supra note 27, at C5.
315. Kannapell, supra note 30, at 37.
316. See Joan Goldman, Walk Down Any Street and Be a Prisoner of War, MAJORITY REP., Aug. 22, 1974, at 5.
317. Id. The gentility of this message was somewhat qualified by the reverse side, which stated that "[t]his card has been chemically treated. In approximately 36 hours your prick will fall off." Id.
318. See, e.g., MAJORITY REP., Sept. 4-17, 1976, at 6 (providing a form letter to be filled out and sent to employers).
319. See id.
320. See Elizabeth A. Kissling, Unwanted Attention, WOMEN & LANGUAGE, Spring 1985, at 3, 25.
321. In Chicago, for example, the administration of DePaul University intervened with a construction company after receiving complaints from female students about harassment by construction workers at the Lincoln Park campus. The workers were told that if they did not case their harassing behavior, they would be terminated from the job. Interview with Robert Janis, Associate Vice President for Physical Plant, DePaul University (Nov. 11, 1992). Another recent example was reported on local television news in Chicago on February 21, 1992. A woman summoned police to deal with harassers at a construction site and subsequently complained to the construction company, which responded by firing the harassing workers. See Building Bias, CHI. TRIB., Mar. 15, 1992, § 6, at 1. Cheris Kramarae describes a similar incident in Cambridge, England, where a 26-year-old woman reported a workman on a city Job who made kissing noises at her; the City Council responded by ordering workmen to stop harassing women if they wanted to keep their jobs. See Kramarae, supra note 4, at 118 n.2. Another fine idea is to insist upon the inclusion of a non-harassment clause as a condition in the construction contract itself, especially in contracts for public works, in which the agency employing the contractor is accountable to the public. See Andrew Morgan, The Silent Brickeris of Hope Street, THE INDEPENDENT, Sept. 8, 1992, at 18.
322. In Chicago, for example, the administration of DePaul University intervened with a construction company after receiving complaints from female students about harassment by construction workers at the Lincoln Park campus. The workers were told that if they did not case their harassing behavior, they would be terminated from the job. Interview with Robert Janis, Associate Vice President for Physical Plant, DePaul University (Nov. 11, 1992). Another recent example was reported on local television news in Chicago on February 21, 1992. A woman summoned police to deal with harassers at a construction site and subsequently complained to the construction company, which responded by firing the harassing workers. See Building Bias, CHI. TRIB., Mar. 15, 1992, § 6, at 1. Cheris Kramarae describes a similar incident in Cambridge, England, where a 26-year-old woman reported a workman on a city Job who made kissing noises at her; the City Council responded by ordering workmen to stop harassing women if they wanted to keep their jobs. See Kramarae, supra note 4, at 118 n.2. Another fine idea is to insist upon the inclusion of a non-harassment clause as a condition in the construction contract itself, especially in contracts for public works, in which the agency employing the contractor is accountable to the public. See Andrew Morgan, The Silent Brickeris of Hope Street, THE INDEPENDENT, Sept. 8, 1992, at 18.
323. See Dana, supra note 27, at C5; Wendy Milello, Calendar - Rape Prevention, WASH. POST, Sept. 9, 1986, at T16.
324. See Dana, supra note 27, at C5; 1. Rajeswary, Anti-Rape Week Will Target Verbal Abuse, WASH. POST, Sept. 20, 1985, at C2.
325. See Dana, supra note 27, at C5; Milello, supra note 288, at T16.
326. Most cases concerning harassment on public transportation by employees (bus drivers is particular) are apparently brought as intra-agency complaints and result in discipline or dismissal of the employee rather than any sort of recovery for the target. Thus, the accounts that do exist appear in reports of arbitration, see, e.g., In re Colonial Seh. Dist., 96 Lab. Arb. Rep. (BNA) 1122, 1124-25 (1991) (upholding the suspension and transfer of a male schoolbus drive whom female student passengers accused of making improper advances), or in cases involving due process challenges to dismissals caused by harassment, see, e.g., Green v. Board Sch. Comm'rs, 716 F.2d 1191, 1192-93 (7th Cir. 1983) (rejecting a due process challenge to the dismissal of a schoolbus driver for sexual harassment of children on his bus).
327. As Catharine MacKinnon has pointed out in the context of workplace harassment, a fundamental reason "for the legal system's lack of response to sexual harassment is the conceptual insdequacy of traditional legal theories to the social reality of men's sexual treatment of women. It is no accident that no recognized legal category has been applied with any regularity to the entire fact pattern of sexual harassment." MACKINNON, supra note 2, at 161; see also Book Note, An Unlady-Like Response to Legal Conceptions of Women, 105 HARV. L. REV. 2104, 2107-09 (1992) (reviewing SUSAN FALUDI: BACKLASH: THE UNDECLARED WAR AGAINST AMERICAN WOMEN (1991)) (describing ways in which the law of sexual harassment ignores the reality of women's experiences).
328. As Catharine MacKinnon has pointed out in the context of workplace harassment, a fundamental reason "for the legal system's lack of response to sexual harassment is the conceptual insdequacy of traditional legal theories to the social reality of men's sexual treatment of women. It is no accident that no recognized legal category has been applied with any regularity to the entire fact pattern of sexual harassment." MACKINNON, supra note 2, at 161; see also Book Note, An Unlady-Like Response to Legal Conceptions of Women, 105 HARV. L. REV. 2104, 2107-09 (1992) (reviewing SUSAN FALUDI: BACKLASH: THE UNDECLARED WAR AGAINST AMERICAN WOMEN (1991)) (describing ways in which the law of sexual harassment ignores the reality of women's experiences).
329. The "prima facie tort" may be the perfect vehicle for harassment claims. The elements of this tort are simply: (1) an intentional lawful act by the defendant; (2) an intent to cause injury to the plaintiff; (3) injury to the plaintiff; and (4) the absence of any justification or an insufficient justification for the defendant's act. See, e.g., Kiphart v. Community Fed. Sav. & Loan Ass'n, 729 S.W.2d 510, 516 (Mo. App. 1987). My research has located no harassment claims that have ever been brought under this rubric, and precious few prima facie tort cases of any sort.
330. Cf. Stephanie A. Levin, Grassroots Voices: Local Action and National Military Policy, 40 BUFF. L. REV. 321, 332-34, 367-68 (1992) (proposing a "participatory federalism," which would enrich our constitutional values by stimulating grassroots voices that speak to national security concerns).
331. Of course, one must be concerned about the potential for discriminatory enforcement on the basis of race or class. See supra pp. 548 & n. 159, 551, 556.
332. A private right of action for violations of the statute is provided in order to take accoiunt of the large amount of discretion in the hands of police, who may not be sympathetic to enforcement of the statute, and to provide an alternative forum in which the harasser would not be entitled to the panoply of protections available under the criminal law.
333. This would be similar to the alternative sentence meted out to traffic offenders upon a first moving violation in Chicago, who are often offered the choice of watching a movie about safe driving instead of paying a fine.
334. See supra pp. 546-48.
335. Certainly the pornography ordinances introduced and defended by Catharine MacKinnon and Andrea Dworkin in Minneapolis and Indianapolis had this effect, even though the latter was overturned by the court in American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 325 (7th Cir. 1985).
336. See RESTATEMENT (SECOND) OF TORTS § 46(1) (1965).
337. Id. § 652B & cmt. c.
338. See id. § 48 cmt. a.
339. For example, the city of Chicago's rules regulating taxis state: Public chauffeurs shall be courteous to passengers, prospective passengers and other drivers at all times. Chauffeurs shall not assault, threaten, abuse, insult, provoke, interfere with, use profane language or offensive gestures around, impede or obstruct any Person in connection with the operation of their vehicles. Chicago, Ill., Dep't of Consumer Servs., Public Vehicle Operations Div., Rules and Regulations for Public Chauffeurs, Rule 21A (1986).
340. Ironically, male law students proved more likely to assume that "something" should - and could - be done to remedy street harassment by legal means.
341. West, supra note 9, at 86.