New legislation to deal with sex-based harassment now in force

On 18 September 2023, a new Act came into force primarily creating a new offence of sex-based harassment. The Protection from Sex-based Harassment in Public Act 2023 amends the Public Order Act 1986 by creating a new offence of intentional harassment, alarm or distress on account of sex.

What is the offence?

The new offence is created by the insertion of a section 4B into Public Order Act 1986. This provides that a person is guilty of an offence if:-

1. they commit an offence under section 4A of the Act (threatening, abusive or intentional behaviour with intent); and
2. The conduct in (a) above is carried out because of the victim’s sex (or presumed sex).

In a similar vein to previous amendments on the grounds of racial and religious discrimination, the new offence is more serious than the simple offence. It is triable either-way with a maximum penalty of two years imprisonment in the Crown Court.

What sort of behaviour is the legislation designed to prevent?

The Bill was introduced by the Conservative MP Greg Clark and the summary describes public sex-based harassment as being “generally understood to involve unwelcome and unwanted behaviour directed at a person in a public space, such as on the street, on public transport, in a gym, or at a hospitality venue, because of that person’s sex”.

Specific examples of such behaviour were cited as:-

• Intrusive or persistent staring or questioning
• Following someone
• Sexual or obscene comments
• Propositions or gestures (catcalling perhaps?)
• Flashing of exposing intimate body parts
• Non-consensual physical contact
• Technology-enabled sexual behaviour.

Commentary

There is, of course, already a raft of legislation specifically designed to deal with the above examples of conduct. Some of the more egregious examples such as exposure, up skirting and sexual assault are already offences under Sexual Offences Act 2003. There is provision suggesting that the commission of the offence is still carried out where the conduct was also because of other factors or for sexual gratification. Whilst legislation designed to prevent the harassment of women on the street is laudable in its intentions, the concern is that section 4A offences committed against members of the opposite sex may simply attract the more serious offence. It is to be hoped that CPS guidance will require one of the aforementioned aggravating features even if the legislation does not appear to do so.

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