“Not Your Fucking Tennessee Sweetheart”–Tennessee Law and Street Harassment

I am a huge fan of Scott Greenfield’s “Simple Justice” blog, which I think everyone (especially those in criminal defense) should read daily.  I’ve praised and linked to SG’s work on numerous occasions, and I have praised the man openly on Twitter before as well.  Ever the humble professional, Mr. Greenfield has told me in the past and will probably tell me again later on, “just wait–eventually I’ll write something that will piss you off.”

I suspect he did that recently with a post called “Walking A Month In Her Heels,” which you can read here: http://blog.simplejustice.us/2014/09/01/walking-a-month-in-her-heels/

The post, which I’d please ask you to go read, is SG’s following of a Tumblr blog called “Not Your Fucking Sweetheart,” lauded by Stanford Law Professor Nancy Leong as an experiment in documenting “street harassment” for a month in Washington DC during the month of August.  The goals, according to Leong and explained here (http://www.nancyleong.com/race-2/the-cumulative-effect-of-street-harassment/) are as follows:

1. Highlight that the harm of street harassment is not just a one-off encounter.

2. Highlight the impact of street harassment on women.

3. Highlight that women experience street harassment more than men (Again, I agree with SG’s premise that this is a bold statement to make for this “experiment,” as the effects are solely documented by one woman without regard to any male victims of street harassment…but I digress).

4. Directly and indirectly address the issue of why many men are not more aware of the frequency and severity of street harassment.

This sounds like a good enough series of goals.  Go through and read SG’s post, and definitely take a gander at the Tumblr in question, which is found here: http://notyourfuckingsweetheart.tumblr.com/

Now that you’ve read all of the pertinent material, I want to address this issue from a Tennessee Law perspective.  Do any of the encounters listed in “Not Your Fucking Sweetheart” meet the definition of harassment–a statutorily defined crime–in Tennessee?  Let’s begin by taking a look at the relevant statute.  Tennessee Code Annotated 39-17-308 lists harassment as follows, and for the purposes of giving those who allege “street harassment” like “Not Your Fucking Sweetheart,” I list as many relevant sections of the law as I find possible:

(a)  A person commits an offense who intentionally:

(1)  Threatens, by telephone, in writing or by electronic communication, including, but not limited to, text messaging, facsimile transmissions, electronic mail or Internet services, to take action known to be unlawful against any person and by this action knowingly annoys or alarms the recipient;

(2)  Places one (1) or more telephone calls anonymously, or at an hour or hours known to be inconvenient to the victim, or in an offensively repetitious manner, or without a legitimate purpose of communication, and by this action knowingly annoys or alarms the recipient;

(4)  Communicates with another person by any method described in subdivision (a)(1), without legitimate purpose:

(A)  (i)  With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii)  In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B)  As the result of the communication, the person is frightened, intimidated or emotionally distressed.

 

Let’s focus on the following section, as I think it most relevant for the discussion of “Street Harassment.” T.C.A. 39-17-308(a)(4)(A) and (B) state that if a person “communicates with another person…without legitimate purpose…with the malicious intent to frighten, intimidate, or cause emotional disress; or in a manner the defendant knows, or reasonably should know, would frighten, intimidate, or cause emotional distress to a similarly situated person of reasonable sensibilities, and as a result of the communication, the person is frightened, intimidated, or emotionally distressed.” (my emphasis added).  Now, let’s go through the list of grievances uttered by “Not Your Fucking Sweetheart” and see if any of the alleged harassing moments meet with the above definition:

August 3: Man looks our narrator up and down and says “Camel Toe.”  Narrator screams at man “like an unhinged lunatic for a bit,” then goes home to check whether he wasn’t just informing of a wardrobe malfunction.

This, based on the definition listed above, does not meet “harassment,” as all we have is the narrator’s interpretation of an intent to “cause emotional distress.”  While our writer might have felt emotionally distressed, we have no idea as to whether a similarly situated person of reasonable sensibilities might have construed the remark as simply informing of a wardrobe malfunction, or agreed with her.  Furthermore, we don’t have malicious intent.  This, under analysis, fails the test.

August 4: Narrator is playing with her ponytail.  A man tells her “If that was my hair I’d be playing with it too.”  Narrator responds with “What?  That’s disgusting.  Get the fuck away from me.”  Man calls narrator an “ugly (N-word) bitch” and asks her if she’s off her meds.  Narrator responds by shouting and threatening him until she was across the street.

I think there’s a possibility for “harassment” here on the latter communication.  We have the man making an initial comment, and the narrator responding that said comments were unwarranted and unwanted.  The man then communicated again with the woman in a manner that could be seen as causing emotional distress by any person in the same position with reasonable sensibilites.

August 7: Narrator is running with a group of co-eds and claims to be the recipient of several “kissing noises” and requests to “wait up.”  Narrator claims this is “ballsy” for these men.

I don’t see this as meeting the definition of harassment based on the same circumstances as the August 3 post.  In fact, I think the level of harassment is even more minimal here.

August 9: Narrator is locked in a cab by a cabdriver which is described as smelling “like someone had actually shat in the backseat while he went into a gas station for change.” Narrator complains when cabdriver returns.  Cabdriver calls Narrator “disrespectful.”

False imprisonment here?  Possibly, but we’re looking at harassment.  I don’t think this meets the level, as the cabdriver is personally within his rights to determine a person’s behavior towards him as “disrespectful.”  It may hurt some feelings to be described in this manner, but society doesn’t shield you from other peoples’ hurtful perceptions of your attitude.

August 15 brings us three levels of harassment:

1. Narrator is told to “smile” before she gets her morning coffee.

2. Man walking behind Narrator tells Narrator she looks “gorgeous” as Narrator walks into therapist’s building.

3. Guy smiles and honks horn at Narrator while she’s walking home.  Narrator gives man finger.  Guy keeps smiling.

These are not levels of harassment. I understand that there’s a movement to stop telling women to smile, because it “objectifies them” to a standard of just a female body inviting male direction in public, but none of these comments or actions were made with malicious intent to intimidate, frighten, or cause emotional distress. I do not see a person with “reasonable sensibilities” interpreting these as causing the above in court either.

August 19: Man says something to Narrator while Narrator is on phone talking to mother on the way home from yoga.  Narrator doesn’t hear it, but when Narrator turns around, Narrator sees man “leering and licking his lips.”

Again, this is not harassment under Tennessee law.  The communication is unwanted and annoying by the Narrator’s standards, but the question becomes whether a similarly situated person of reasonable sensibilities would find this action frightening, intimidating, or causing emotional distress.

August 22 (our final entry): Man looks narrator up and down several times while Narrator is at a coffee shop buying coffee and bagels.  When their eyes meet, Narrator asks if she can help man with anything.  Man says “no” and turns away. Narrator notes she was wearing shorts and a tank top.

Again–not harassment for the reasons listed above numerous times.

So why is this Tumblr so important, and why do we need to talk about the issue of “street harassment?”  I’d offer several reasons.  The first that makes “Not Your Fucking Sweetheart” so important is that a Stanford Law professor hailed this Tumblr blog as a window into the world of “street harassment”–something women allegedly regularly experience, and something that can have negative consequences for those who are victims of such behavior.  However, the examples given by Professor Leong (getting Gatorade thrown at you from a moving car or being called a “fucking whore”) are completely different from the examples that our esteemed Narrator Who Is Not Our Fucking Sweetheart offers (a man smiling and honking a horn, a man calling her gorgeous, a man looking at the Narrator) are not of the same level.  In fact, one could reasonably argue that a similarly situated person with reasonable sensibilities might find these incidents “off-putting,” but not rising to the level of harassment.  To add a remark from Scott Greenfield:

No one gets to demand a world where others remain silent so they aren’t constrained to “hear” their unwanted utterances. That’s just goofy.

Second, we need to understand in the legal community that words have meanings, and that co-opting those words to silence people or squelch behavior you potentially find repulsive or unbecoming is not acceptable.  We are rapidly progressing toward a society where such behavior will more than likely see legislation passed in an attempt to criminalize it.  Harassment in Tennessee is already a Class A misdemeanor, with very strict and narrow definitions to avoid something as broad as “Not Your Fucking Sweetheart” becoming a crime blotter.  Visceral reactions aside and appeals to emotion over how men such as myself “don’t know what it’s like to suffer street harassment” be damned–when you’re talking about sending someone to jail or giving them a criminal record because of something you find repulsive or offensive, you’d better have a good, narrowly tailored statute that defines and criminalizes specific heinous behavior–not just placing authority in the hands of an alleged “victim” to have her “offender” thrown in the stocks and pilloried.  The takeaway from “Not Your Fucking Sweetheart” would tend to suggest the latter is the goal of those who want to catalog “street harassment”–namely as SG puts it:

To the extent there is a takeaway, it’s that any interaction, verbal or not, kind or not, pleasant or not, is harassment if it’s not invited.

From where I’m sitting, you don’t get to determine a person’s jail sentence just because you disagree with an uninvited interaction.

Finally, we need to realize that this is a problem, but it’s one of perspective that demands discussion beyond simple face acceptance.  “Street Harassment” is a commonly accepted issue because reasons, and because people say it is.  There’s also no denying that women suffer from harassing behavior on the street when walking from place to place, but even Not Your Fucking Sweetheart says that

One thing I’ve noticed in the past few days is that — now that I’m paying attention all of the time — I’m not actually being harassed constantly. In general, people are pretty respectful of others’ space and/or not paying attention. However, when I am harassed, it stays with me for days and colors how I view everyone I encounter.

So we know the problem exists, and for a segment of the populace it’s a big deal that can color their views and send them down the world of “identity quakes” for days after the experience occurs.  However, if we’re going to define the unwanted behaviors, and take steps to mitigate the harms done to women (and men), we need to have a frank discussion about the issue.  Boundary lines need to be drawn, and we need clear definitions as to what makes for harassment versus simply uninvited and unpleasant encounters.  Simply taking the accuser’s word at face value and damning the alleged “harasser” to the ninth circle of sexual predator hell isn’t going to cut it.

It’s definitely a matter of perspective, it’s a matter that I don’t get, it’s a matter that a lot of men don’t get–and we’re going to need clear lines established through communication before we can make progress on this issue.

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