Note

When a Stranger Catcalls: The Need for Street Harassment Remedies in Iowa

I.     Introduction

Imagine you’re walking down the street eating a sandwich and someone says, Damn, that looks like a delicious sandwich, can I have a bite?  You’d think, why would I ever let you eat this sandwich? This is my sandwich. So you’d walk on and continue eating, and they’d say, What? You’re not going to say anything? No need to get mad, I was just trying to compliment your sandwich. Let’s say this happened three times a day, strangers stopping you on the street, letting you know how good your food looks, asking if they can have some of it. What if people started yelling out of their cars about how much they wanted your sandwich. Let me have some! they’d exclaim, driving by with a honk. Were you supposed to say, I’m sorry, no thank you, every time? Would you feel obligated to explain over and over again that you don’t wish to share because it’s your lunch and you don’t know them? That you don’t owe them any of it? That it’s a little unreasonable that they’re asking in the first place? All you would want is to walk down the street eating your sandwich in peace.1

Since the nation elected a man as President despite his confession that he had sexually assaulted women, and the launch of the #MeToo movement, activists and the media have brought attention to sexual violence and gender-motivated violence against women, minorities, and marginalized communities.2 However, we know that these occurrences are nothing new.

These two historical moments focused on sexual assault often perpetrated by or against high-profile individuals. Street harassment, though, has received noticeably less attention, despite disproportionately targeting marginalized communities3 and its status as a human rights violation.4 Street harassment can take the form of catcalling, whistling, sexist comments, sexually-explicit comments, stalking, homophobic, transphobic, or racist remarks, or vulgar gestures.5 Street harassment limits a person’s liberty, security, privacy, and freedom of movement—rights explicitly outlined in international resolutions.6 Therefore, specific measures must be taken to ensure that street harassment is not tolerated and victims7 are protected.

This Note proposes that the Iowa Legislature should adopt a law defining street harassment and create an advisory committee comprised of state employees and community representatives to implement prevention-education reforms and victim-assistance programs. Part II discusses the different scholarly definitions of street harassment, where street harassment occurs, the widespread harms faced by victims, and a brief history of the topic. Part III evaluates Iowa’s current criminal and civil statutes, which do not provide legal redress for street harassment victims, as well as analyzes Washington, D.C.’s 2018 street harassment law. Part IV offers a solution that Iowa should implement—an education-focused street harassment statute that encourages societal change without creating heightened criminalization in the state. Part V briefly concludes.

II.     What is Street Harassment?

To better understand what street harassment is, it is important to discuss street harassment’s definitions, theories, categories, and history. Section II.A describes a helpful comparison to understanding street harassment: sexual harassment. Section II.B attempts to define street harassment, using researchers’ and experts’ opinions. Section II.C analyzes the locations in which street harassment occurs. Section II.D discusses different interpretations of street harassment. Section II.E explains street harassment’s physical and mental effects. Lastly, Section II.F briefly examines street harassment’s history.

A.     Sexual Harassment Comparison

Street harassment in itself, more often than not, is a form of sexual harassment. Street harassment shares many of the characteristics that define sexual harassment: “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. . . . [and] offensive remarks about a person’s sex.”8 Street harassment is often, simply put, sexual harassment, but in public spaces.

In the United States, the definition of sexual harassment and its legal implications stem from Title VII of the Civil Rights Act of 1964.9 Title VII did not explicitly prohibit sexual harassment until a Supreme Court ruling 22 years after its passage.10 In Meritor Savings Bank, FSB v. Vinson, the Supreme Court defined sexual harassment under Title VII as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.”11 At the time, advocates described the decision as “momentous,”12 “miraculous,”13 and “remarkable.”14

Outside of the legal context, sexual harassment is omnipresent: It encompasses many more situations than those described by courts and statutes, and thus it should not be defined to occur solely in the workplace or educational settings. According to feminist scholar Reva Siegel, “[s]exual harassment is a social practice”15 based on “status inequalit[es].”16 Siegel articulates the power imbalance at play in sexual harassment: unsolicited sexualized behavior from “superiors [to] subordinates.”17 Yet, sexual harassment is not only sexual in nature—sexual harassment is also offensive physical and verbal provocations regarding a person’s sex, gender, gender identity, or gender expression.

Sexual harassment never was, nor ever will be, just a “woman’s issue.” Sexual harassment is an inherently intersectional18 issue, making it more complex to recognize, classify, or research. Intersectionality does not view an individual’s identities separately, instead the identities are viewed in the aggregate, or intertwined. Law professor and civil rights advocate Kimberlé Crenshaw explains:

In the context of violence against women, this elision of difference in identity politics is problematic, fundamentally because the violence that many women experience is often shaped by other dimensions of their identities, such as race and class. . . . And so, when the practices expound identity as woman or person of color as an either/or proposition, they relegate the identity of women of color to a location that resists telling.19

Intersectionality in sexual harassment “is greater than the sum of racism and sexism, [and] any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which [certain victims] are subordinated.”20 Street harassment research has historically focused on white women’s experiences, and not the experiences of women of color or the LGBTQIA+ community. But it is necessary to include intersectionality while discussing sexual harassment and street harassment—to discern the particularized, variegated experiences of all—if we are to devise effective policies going forward.

Before the United States began to address sexual harassment legally and culturally, it was considered trivial or “natural and inevitable.”21 Many Americans have always thought this way (and continue to).22 That logic has led some, who were alleged to have committed sexual harassment and sexual violence, to be placed into—or allowed to remain in—the most powerful political, media, academic, and corporate positions in the country: current Supreme Court Justices Clarence Thomas and Brett Kavanaugh,23 President Bill Clinton,24 CBS president, chairman, and CEO Leslie Moonves,25 and Yale professor and philosopher Thomas Pogge,26 to name just a few. However, activists, educators, researchers, and experts have tirelessly worked to eradicate this belief and advocate destroying the power imbalances that exist within society that lead to sexual violence.

B.     Defining Street Harassment

How does one define street harassment? Street harassment has no universal, one-size-fits-all definition, and many scholars and organizations have attempted to define it. Street harassment, however, should not be described merely as catcalling or hassling remarks, labels which understate victims’ experiences of non-verbal street harassment. Experiences of street harassment are variable and context-sensitive, like sexual harassment, resulting in the difficulty of defining and labeling the issue. Research, studies, and statistics typically define street harassment in binary terms (e.g., man, woman) and focus on the experiences of white, heterosexual, and cisgender individuals, failing to take into account intersectionality and non-privileged individuals’ experiences. Discussed below, one element of street harassment is sexual- or gender-motivated acts. However, these sexual- or gender-motivated acts do not exist in a vacuum; they are intertwined with other identities such as race, class, ability, or religion, making street harassment individualized, not monolithic.

1.     Researchers’ and Experts’ Definitions

Scholars and researchers have attempted to articulate some means of defining street harassment. Holly Kearl discusses the problems that arise from not having a clear definition of street harassment:

Problems without names tend to stay hidden and inadequately addressed. I use “street harassment” to describe gender-based harassment in public spaces because it is the one most commonly used by academics and activists, but there is no universally used name or term for it . . . . Street harassment is not a term commonly used, it cannot be found in a dictionary, and not even everyone who writes about it or works to end it defines it the same way.27

Street harassment is a product of power.28 Stop Street Harassment, a nonprofit organization, uses a definition that encompasses the nuances of street harassment29:

[U]nwanted interactions in public spaces between strangers that are motivated by a person’s actual or perceived gender, sexual orientation, or gender expression . . . . [It] can take place on the streets, in stores, on public transportation, in parks, and at beaches. It ranges from verbal harassment to flashing, following, groping, and rape.30

Olatokunbo Olukemi Laniya specifically notes that “socio-cultural power dynamics [are] present” during street harassment.31 Laniya focuses on the fact that street harassment “is not intended to spark conversation or mutual interaction.”32 For example, “comments such as ‘Hey, cunt,’ and gesticulations of private parts certainly would not move most . . . to engage in conversation with the [harasser].”33 Deirdre Davis deems street harassment a form of spirit murder.34 “[S]pirit murder is . . . made up of micro aggressions, ‘[h]undreds, if not thousands of spirit injuries and assaults—some major, some minor—the cumulative effect of which is the slow death of the psyche, the soul and the persona.’”35 “[M]icroaggressions are brief, everyday exchanges that send denigrating messages to certain individuals because of their group membership.”36

Law professor Cynthia Grant Bowman additionally defines street harassment as an “intru[sion] or [an] attempt to intrude upon the [individual’s]37 attention in a manner that is unwelcome to the [individual], with language or action that is explicitly or implicitly sexual.”38 In addition, people “report[] a . . . variety of experiences with sexually suggestive speech in public places.”39 These definitions all agree that street harassment encompasses harmful and unwelcome interactions between strangers and do not focus on the traits of the victim.

2.     Categories of Street Harassment

There are different types of street harassment. Sociology professor Carol Brooks Gardner breaks down street harassment victims’ differing experiences into three distinct categories: (1) access information intrusions; (2) exploitations of presence; and (3) street remarks.40 Understanding the differing categories of street harassment is necessary to clarify the scope and context of needed relief and policy reform.

i.     Access Information

First, access information street “harassment is a [harasser’s] attempt to gain . . . information about [individuals’] future whereabouts.”41 A harasser attempts to gain this information to know the target’s “immediate or ultimate destination . . . where the individual can later reliably be found.”42 People want to protect this personal information—names, addresses, phone numbers, or where they work—and rightfully so. If and when harassers obtain their target’s information, the harasser might show up at their job, the corner of the street on which they live, or their regular grocery store. Access information street harassment can be dangerously consequential, which is discussed infra in Section II.E.

ii.     Exploitations of Presence

Second, exploitations of presence street harassment is “the physical harm or body violation . . . from [an] unwelcome touch or caresses, or the intimations of physical intrusion that come from protracted scrutiny or trailing.”43 This type of street harassment is often accomplished with an intent “to disrupt [an individual’s] exterior calm,” implicitly suggesting the harassment victims have no right to come off as dignified.44 For example, public exploitations may involve a prolonged gaze, a gesture, “and nonverbal assessments like lip-smacking and wolf-whistles.”45 Other instances involve the harasser’s attempt to impede the individual’s path, throwing an object, following, or stalking.46 A victim may be followed either “with no word[s] exchanged, or” after “a street remark or greeting.”47 It is an attempt to trap or confine the person—to hold them hostage.

Another common type of exploitation is touch: grabbing a hand, pulling hair, groping, trying to hug, or any other unwelcomed touching. A harasser’s touch affirms the belief that certain bodies are mere objects for either display or targeting.48 For example, in December 2019, a street harassment incident went viral. Broadcaster Alex Bozarjian was reporting on a local marathon when a male runner approached her from behind and slapped her buttocks.49 The interaction was caught on live television, and the perpetrator was charged with sexual battery.50

iii.     Street Remarks

The third type of street harassment is street remarks. Street remarks frequently focus on a person’s appearance or exposure, which “reinforces the right of all [harassers] to be rightful proprietors and legitimate commentators in public.”51 Examples include phrases like, let me see you smile or you’re really pretty. Street remarks can be subjectively flattering, derogatory or menacing:

“No one has to know, sweetheart, you look 18.”52

“Oh come on back here . . . you’re sexy!”53

“I’m gonna f*ck your corpse.”54

“Hey beautiful! . . . oh wait. That’s not a woman!”55

3.     Commonalities of Street Harassment Experiences

The differing opinions of what defines street harassment, as well as the differing types of street harassment, show the need for a clear, articulate, and encompassing definition to be used both by society and the law. The definitions and circumstances provided above lead to specific commonalities of street harassment: (1) sexually- or gender-motivated acts “connected to broader systems of patriarchy, racism, and homophobia”;56 (2) unequal power dynamics between strangers;57 (3) situational disadvantages;58 and (4) occurring in public.59 Unequal power dynamics and the locations of street harassment are discussed in the following Sections.

C.     Locations

Street harassment does not occur solely on the streets; it occurs in the public. But what is considered public? Public is both an adjective (“accessible to or shared by all members of the community”) and a noun (“a place accessible or visible to the public”).60 Professor Gardner’s research elaborates that public places are “those sites and contexts that our society understands to be open to all; our characteristic behavior and appearance for public places do and are meant to vary from those for private dwellings.”61 Gardner also highlights that street harassment can occur in “semipublic places such as [work, school,] restaurants, stores, newsstands, and other service establishments.”62 Despite this, many individuals report experiencing street harassment in “the most public contexts—the street, parks, recreation spots, byways and alleys.”63

In particular, people often experience street harassment while exercising outside.64 Mollie Tibbetts, for example, was a University of Iowa undergraduate student out for a jog who was later found brutally murdered.65 Tibbetts’ attacker began following her in his car.66 He then got out of his car and began running alongside Tibbetts—an example of exploitation of presence street harassment.67 Approximately one month later, Tibbetts’ body was found in a cornfield outside of her hometown of Brooklyn, Iowa.68

D.     Differing Interpretations

Some people think street harassment is harmless; some find it frightening or a serious breach of civil inattention. Sociologist Erving Goffman coined the term civil inattention, explaining it as “the practice employed when strangers pass by one another and politely ignore each other.”69 When strangers engage with one another, it is considered a breach of civil inattention.70 The breach could be brief and typically innocuous, such as asking a stranger for directions,71 or could be overtly incendiary, such as a stranger making lewd remarks to a passerby. Goffman believes that there are unspoken public rules: Citizens do not collide with, confuse, or assault one another.72 Civil inattention recognizes the idea of personal integrity.73 Conversely, Micaela di Leonardo believes that “badinage, the friendly give-and-take which often gives us a sense of human warmth and validation of our attractiveness,”74 is an exception to civil inattention. Di Leonardo argues badinage is different, because an individual can end it on their own terms, “a mutually agreed-upon interaction.”75 However, street harassment is not badinage because it is not a friendly, innocent interaction that people can start and end on their own terms. Although some people consider breaches of civil inattention as innocuous, particularly if comments from strangers sound like a “compliment,” or are “pleasant or flattering,” many individuals perceive “any sort of speech from a stranger in a public place, no matter how well intended, . . . as offensive and . . . threatening.”76 Even if a stranger seems innocent enough, these seemingly “‘normal’ interactions with ‘normal’ people can lead to something more insidious,”77 and people often “classify any [street] harassment as abuse preceding rape or [a] violent crime.”78

Unsurprisingly, many people underestimate the frequency and severity of street harassment.79 Perhaps the reason for this is because people recognize neither the nuances of street harassment nor the microaggressions that marginalized victims face daily. The behaviors that amount to street harassment are normalized or justified—boys will be boys, or it was a compliment—so they are not counted correctly. For example, in 2014, CNN broadcaster Fredricka Whitfield hosted a debate between stand-up comedian Amanda Seales and author Steve Santagati in the wake of a viral catcalling video.80 As Seales expressed her frustration with her own street harassment experiences, Santagati interrupted her, stating, “The bottom line is this, ladies. . . . There is nothing more tha[t] a woman loves to hear than how pretty she is.”81 Santagati continued, arguing that women simply want men to bolster their confidence.82 Situations like these depict society’s subjective views on street harassment.

E.     The Harmful Effects of Street Harassment

Street harassment is injurious. Victims of street harassment can suffer a variety of physical, intellectual, economic, and mental harms. For instance, physical harms “may include nausea, vomiting, irregular breathing, shaking, muscle tension, numbness, dizziness, increased heart rate, and other physical stress responses.”83 Both victims and individuals who wish to avoid street harassment often alter their appearance and clothing choices to avoid attention, such as wearing sunglasses or a scarf so the harassers “ha[ve] less access to their reactions,”84 or “cover[ing] a specific [religious] identity trait to appear inconspicuous.”85 Victims may also be compelled to change regular daily traveling routes or make decisions like whether or not to walk on a specific street or use public transportation. “[S]treet harassment infringes upon the social rights of [individuals]”86 because they are denied the “free exercise of mobility.”87 Individuals may feel forced to stay in the privacy of the home if their mobility is hindered by harassers. Instead of exercising the liberty to move about freely, victims are often required to “negotiate the terms and conditions upon which they may enter [the public].”88 In Erving Goffman’s book, The Presentation of Self in Everyday Life, he explains how individuals calculate the manner in which they appear or express themselves in public, whether consciously or unconsciously, in order to elicit “a specific response [they are] concerned to obtain”—namely, avoiding street harassment.89

An individual’s response to street harassment can have severe consequences. Certain people avoid confrontation or do not want “to draw attention to themselves or to be displeasing.”90 For instance, some victims pretend to ignore the harasser by keeping their head down, “deny[ing] a [harasser] the satisfaction of that particular [comment].”91 This response may further irritate the harasser and lead to more threatening comments and actions.92 However, perpetrators may act violently towards victims who confront them, responding with aggressive comments and actions—even death.93 A victim may also respond physically and engage in self-defense. Despite the victim’s often justifiable self-defense, “many women and gender nonconforming people are in prison for defending themselves against their abusers”—also known as “the criminalization of survival.”94

Street harassment’s psychological harms are perverse, and victims tend to negatively internalize the experience, leading to subsequent mental and physical harm. Fear and shame are common “emotional or affective” responses to street harassment.95 For example, many victims fear that street harassment precedes more violent sexual conduct, such as rape.96 “[S]ome rapists [even] use street harassment as [a test] . . . to determine how much a [person] may resist . . . [the] attacker.”97 The Ninth Circuit reaffirmed why certain individuals fear this violence:

[People] who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. [Certain individuals], who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that [marginalized communities] may perceive.98

Street harassment victims can also suffer economic harms. Some individuals no longer pursue jobs “such as street vending or construction work,” because of previous or potential street harassment experiences.99 Additionally, street harassment can disrupt a person’s economic well-being in other ways. Many are not afforded the luxury to travel privately to their place of work, and instead, they must rely on public transportation or walking. “[S]treet harassment can instantly shatter a [person’s] feelings of confidence, professionalism, and control,” which can negatively affect one’s job performance.100

Furthermore, a street harasser’s language and conduct may also impact a victim’s perception of themself. Because harassers often comment on a victim’s body or appearance, a victim may subsequently monitor their body self-consciously and shamefully.101 Such internalization of the “harassers’ perceptions of their bodies”102 leads to a victim’s “lower[] self-esteem, vulnerability, and . . . decreased sense of personal safety.”103 Perpetrators use street harassment to teach the victim “to associate emotions of humiliation and powerlessness with [their] identity as a sexual being. Thus, a [victim] is taught to accept, and silently endure, injuries as a definitional part of [their] sexuality.”104 A harasser subjects their victims to all forms of control, fear, and shame that may create irreversible impacts.

F.     A Brief Introduction to the History of Street Harassment

Street harassment is not a new phenomenon. But open acknowledgment of the issue has become more prevalent with the #MeToo era105 and the rise of social media, after which individuals can immediately share their stories to large audiences. This Section discusses street harassment’s history, including the United States’ history of misogyny and subordination, why there is minimal street harassment case law, and how social movements changed public consciousness.

Since its founding, the United States has developed under an umbrella of patriarchy, including the English common law of “coverture,” in which women were denied legal identity and rights.106 Coverture prevented women from entering into contracts or obtaining property rights; independent women were an anomaly.107 Blackstone’s Commentaries explained that upon marriage, “the very being or legal existence of the woman [wa]s suspended,”108 which in turn validated the wife as the husband’s possession. Enslaved women were literal property, and white men treated them as their sexual property.109 Marital rape laws ensured rape was not “a violation of [the] wom[a]n, but . . . a property crime.”110 In the nineteenth century, every state passed a version of the virtue-signaling Married Women’s Property Acts, which boasted women’s reform but essentially changed nothing.111 The legal origins of the American woman demonstrate the laws and norms that obstinately perpetrated centuries later.

Historians have traced street harassment to as early as the nineteenth century, but street harassment—and most forms of sexual violence—was rarely brought before a court. As a consequence, there are few judicial opinions on the subject from then until the modern century.112 This is likely due to the belief that a street harassment charge would be dismissed on (1) procedural or substantive grounds,113 or (2) First Amendment grounds.

It wasn’t until the mid-nineteenth-century that women were granted the right to sue on their own behalf for damages relating to sexual injuries.114 Before, the fathers and husbands had standing to sue, not the victim.115 Once women were able to sue, any violence experienced outside of the household was not punishable,116 and the law assumed any sexual act between the woman and the perpetrator was consensual.117 By reason, women “could not go forth in the world, or [else] they would lose” any semblance of legal protection.118 Logically, a street harassment case would not even make it past an indictment.

In regard to the First Amendment, however, scholars have opined that street harassment regulations would likely survive First Amendment scrutiny.119 Consider some of the common acts that harassers employ: assault, intentional infliction of emotional distress, defamation, fighting words, true threats. Those acts are neither protected by the First Amendment nor an established exception.120 Even if a harasser’s speech is initially protected, scholars have argued, for example, that a court may find the speech to be low-value or restricted under the captive audience or secondary effects doctrines, which are well-known exceptions to the First Amendment.121 Professor Bowman maintains that states have a compelling interest in regulating harassers’ speech: “the security, liberty, and equality of women.”122

First Amendment ramifications aside, the second-wave feminist movement sparked public dialogue about the frequency and regularity of street harassment.123 As more women were leaving the home for the workforce, requiring them to be present in public—leaving behind their indoctrinated private spheres—“[h]arassment may also have become more offensive and frequent.”124 Professor Gardner attributes this spike in harassment again to the patriarchal, chattel belief that women were violating historic social norms and “that a woman’s unchallenged female self is still located in the home.”125

Fast forward to the twenty-first century—these norms and incidents still exist. The #MeToo movement sparked a greater focus on sexual violence, including street harassment. In 1997, survivor and activist Tarana Burke first used the phrase “Me too.”126 Burke is the creator and champion of the #MeToo movement, which gained nationwide attention in 2017 with the accusations against now-convicted serial predator Harvey Weinstein.127 The #MeToo movement holds perpetrators of sexual violence (including street harassment, sexual assault, sexual battery, sexual harassment, and sexual misconduct) accountable and allows individuals to reclaim the narratives of their experiences.128 Jodi Kantor and Megan Twohey, the New York Times journalists who first broke the Weinstein story, expressed that #MeToo has led to “a new sense of accountability . . . and the feeling of rapidly shifting social standards.”129 #MeToo has generated universal conversations about sexual violence and has forced those who did not know about its prevalence, or those who merely dismissed it, to be reminded that sexual violence, in its myriad of forms, occurs with alarming regularity and is committed by a diverse range of perpetrators.

Increased awareness about street harassment, advanced technology, and the efforts of national advocacy organizations (like Stop Street Harassment and Hollaback!) have led to new safety and accountability measures for victims of street harassment. For example, Hollaback!’s smartphone app allows users to upload a picture of their harasser, describe the incident, and identify the location, which permits other app users to view a map of when and where the harassment occurred.130 Additionally, the Noonlight smartphone app functions as a panic button, which alerts local emergency services of the user’s location.131 Uber and Lyft recently updated their apps to include safety features while riding, like sharing the rider’s location and route with friends or in-app 911 calls.132 Yet, while these technology services are extremely helpful toward offering some short-term protection, street harassment must be challenged on a systemic level to not only increase protection for victims, but also to change the behavior of perpetrators.

III.     What is Iowa Doing to End Street Harassment?

So, what is Iowa doing to end street harassment? The answer is: not much. Street harassment presents many harmful side effects to its victims, as discussed in Section II.E, and presents a conceivable need to criminalize this behavior. Iowa’s current criminal penalties, analyzed in Section III.A, such as assault, harassment, stalking, and indecent exposure, are not effective avenues for street harassment victims to find legal recourse. As a result, Section III.B examines an alternative approach taken by Washington, D.C.’s education-focused street harassment law.

A.     Current Street Harassment Remedies in Iowa

Since street harassment is so perverse, frequent, and traumatic, both victims and the public deserve legal and non-legal remedies to combat harassment. This Section discusses Iowa’s current statutory penalties that could apply to street harassment and their flaws. It also considers the Iowa Civil Rights Commission’s legally protected classes/areas and the associated shortcomings. As expounded upon in the following paragraphs, proving intent is a major hurdle in the current Iowa statutory penalties. If a victim is seeking to bring a legally cognizable claim against a harasser, they must prove that the harasser had the intent, as defined in said statute.133 Additionally, given how difficult it is to prosecute a sexual assault claim, why would a victim think a judge or jury would be receptive to a street harassment claim, especially if the harasser argues they only “complimented” the alleged victim?134

Assault. Under Iowa law, street harassment victims may be able to bring an assault claim against the harasser, but not without obstacles. Assault occurs when a harasser, “with the apparent ability to execute the act,” “intend[s] to cause pain or injury,” or “intend[s] [the act] to result in physical contact which will be insulting or offensive.”135 Assault can also occur when a harasser “intend[s] to place [a victim] in fear of immediate physical contact which will be painful, injurious, insulting, or offensive.”136 Iowa law explicitly defines assault as a general intent crime, theoretically requiring only the intent to commit the specific act, not the intent to cause a particular result.137

Yet, a victim bringing an assault claim may still face challenges proving the harasser’s intent. A study asked 60 street harassers why they harass others on the street, and the responses included anywhere from “alleviat[ing] boredom” to “[it] was ‘fun,’” to it “[gives] them a feeling of camaraderie with other men.”138 The two most common explanations offered by the surveyed street harassers were that they sought “to render a compliment or simply to enjoy[] . . . a sport that contributes to male-bonding.”139 Only a minority of the interviewed harassers admitted that they harass in order “to anger or humiliate their victims.”140 Because proving intent by direct evidence is challenging, adjudicators can infer intent to commit assault based on surrounding circumstances.141 However, this inference may not be reached given the pervasive culture around street harassment, as discussed in Part II.

Harassment. Victims may also seek legal redress under Iowa’s criminal harassment statute, but, again, there are significant limitations. Iowa’s harassment statute requires a harasser to “ha[ve] personal contact with another . . . with the intent to threaten, intimidate, or alarm that other person.”142 Personal contact, however, can simply “mean[] an encounter in which two or more people are in visual or physical proximity with each other.”143 Additionally, the Iowa Supreme Court held that a conviction of harassment can be upheld even if there were no verbal threats.144

As discussed above in regard to assault, victims will likely have trouble proving a harasser’s intent to satisfy Iowa’s definition of harassment. Harassment is a “[s]pecific-intent crime[] [which] require[s] the State to prove a [harasser’s] intent to complete some further act or achieve some additional consequence.”145 Yet, victims may have more success when trying to prove a harasser’s intent to annoy, as opposed to “intimidate[] or alarm,”146 through circumstantial evidence.147 For example, an “intent to annoy can be shown by one’s use of disparaging or profane remarks,”148 following a victim, or even confronting a “victim in a . . . parking lot . . . to examine her shoes.”149 In a harassment case before the Northern District of Iowa, however, the court even “decline[d] to infer an intent to harass” without “any allegations undermining [the accused’s] stated intent”—similar to the inference limitations in an assault case.150 In any case, proving intent for harassment is likely easier than the other Iowa statutes.

Stalking. Iowa’s stalking statute is also a problem for victims. Stalking is when a “person purposefully engages in a course of conduct . . . that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened.”151 “Course of conduct” “means on two or more occasions”; therefore, a victim of a single incident would not have redress under this statute.152 Like the other statutes, a stalking victim must prove a harasser’s intent. For these reasons, the stalking statute is not a workable solution.

Indecent Exposure. Lastly, an indecent exposure charge is not certain to succeed. The first element of indecent exposure requires the harasser to have “expose[d] [their] genitals or pubes to another . . . or . . . commit[ed] a sex act in the presence of or view of [another].”153 The second element requires intent to arouse either party or to know or reasonably know that the act is offensive.154 However, unlike the other criminal statutes mentioned above, caselaw precedent indicates that it is easier to prove intent for indecent exposure because the court will consider the “accused’s conduct, remarks, and all surrounding circumstances.”155 But, there is no guarantee the indecent exposure statute will be a feasible avenue for victims to win.

Overall, these four Iowa criminal statutes are insufficient to help victims of street harassment; the elements of the crimes are often too difficult for a victim to prove.

Iowa Civil Rights Act. Equally, redress under Iowa’s civil laws can be difficult. Some activists believe that civil rights laws should protect victims of street harassment—as well as sexual harassment.156 However, neither Iowa nor federal law provides a civil remedy for street harassment, let alone discrimination committed by a private individual.157 The Iowa Civil Rights Act of 1965 prohibits discrimination in public accommodations and services, employment, education, housing, and credit on the basis of sex, sexual orientation, and gender identity, among others.158 But a street harassment victim may only receive legal redress when the harasser is an owner, manager, agent, or employee of the establishment or facility where the harassment occurred.159 Therefore, victims presumably cannot seek redress against a private individual-harasser.

B.     Examining Washington, D.C.’s Street Harassment Law

This Section examines Washington, D.C.’s unprecedented approach to end street harassment. In October 2018, Washington, D.C. passed a historic law: the Street Harassment Prevention Act (“SHPA”).160 The statute, however, does not criminalize street harassment—at least not yet. Instead, the SHPA focuses on the prevention of street harassment. The statute created a street harassment advisory committee comprised of 17 members from city offices and departments161 that will conduct a survey on street harassment’s frequency162 and submit a report to the mayor and council “[p]ropos[ing] model policies and training materials . . . for preventing and responding to street harassment.”163 The SHPA also requires the advisory committee to create a public awareness campaign and assess the channels that victims and bystanders can use to report street harassment.164

D.C.’s street harassment law is the first in the nation to “legally define[] street harassment, the first citywide data collection on the issue in the US and the first law to address the issue without criminalization.”165 The SHPA defines street harassment as “disrespectful, offensive, or threatening statements, gestures, or other conduct directed at an individual in a high-risk area without the individual’s consent and based on the individual’s . . . protected trait identified”166 under D.C.’s human rights chapter.167 A high-risk area is thoroughly defined, including an “enclosed area within any Metrorail car,” an “enclosed area within any private vehicle-for-hire,” an “establishment that serves food or alcohol,” a “school, library,” or “publicly owned property.”168

Yet, notice that D.C.’s law does not criminalize street harassment. Legal scholar Deborah Thompson believes that criminal street harassment laws can give the police a tool to simply “harass the homeless, powerless, or otherwise oppressed.”169 Accordingly, D.C. Councilmember Brianne Nadeau avoided criminalization, reasoning instead that “any solution to the problem [of street harassment] shouldn’t be an excuse to disproportionately target . . . communities through criminalization.”170 D.C. policymakers were attuned to their constituents; discriminatory policing was an issue that the policymakers sought to avoid when creating the law.171

Additionally, D.C. policymakers likely focused the SHPA on prevention efforts—as opposed to criminalization efforts—because criminalizing street harassment may pose challenges to victims who report and want to prosecute the harasser.172 The very nature of street harassment is that it occurs between strangers. A victim of street harassment often does not know the identity of the perpetrator and consequently has no means to hold the perpetrator accountable.173 Victims tend to distrust the legal system and its enforcement mechanisms. Stop Street Harassment’s report described how countless victims reported street harassment to either law enforcement or public transit agents, but “they were [either] laughed at, further harassed, or told that what happened wasn’t illegal.”174 If the victim’s case results in a trial, judges and juries may hold biases against the victim or “have inaccurate understandings of . . . victim behavior.”175 Fact-finders and prosecutors tend to focus on the victim’s choices and actions rather than the harasser’s alleged conduct. The focus tends to be on the victim’s choices and actions rather than the harasser’s alleged conduct.176 While criminalization has obvious risks, D.C.’s response is incomplete.

Indeed, D.C.’s law is missing a critical component. Despite Councilmember Nadeau’s hopes that the law would empower residents “to feel safer on [D.C.’s] streets,”177 the SHPA failed to create or enhance victim resources and services. D.C.’s law seems more focused on preventing harassers’ behaviors, but, as discussed infra, victim resources can provide immense benefits.178

D.C.’s law is perhaps the only modern example of how to legally address street harassment while avoiding the negatives of criminalizing the conduct—including the difficulty involved with proving intent, increased arrests and incarceration, distrust in police and the legal system, and mistaken beliefs about a law’s deterrent effect179—especially since it has garnered massive support from both local organizations and citizens.180 In the spring of 2020, the D.C. Office of Human Rights released a report analyzing the impact of the SHPA’s first year.181 As of April 2020, the advisory committee surveyed 1,621 D.C. residents, finding 69 percent experienced verbal street harassment and 40 percent experienced physical street harassment.182 The survey exhibited the high-risk locations and which populations are frequent victims. The advisory committee conducted ten focus groups with vulnerable populations covering the impacts of street harassment, locations and times of most-experienced harassment, bystander intervention, and what victims need to feel safer.183 For example, when asked the question “When you have experienced street harassment, what would you want to happen?” the common responses were bystander intervention, ease of reporting, more street lighting or larger sidewalks, and free self-defense/self-assertion trainings.184 The advisory committee’s report indicated it will act on its recommendations for improved trainings for D.C. government employees (bystander training and online trainings), accessible reporting options for victims and witnesses, and government agency policies based on the evidence gathered.185

IV.     Iowa Should Adopt a Street Harassment Law

The Iowa Legislature should adopt a street harassment law with a focus on prevention education in order to address both the extensive harms that victims face and prevent harassers’ behavior. Section IV.A introduces the proposed law the Iowa Legislature should adopt. The proposed law defines both street harassment and public area. It then creates an Advisory Committee comprised of Iowa agency directors, commissioners, and administrators, and community representatives with the power to recommend a method for prevention education, conduct a state-wide survey and community safety audits, train police, transit workers, and businesses, and partner with two Iowa organizations to provide and advertise victim resources. Section IV.B discusses the arguments against the law, including potential conflicts with the First Amendment, interference with personal lives, victim survey errors, and how prevention education may not work. Section IV.C discusses the benefits of the law, including society’s trust in education and training, raising public and personal consciousness, empowering and respecting victims, and learning the frequencies, locations, and demographics of street harassment in the state.

A.     Proposed Iowa Law

Iowa should adopt a street harassment law partially modeled off of Washington, D.C.’s law because street harassment must be addressed on a “social, cultural and systemic” level.186 Note that this proposed law does not limit speech; it may tell you why some speech is problematic and it may let other people document where this problematic speech occurs. The law should, however, satisfy at least four key criteria.

First, the Iowa law must include a specific, all-encompassing definition of street harassment, taking into account the definitions of legal scholars outlined in Section II.B.1. The law should define street harassment as:

Any “disrespectful, offensive, or threatening statements, gestures, or other conduct directed at [one or more person(s)] in a [public] area without the [person(s)’] consent”187 and such conduct is based in part or in whole of the person(s)’ “actual or perceived”188 gender, gender identity, gender expression, or sexual orientation.

Second, the law should clearly define “public area.” The term should be broadly defined to include:

(1) “A food service entity, . . . and any other establishment that serves food or alcohol;”189

(2) “Any school, library, or other building primarily used for the instruction of students, including a day care center, nursery, elementary school, secondary school, college, and university;”190

(3) “Any bank, health care facility, laundromat, retail store, shopping mall, sports arena, music venue, and theater;”191

(4) “All the publicly owned property between property lines shown on the records of the [State], including any roadway, sidewalk, or parking between such property lines;”192

(5) “All buildings or land that are owned, leased, or occupied by the [State] government;”193

(6) “The enclosed area within any [public transit] car, []bus,” train, private vehicle-for-hire, or public vehicle-for-hire;194 and

(7) “The area within 25 feet of any [public transit] station, []bus stop, . . . or . . . [street] location designed for the loading and unloading” of passengers.195

Third, the law should create an Advisory Committee. The Committee would be comprised of the director of the Iowa Department of Human Services;196 the directors of the Offices of Latino Affairs, Status of Women, Status of Blacks, Asian and Pacific Islander Affairs, and Native American Affairs;197 the chairperson of the State Alcoholic Beverages Commission;198 the director of the State Food and Consumer Safety Bureau;199 a representative of the Human Rights Board;200 the administrator of the Mental Health and Disability Services Division;201 and the commissioner of the State Department of Public Safety.202 The Advisory Committee will also include five community representatives who engage in policy, advocacy, or direct services within Iowa related to gender-based violence, LGBTQIA+ rights, racial equity, religious tolerance, homelessness, and immigrant rights.203 The Advisory Committee shall be required to meet quarterly. The Advisory Committee must be comprised of the departments and organizations outlined above to ensure diverse perspectives and experiences in decision-making and implementation.

Fourth, within two years of the implementation of the statute, the Advisory Committee shall (1) recommend how street harassment prevention education shall take place, whether that be in schools (perhaps incorporated into sex education), the workplace, and/or a public information campaign;204 (2) conduct community safety audits in each county;205 (3) conduct a statewide survey in which victims and bystanders can report an incident by calling or texting a hotline;206 (4) create training materials and workshops for police, public transit workers, and local businesses;207 and (5) partner with the Iowa Victim Service Call Center,208 the Iowa Coalition Against Sexual Assault,209 and Iowa’s public colleges and universities to advertise and provide resources for victims, including the reporting hotline. Additionally, it shall be the purview of the Advisory Committee to determine the Committee’s future goals, including recommendations and implementations of other avenues to develop victim resources and combat street harassment.

B.     Arguments Against the Proposed Law

This Note’s proposed law does not come without opposition. First, a likely challenge to the proposed law will be that it is at odds with the First Amendment.210 While legal scholars have opined that a street harassment law may survive the First Amendment,211 some individuals worry that it would create a “slippery slope” where if street harassment speech is restricted, other, more valuable types of speech will ultimately be restricted.212 Nielsen’s study concluded that even those who believe street harassment to be a serious problem still voice the First Amendment as “their primary concern.”213 “Even the victims of offensive speech are unwilling (or at least reluctant) to limit public speech because they recognize the value associated with allowing speech.”214 But, as mentioned above, Professor Bowman believes states have compelling interests in regulating street harassment speech.215 With that in mind, there is no clear answer to this contemporary issue, and it is unlikely we will find an answer soon.

Second, autonomy is another argument against a street harassment law. Some people “resist the intrusion of law into their lives. . . . [and] prefer to handle problems—even problems they regard as fairly serious—on their own.”216 Some simply “prefer to control the situation” themselves due to the apprehension of being labeled as a victim or being perceived as weak.217 Although victims admitted that they suffered harm when experiencing street harassment, some argue that they would rather “stand up for [themselves], rather than rely on state intervention.”218 Nielsen believes that victims may think differently about seeking legal recourse if a street harassment law actually exists and works in their favor without any backlash.219 However, this proposed law will not intrude into private individuals’ lives, nor will it require victims to seek legal redress. Instead, the proposed law will focus on education, training, and victim support.

Third, studies on sexual violence prevention education can show unconvincing and inconclusive results. Some studies have “detected no reduction” in attitudes.220 Some “found changes in female attitudes only” while others found changes “amongst men generally.”221 Additionally, a 2008 study found that participants’ changed attitudes regarding sexual violence (studied immediately after the education program) ultimately returned back to their previous attitudes (prior to the education program).222 This Note’s proposed prevention education programs will seek to employ successful study techniques, discussed in the following Section.

Finally, victim surveys may be unreliable. According to criminologist James Lynch, victim surveys pose “three major disadvantages”—sampling error, lack of representative data, and lesser prevalence.223 Victim surveys may inadvertently exclude individuals from the sample, such as homeless persons if the survey is sent out via address lists.224 But, surveys try to combat this issue “by weighting or imputing the data.”225 Weighting or imputing the data “rest[s] on the assumption that persons in the sample have the same victimization experience,” which is not the case with street harassment.226 Lastly, victim surveys will not account for everyone,227 but this Note’s proposed solution employs previously-successful street harassment survey techniques.228

C.     Benefits of the Proposed Law

Education-based remedies, such as Iowa’s proposed law, can lead to significant, positive change. “Street harassment . . . is learned behavior” that must be unlearned.229 Criminalizing street harassment seeks to only reprimand the retrospective behavior; it “cannot undo what has been done.”230 Private individuals are also more willing to support education-based remedies. In multiple studies conducted by Holly Kearl, the most common recommendation to stopping street harassment was education.231 Education, unlike a criminal law,232 can serve as a deterrent; it can teach individuals how to respect others and “appropriately interact with [others] in public,” as well as arm those individuals with tools and tricks to educate others about street harassment.233 Teaching others will “raise consciousness about the severity of the problem.”234 Education can also encourage bystanders to intervene if they have strategies to use when witnessing street harassment.235 The Centers for Disease Control and Prevention found that bystander programs have reduced sexual violence.236 Additionally, Bianca Fileborn’s research proved street harassment bystander intervention generally resulted in positive outcomes.237 Effective sexual violence prevention education should (1) promote awareness and knowledge; (2) debunk myths and violence-supportive attitudes; and (3) teach alcohol consumption’s adverse effects, successful self-protection strategies, reporting, and health care-based interventions—all of which the Advisory Committee should consider while planning the programs.238

Education can empower victims, as well as change harassers’ beliefs. Educational programs can teach victims “that street harassment is not their fault,” as well as provide ideas on how to deal with harassment, including verbal response techniques, how to report the incident, and how to identify situations in which they have been harassed.239 Education can alter harassers’ and bystanders’ opinions about sexually violent behavior.240 Studies show intervention-education techniques “can have a positive effect on sexual choices and behavior.”241 This idea of “[p]ublic struggle is a key way to change dominant ideologies . . . , and thus an important device for achieving the generational changes that are essential if real progress is to occur.”242 As a result, rates of offenses and victimization may decrease.243

Street harassment education, however, does not need to mirror that of a classroom. Street harassment education could occur through the media, in advertisements, newspaper reports, and television commercials, as well as posters or signs in public locations, as suggested in the proposed law.244 Print materials have proven effective—individuals read them.245 Thompson suggests that “[t]ransit authorities could add posters explaining the anti-harassment regulations next to the signs that read ‘No pets,’ ‘No loud radios,’ and ‘No eating or drinking.’”246 Additionally, workplaces that are open to the public—construction sites, restaurants, bars, post offices, and the like—could place signs that read, “If [an employee] harasses you, call 1-800-555-1212.”247 A “Harassment Hotline” of sorts would inform others that harassment is not tolerated.248

With an Advisory Committee survey, Iowa will be able to adequately address the needs of its citizens with statistics on the frequency, locations, harms, and demographics of street harassment. A survey is beneficial since the data is “collected on an incident or individual basis,” which leads to a disaggregation of crime incidents and accounts for victims’ variable experiences.249 In addition, victim surveys allow respondents the opportunity to “report on a variety of crime-related behaviors and sentiments relevant for crime and responses to crime.”250 These statistics will allow Iowa agencies and organizations, who would partner with the Advisory Committee, to effectively pass measures that can alleviate street harassment’s omnipresence, create victim support, and allow for a better understanding of victims’ needs and resources. Adequate resources will provide the victims with healing and remedial measures. When victims are aware of their rights and resources, they will hopefully no longer feel the need to handle the experience alone.

Likewise, creation of more victim resources and assistance is beneficial. As already discussed, street harassment victims suffer from a multitude of harms. Iowa’s proposed law requires the Advisory Committee to partner with specific state organizations to provide street harassment-specific resources and a reporting hotline for victims. “Research has demonstrated that providing trauma-informed services and support that recognize the impact of trauma on victims can improve victim outcomes.”251 Crisis intervention is beneficial for trauma victims; it “can lead to early resolution of acute stress disorders” and “help[s] individuals take concrete steps toward managing their feelings and developing action plans.”252 Additionally, it may prevent future harmful situations253 and provide “new coping skills, stronger social support, and stronger well-being.”254 Victims can work “to reclaim their lives.”255 Victim assistance programs also benefit the community at large with cost savings and increased feelings of public safety.256 Furthermore, many victims of sexual violence prefer assistance when it encompasses peer support, centralized resources, validation, agency, and confidentiality.257

V.     Conclusion

Indeed, the greatest value in proposing regulation of street harassment might well lie in the discourse surrounding the proposal. By enriching public understanding of the harm of street harassment, shaping the consciousness of [the public,] . . . making socially unacceptable a practice previously ignored, . . . we will have done much to advance the cause of justice.258

Street harassment is an issue that has been, and continues to be, both normalized by society and ignored by law. The pervasiveness, the frequency, and the harmful effects of street harassment can no longer be overlooked. While criminalizing the behavior is often thought as the first step toward prevention, statistics and surveys show the pitfalls associated with such an assumption.259 Creating an education-focused law is currently the best option for Iowa, as it will allow state officials and citizens to understand the issue and implement much-needed remedies. The Iowa Legislature must take action and pioneer a law that legally defines street harassment, provides victim resources, and decreases harassment.

  1. [1]. Chanel Miller, Know My Name 81 (2019).

  2. [2]. Alexis Okeowo, Hate on the Rise After Trump’s Election, New Yorker (Nov. 17, 2016), https://www.newyorker.com/news/news-desk/hate-on-the-rise-after-trumps-election [https://
    perma.cc/BTT9-679Y].

  3. [3]. Holly Kearl, Stop St. Harassment, Unsafe and Harassed in Public Spaces: A National Street Harassment Report 13–17 (2014) [hereinafter Kearl, Unsafe and Harassed].

  4. [4]. See infra note 6 and accompanying text.

  5. [5]. Kearl, Unsafe and Harassed, supra note 3, at 8.

  6. [6]. G.A. Res. 217 (III) A, Universal Declaration of Human Rights arts. 3, 12, 13 (Dec. 10, 1948); G.A. Res. 2200 (XXI) A, International Covenant on Civil and Political Rights arts. 9, 12, 17 (Dec. 16, 1966); G.A. Res. 2200 (XXI) A, International Covenant on Economic, Social and Cultural Rights arts. 2, 3, 15 (Dec. 16, 1966). See generally G.A. Res. 34/180, Convention on the Elimination of All Forms of Discrimination Against Women (Dec. 18, 1979) (concerning civil rights, legal statuses, reproduction rights, and culture). The United States has had a general lack of enagement with these conventions, but these are rights the United States also values and protects via domestic statutes.

  7. [7]. This Note uses the term “victim” to describe people who have been subjected to street harassment. While the term “victim” may have a negative connotation, I want to emphasize that using this term implies a legal status, and not a label. For a more in-depth discussion of
    using the terms “victim” or “survivor” in legal contexts, see generally SAKI: Sexual Assault Kit Initiative, Victim or Survivor: Terminology from Investigation Through Prosecution.

  8. [8]. Sexual Harassment, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/
    laws/types/sexual_harassment.cfm [https://perma.cc/C5DZ-T5SX].

  9. [9]. Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (2018)).

  10. [10]. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65–66 (1986).

  11. [11]. Id. at 65 (alteration in original) (citation omitted).

  12. [12]. Reva B. Siegel, Introduction: A Short History of Sexual Harassment, in Directions in Sexual Harassment Law 2 (Catharine A. MacKinnon & Reva B. Siegel eds., 2004).

  13. [13]. Louise F. Fitzgerald, Who Says?: Legal and Psychological Constructions of Women’s Resistance to Sexual Harassment, in Directions in Sexual Harassment Law, supra note 12, at 94.

  14. [14]. Lea VanderVelde, Coercion in At-Will Termination of Employment and Sexual Harassment, in Directions in Sexual Harassment Law, supra note 12, at 511 n.14.

  15. [15]. Siegel, supra note 12, at 1.

  16. [16]. Id. at 9.

  17. [17]. Id. at 3.

  18. [18]. For a revolutionary discussion on intersectionality, see generally Kimberlé 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. Professor Crenshaw’s work is inspired by critical race theory, race, and gender.

  19. [19]. Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1242 (1991). In Professor Crenshaw’s article, she explores how violence against “women of color [is] frequently the product of intersecting patterns of racism and sexism.” Id. at 1243.

  20. [20]. Crenshaw, supra note 18, at 140.

  21. [21]. Siegel, supra note 12, at 11.

  22. [22]. See, e.g., Heather R. Hlavka, Normalizing Sexual Violence: Young Women Account for Harassment and Abuse, 28 Gender & Soc’y 337, 339 (2014) (“Young people are socialized into a patriarchal culture that normalizes and often encourages male power and aggression .... As men’s heterosexual violence is viewed as customary, so too is women’s endurance of it.” (citation omitted)).

  23. [23]. See Grace Panetta, Here’s What Happened the Last Time a Supreme Court Nominee Was Accused of Sexual Misconduct, and How It Compares to Now, Bus. Insider (Sept. 27, 2018, 9:17 AM), https://
    www.businessinsider.com/anita-hill-christine-blasey-ford-comparison-brett-kavanaugh-clarence-thomas-2018-9 [https://perma.cc/WM42-V8HL].

  24. [24]. See Megan Garber, Bill Clinton Feels His Own Pain, Atlantic (June 4, 2018), https://
    www.theatlantic.com/entertainment/archive/2018/06/bill-clinton-feels-his-own-pain/561956 [https://perma.cc/KD7A-RG3U].

  25. [25]. See Ronan Farrow, As Leslie Moonves Negotiates His Exit From CBS, Six Women Raise New Assault and Harassment Claims, New Yorker (Sept. 9, 2018), https://www.newyorker.com/news/
    news-desk/as-leslie-moonves-negotiates-his-exit-from-cbs-women-raise-new-assault-and-harassment-claims [https://perma.cc/K8UB-9TNE].

  26. [26]. See Colleen Flaherty, Separating the Philosophy from the Philosopher, Inside Higher Ed (Aug. 3, 2016), https://www.insidehighered.com/news/2016/08/03/philosophers-move-limit-alleged-harassers-influence-within-discipline [https://perma.cc/4UMA-A9UD].

  27. [27]. Holly Kearl, Stop Street Harassment: Making Public Places Safe and Welcoming for Women 5 (2010) [hereinafter Kearl, Making Public Places Safe].

  28. [28]. See Laura Beth Nielsen, License to Harass: Law, Hierarchy, and Offensive Public Speech 27, 35, 37 (2004) (ebook) [hereinafter Nielsen, License to Harass].

  29. [29]. See Kearl, Unsafe and Harassed, supra note 3, at 1, 5.

  30. [30]. Id. at 5.

  31. [31]. Olatokunbo Olukemi Laniya, Note, Street Smut: Gender, Media, and the Legal Power Dynamics of Street Harassment, or “Hey Sexy” and Other Verbal Ejaculations, Colum. J. Gender & L., 2005, at 91, 101.

  32. [32]. Id.

  33. [33]. Id.

  34. [34]. Deirdre Davis, The Harm That Has No Name: Street Harassment, Embodiment, and African American Women, 4 UCLA Women’s L.J. 133, 176 (1994) (citing Patricia Williams, Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law’s Response to Racism, 42 U. Mia. L. Rev. 127, 151 (1987)).

  35. [35]. Id. (third alteration in original) (quoting Adrien Katherine Wing, Brief Reflections Toward a Multiplicative Theory and Praxis of Being, 6 Berkeley Women’s L.J. 181, 186 (1990)).

  36. [36]. Derald Wing Sue, Microaggressions in Everyday Life: Race, Gender, and Sexual Orientation xvi (2010).

  37. [37]. This Note will use non-binary and gender-neutral terms when referring to victims of street harassment, unless when quoting a source or discussing historical concepts. This Note uses non-binary terms to encompass the variety of identities that experience street harassment. Street harassment is not a “one size fits all” issue; it affects everyone. However, women, womxn, non-binary, genderqueer, femme, and LGBTQIA+ people are the most susceptible to be on the receiving end of street harassment, and those who are heterosexual, cisgender, white, and male are most likely to be on the giving end of street harassment. See Kearl, Unsafe and Harassed, supra note 3, at 13–16.

  38. [38]. Cynthia Grant Bowman, Street Harassment and the Informal Ghettoization of Women, 106 Harv. L. Rev. 517, 575 (1993). Street harassers use language such as

    references to male or female genitalia or to female body parts or to sexual activities, solicitation of sex, or reference by word or action to the target of the harassment as the object of sexual desire, or similar words that by their very utterance inflict injury or naturally tend to provoke violent resentment, even if the woman did not herself react with violence.

    Id.

  39. [39]. Nielsen, License to Harass, supra note 28, at 50.

  40. [40]. Carol Brooks Gardner, Passing By: Gender and Public Harassment 120 (1995).

  41. [41]. Id. at 121.

  42. [42]. Id. at 122 (defining “access information”).

  43. [43]. Id. at 132.

  44. [44]. Id. at 134.

  45. [45]. Id. at 133.

  46. [46]. See id.

  47. [47]. Id. at 137.

  48. [48]. See id. at 141. Nico Lang describes this behavior as “mantouching.” “It’s an assertion of one’s masculinity, at the expense of the personal comfort of those around you.” Nico Lang, John Travolta, Joe Biden, and Why Men Touch Women’s Bodies Without Asking, Daily Dot (Mar. 1, 2020, 9:09 AM), https://www.dailydot.com/unclick/mantouching-john-travolta-joe-biden [https://
    perma.cc/P896-GPXF].

  49. [49]. See Katie Mettler, A Reporter Blasted the Runner Who ‘Smacked My Butt on Live TV.’ Now He’s Banned from Future Races., Wash. Post (Dec. 9, 2019, 11:54 AM), https://www.washingtonpost.com/
    lifestyle/2019/12/08/reporter-blasts-man-who-slapped-her-butt-live-tv-you-violated-objectified-embarrassed-me [https://perma.cc/K3YA-SFNT].

  50. [50]. Doug Stanglin & Cydney Henderson, Runner Accused of Slapping Reporter’s Butt on Live TV Now Charged with Sexual Battery, USA Today (Dec. 14, 2019, 2:17 PM), https://www.usatoday.com/
    story/news/nation/2019/12/14/reporter-alex-bozarjian-slapped-thomas-callaway-charged-battery/2648801001 [https://perma.cc/Q3KM-PH9A].

  51. [51]. Gardner, supra note 40, at 147. For more examples of street remarks, see infra notes 52–55.

  52. [52]. Catcalls of NYC (@catcallsofnyc), Instagram (Aug. 31, 2019), https://www.instagram.com/
    p/B11ZXmIhpMc. Catcalls of NYC is an Instagram account sharing anonymous stories of catcalls the in New York City area. The project was created by Sophie Sandberg, “and she writes the comments at those same sites [where the harassment occurred] with brightly colored chalk.” Alexandra S. Levine, New York Today: Catcalling on Sidewalks, N.Y. Times (Oct. 3, 2018), https://
    www.nytimes.com/2018/10/03/nyregion/new-york-today-catcalling.html [https://perma.cc/
    ED4N-JAE4].

  53. [53]. Catcalls of NYC (@catcallsofnyc), Instagram (July 25, 2019), https://www.instagram.com/
    p/B0WcVjAhHJD.

  54. [54]. Catcalls of NYC (@catcallsofnyc), Instagram (Mar. 7, 2020), https://www.instagram.com/
    p/B9cek_XBCLz.

  55. [55]. Catcalls of NYC (@catcallsofnyc), Instagram (Sept. 2, 2019), https://www.instagram.com/
    p/B162GqQBore.

  56. [56]. Hawley G. Fogg-Davis, Theorizing Black Lesbians Within Black Feminism: A Critique of Same-Race Street Harassment, 2 Pol. & Gender 57, 74 (2006).

  57. [57]. However, women and minorities can be the harassers, too. Gardner, supra note 40, at 4, 9. “Often female harassment is milder; sometimes gender is the focus, but more often it is race or ethnicity, sexual preference, or disability.” Id. But see Davis, supra note 34, at 139 (“Women’s comments directed toward other women are not situated in the same place of power as are men’s comments.”).

  58. [58]. Gardner coined the term situational disadvantage—a way to describe how certain identities experience interactions in public. Gardner, supra note 40, at 44. Cierra K. Whatley elaborates:

    It is the idea that public places allow people to see strangers in categories rather than as individuals. Therefore, the average women of color walking down the street may be seen as her overall identity group (i.e. Black women, Asian women, etc.), rather than as an individual. As a result, the stereotypes associated with their group, may be employed by an individual to harass them. . . . Women of color are at higher risk for street harassment than are [w]hite women because of particularly sexualized stereotypes . . . .

    Cierra K. Whatley, Black Women’s Experiences with Street Harassment: A Qualitative Inquiry 21–22 (Aug. 2018) (Ph.D. dissertation, University of Akron) (citations omitted), https://etd.ohiolink.edu/!etd.send_file?accession=akron153685678409421&disposition=inline [https://perma.cc/6SPK-PQNG].

  59. [59]. Amanda Roenius, Note, My Name is Not “Beautiful,” and, No, I Do Not Want to Smile: Paving the Path for Street Harassment Legislation in Illinois, 65 DePaul L. Rev. 831, 837 (2016).

  60. [60]. Public, Merriam-Webster, https://www.merriam-webster.com/dictionary/public#examples [https://perma.cc/9V88-FBC8].

  61. [61]. Gardner, supra note 40, at 3.

  62. [62]. Id. at 55.

  63. [63]. Id. at 50.

  64. [64]. See Christine Yu, Women Deserve to Run Without Fear, Runner’s World (Oct. 10, 2019), https://www.runnersworld.com/women/a29356446/women-run-without-fear [https://perma.cc/
    9GA8-CF9J] (discussing stories of harassment while running). Furthermore, Runner’s World conducted a survey and found that 84 percent of women have experienced some form of harassment while running. Id. In summer 2019, a video depicting a jogger chasing after the man who flashed her went viral. Adrianna Rodriguez, Jogging Woman Chases Down, Attempts to
    Detain Man Who Flashed Her, Police Say
    , USA Today (July 26, 2019, 12:13 PM), https://
    www.usatoday.com/story/news/nation/2019/07/26/woman-chases-down-flasher-while-jogging-massachusetts/1835662001 [https://perma.cc/4P4W-G3GJ].

  65. [65]. John Bacon, Shelby Fleig, Michael James & Linh Ta, Undocumented Immigrant Charged with Murder in Killing of Iowa Student Mollie Tibbetts, USA Today (Aug. 22, 2018, 8:37 PM), https://www.usatoday.com/story/news/nation/2018/08/21/mollie-tibbett-iowa-students-body-found-media-reports-say/1050186002 [https://perma.cc/G83N-XXWQ].

  66. [66]. Id.

  67. [67]. Id.

  68. [68]. Id.

  69. [69]. Nielsen, License to Harass, supra note 28, at 38.

  70. [70]. Id.

  71. [71]. Id.

  72. [72]. See Niels Winther Braroe, Book Review, 75 Am. Anthropologist 945, 945 (1973) (reviewing Erving Goffman, Relations in Public: Microstudies of the Public Order (1971)).

  73. [73]. Id.

  74. [74]. Micaela Di Leonardo, Political Economy of Street Harassment, Aegis, Summer 1981, at 51, 52.

  75. [75]. Id.

  76. [76]. Nielsen, License to Harass, supra note 28, at 50.

  77. [77]. Id. at 52.

  78. [78]. Gardner, supra note 40, at 29 (citing Kamini Maraj Grahame, Sexual Harassment, in No Safe Place: Violence Against Women and Children (Connie Guberman & Margie Wolfe eds., 1985)); Braroe, supra note 72, at 945 (“[W]hether or not we are constantly in actual danger of self-injury, we are indeed always faced with potential danger, the possibility of it, and must be on guard against this.”).

  79. [79]. Nielsen, License to Harass, supra note 28, at 61. Thirteen percent of men think women hear sexually suggestive comments every day, and 19 percent of men think women receive such comments rarely. Id.

  80. [80]. See CNN, Catcall Video Goes Viral, YouTube (Nov. 2, 2014), https://www.youtube.com/
    watch?v=-HI4DC18wCg [https://perma.cc/GV98-ATEA] (discussing a video of a woman being persistently harassed as she walks through a city).

  81. [81]. Id. (quote at 02:30).

  82. [82]. Id. (quote at 02:39).

  83. [83]. Maeve Olney, Note, Toward a Socially Responsible Application of the Criminal Law to the Problem of Street Harassment, 22 Wm. & Mary J. Women & L. 129, 137 (2015); see also Davis, supra note 34, at 143 (explaining that “street harassment often forces [her] to rechannel [her] energies away from issues on [her] mind to the intrusive interaction, makes [her] lose [her] train of thought, and interrupts [her] thought process”).

  84. [84]. Gardner, supra note 40, at 205; see also Davis, supra note 34, at 145 (arguing that by forcing women to alter their behavior, street harassment “oppress[es] women by denying them the opportunity to make an ‘authentic choice of self’”).

  85. [85]. Khaled A. Beydoun, Faith in Whiteness: Free Exercise of Religion as Racial Expression, 105 Iowa L. Rev. 1475, 1520 (2020). Beydoun’s article describes “four types of religious identity performance[s]” which are used in “ways in which adherents of stigmatized religions negotiate and perform their religious identities in the face of religious bigotry or stigma.” Id. at 1518.

  86. [86]. Laniya, supra note 31, at 107.

  87. [87]. Id.; see Davis, supra note 34, at 142–43 (“Consequently, street harassment excludes women by institutionalizing male privilege in, and ‘ownership’ of, the public street and maintains and perpetuates the public/private distinction in a gendered form.”).

  88. [88]. Laniya, supra note 31, at 107; see Davis, supra note 34, at 144­–45 (discussing that street harassment is a form of oppression that denies individuals a freedom of choice).

  89. [89]. See Erving Goffman, The Presentation of Self in Everyday Life 3 (1956).

  90. [90]. Bowman, supra note 38, at 537.

  91. [91]. Gardner, supra note 40, at 208. Similarly, some victims claim this response is purposeful, “a management strategy of some power, allowing them to feel that nothing was happening even when experiencing something as momentous as being called a slut.” Id.

  92. [92]. See Bowman, supra note 38, at 525.

  93. [93]. See Fact Sheet: People Killed by Street Harassers, Stop St. Harassment, https://
    stopstreetharassment.org/resources/people-killed-by-street-harassers [https://perma.cc/9BYP-5DHF] (outlining a list of victims killed by street harassment perpetrators). In November 2019, a University of Illinois-Chicago student was sexually assaulted and murdered after ignoring a harasser’s catcalls. Grace Hauck, Chicago Woman Ignored Man’s Catcalls, So He Raped and Strangled Her, Prosecutors Say, USA Today (Nov. 27, 2019, 5:09 PM), https://www.usatoday.com/story/
    news/nation/2019/11/26/uic-student-ruth-george-ignored-cat-calls-murdered-chicago-man/
    4312847002 [https://perma.cc/GTD2-RHHW]. Black transgender women are disproportionately victims of lethal violence. Violence Against the Transgender Community in 2019, Hum. Rts. Campaign, https://www.hrc.org/resources/violence-against-the-transgender-community-in-2019 [https://
    perma.cc/M8W2-ATB9].

  94. [94]. Mariame Kaba, Black Women Punished for Self-Defense Must Be Freed from Their Cages, Guardian (Jan. 3, 2019, 6:00 AM), https://www.theguardian.com/commentisfree/2019/jan/03/cyntoia-brown-marissa-alexander-black-women-self-defense-prison [https://perma.cc/7DVZ-LQE2]; see also Kavita B. Ramakrishnan, Inconsistent Legal Treatment of Unwanted Sexual Advances: A Study of the Homosexual Advance Defense, Street Harassment, and Sexual Harassment in the Workplace, 26 Berkeley J. Gender L. & Just. 291, 327–28 (2011).

         Ramakrishnan explains how the LGBTQIA+ community and women of color’s responses may not be warranted as self-defense. For example, in August 2006, seven Black lesbians were harassed by a man: He followed them, used homophobic slurs, and grabbed his genitals. “[T]he women confronted him, [and] he spat at one of the women and threw a lit cigarette at them.” Ramakrishnan, supra, at 327. “A physical [attack] ensued” where the man choked one of the women, and she stabbed him. Id. at 327–28. Three of the women went to trial on counts of gang assault and attempted murder—all three were convicted for assault. Id. at 328. “At sentencing, the judge found that the women instigated the physical altercation because the harasser had merely been uttering words beforehand. The judge chastised [them] . . . for not walking away from the situation.” Id.

  95. [95]. Luna Dolezal & Barry Lyons, Health-Related Shame: An Affective Determinant of Health?, 43 Med. Humanities 257, 257 (2017); see Olney, supra note 83, at 137.

  96. [96]. Bowman, supra note 38, at 535; Kearl, Making Public Places Safe, supra note 27, at 30 (“One out of every six American women has been the victim of rape or attempted rape in her lifetime.”).

  97. [97]. Laniya, supra note 31, at 104; see also Bowman, supra note 38, at 536 (“If the target reacts in a passive fashion to the harassment, the rapist may assume that she will probably not fight back, and he is more likely to rape her. Thus, the connection between rape and harassment is not just in the mind of the woman.” (footnote omitted)).

  98. [98]. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991).

  99. [99]. Deborah M. Thompson, “The Woman in the Street:” Reclaiming the Public Space from Sexual Harassment, 6 Yale J.L. & Feminism 313, 323 (1994) (footnote omitted).

  100. [100]. Id. at 324–25.

  101. [101]. See Olney, supra note 83, at 137 (“[Victims] may internalize harassers’ perceptions of their bodies, articulated through sexual comments and gestures, and begin to see themselves the way they perceive that men see them.”).

  102. [102]. Id.

  103. [103]. Id. (footnote omitted).

  104. [104]. Laniya, supra note 31, at 103; see also Deborah Tuerkheimer, Street Harassment as Sexual Subordination: The Phenomenology of Gender-Specific Harm, 12 Wis. Women’s L.J. 167, 187 (1997) (“[Victims] learn to associate their bodies and sexuality with powerlessness, shame, fear, and humiliation.”).

  105. [105]. Catharine A. MacKinnon, Where #MeToo Came From, and Where It’s Going, Atlantic
    (Mar. 24, 2019), https://www.theatlantic.com/ideas/archive/2019/03/catharine-mackinnon-what-metoo-has-changed/585313 [https://perma.cc/66ET-XA97] (“After four decades—or thousands of years, depending on when you start counting—the pervasive silence that walled off reports of sexual abuse crumbled.”).

  106. [106]. See Lea VanderVelde, The Legal Ways of Seduction, 48 Stan. L. Rev. 817, 822 (1996).

  107. [107]. See id.

  108. [108]. 1 William Blackstone, Commentaries *430.

  109. [109]. Bowman, supra note 38, at 533; Davis, supra note 34, at 166­–67, 173.

  110. [110]. Note, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv. L. Rev. 1255, 1256 (1986) (internal quotation marks omitted) (emphasis added).

  111. [111]. See id. at 1257­–58.

  112. [112]. Bowman, supra note 38, at 527. But see Craker v. Chicago & N.W. Ry. Co., 36 Wis. 657, 679 (1875) (affirming guilty verdict of perpetrator who assaulted and harassed a woman on a train).

  113. [113]. See VanderVelde, supra note 106, at 860, 867.

  114. [114]. Id. at 819.

  115. [115]. Id. at 821, 825; see id. at 822 n.13.

  116. [116]. Id. at 822–23.

  117. [117]. Id. at 829.

  118. [118]. Id. at 899.

  119. [119]. See generally Bowman, supra note 38 (discussing multiple theories why street harassment can be legally proscribed); Dr. JoAnne Sweeny, Trapped in Public: The Regulation of Street Harassment and Cyber-Harassment Under the Captive Audience Doctrine, 17 Nev. L.J. 651 (2017) (captive audience doctrine); Sopen B. Shah, Open Season: Street Harassment as True Threats, 18 U. Pa. J.L. & Soc. Change 377 (2016) (true threats); Olney, supra note 83 (low-value speech, fighting words, secondary effects doctrine). An in-depth analysis of the First Amendment in relation to street harassment is outside the scope of this Note.

  120. [120]. See Bowman, supra note 38, at 543–46.

  121. [121]. See supra note 119 and accompanying text.

  122. [122]. Bowman, supra note 38, at 546.

  123. [123]. Id. at 528.

  124. [124]. Id.

  125. [125]. Gardner, supra note 40, at 12.

  126. [126]. Nora Stewart, Note, The Light We Shine into the Grey: A Restorative #MeToo Solution and an Acknowledgment of Those #MeToo Leaves in the Dark, 87 Fordham L. Rev. 1693, 1698 n.18 (2019).

  127. [127]. Id. at 1698; #MeToo: A Timeline of Events, Chi. Trib. (Sept. 17, 2020, 1:52 PM), https://
    www.chicagotribune.com/lifestyles/ct-me-too-timeline-20171208-htmlstory.html [https://
    perma.cc/MT4B-DXF2].

  128. [128]. Stewart, supra note 126, at 1703. For a list of the prominent predators taken down by the #MeToo movement, see Audrey Carlsen et al., #MeToo Brought Down 201 Powerful Men. Nearly Half of Their Replacements are Women., N.Y. Times (Oct. 29, 2018), https://www.nytimes.com/
    interactive/2018/10/23/us/metoo-replacements.html [https://perma.cc/D2TC-UAP9].

  129. [129]. Jodi Kantor & Megan Twohey, She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement 182 (2019); see also Catharine A. MacKinnon, #MeToo Has Done What the Law Could Not, N.Y. Times (Feb. 4, 2018), https://www.nytimes.com/2018/02/
    04/opinion/metoo-law-legal-system.html [https://perma.cc/RM89-J3GZ] (“This mass mobilization ... through an unprecedented wave of speaking out in conventional and social media, is eroding the two biggest barriers to ending sexual harassment in law and in life: the disbelief and trivializing dehumanization of its victims.”).

  130. [130]. Contessa Gayles, 5 Apps to Help Change the World, CNN Bus. (June 27, 2014, 9:15 AM), https://money.cnn.com/gallery/technology/mobile/2014/06/27/apps-social-activists/2.html [https://perma.cc/97HW-A5PH].

  131. [131]. Monte Whaley, App that Works as Panic Button Helped Save Grand Junction Teen from Alleged Kidnapping, Denver Post (Dec. 21, 2018, 11:27 AM), https://www.denverpost.com/2018/12/
    08/red-panic-button-app-saves-colorado-teen-kidnapping.

  132. [132]. Sasha Lekach, Lyft Adds 911 Button More Than a Year After Uber App, Mashable (Sept. 10, 2019), https://mashable.com/article/lyft-adds-911-button-safety-features.

  133. [133]. Tiffanie Heben explains the problems with a mens rea element:

    [I]n cases of street harassment, the perpetrator may have intended to give a compliment, but that does not make the behavior a compliment. In rape cases, the legal system tends to function by denying injury if the perpetrator did not think he was causing injury. In effect, the system has adopted an average reasonable perpetrator perspective.

    Tiffanie Heben, A Radical Reshaping of the Law: Interpreting and Remedying Street Harassment, 4 S. Cal. Rev. L. & Women’s Stud. 183, 215 (1994) (emphasis omitted).

  134. [134]. See supra Section II.D (examining differing interpretations of street harassment); see also infra notes 138–40 and accompanying text (analyzing the most common reasons behind street harassment). Even if the harasser is found guilty, the punishment may be unjust. For example, former Stanford student Brock Turner, convicted of sexual assault, received only a six-month sentence—ultimately serving just three months—but the sentencing judge’s ruling was “within the parameters set by the law and therefore within the judge’s discretion.” See Lucy Arnold, State Commission Clears Judge of Wrongdoing in Turner Sentence, Stan. Daily (Dec. 22, 2016), https://
    www.stanforddaily.com/2016/12/22/state-commission-clears-judge-of-wrongdoing-in-turner-sentence [https://perma.cc/VGC2-K34F].

  135. [135]. Iowa Code § 708.1(2)(a) (2020).

  136. [136]. Id. § 708.1(2)(b).

  137. [137]. Id.

  138. [138]. Bowman, supra note 38, at 542.

  139. [139]. Id. at 543.

  140. [140]. Id.

  141. [141]. See State v. Taylor, 689 N.W.2d 116, 128–29 (Iowa 2004) (noting that a defendant’s prior conduct can be used to infer intent).

  142. [142]. Iowa Code § 708.7(1)(b).

  143. [143]. Id. § 708.7(7)(b).

  144. [144]. State v. Evans, 671 N.W.2d 720, 724, 726 (Iowa 2003).

  145. [145]. State v. Youmans, No. 14-1305, 2015 WL 7019012, at *4 (Iowa Ct. App. Nov. 12, 2015) (citing In re D.S., 856 N.W.2d 348, 352 (Iowa 2014)).

  146. [146]. Id. (quoting In re D.S., 856 N.W.2d at 352).

  147. [147]. See State v. Cramer, No. 09-0957, 2010 WL 2925127, at *6 (Iowa Ct. App. July 28, 2010).

  148. [148]. Id. (citing State v. Fratzke, 446 N.W.2d 781, 783–84 (Iowa 1989)).

  149. [149]. In re D.S., 856 N.W.2d at 354 (citing State v. Evans, 672 N.W.2d 328, 330–31 (Iowa 2003)).

  150. [150]. Nibeck v. Marion Police Dep’t, No. 16-CV-114-LRR, 2016 WL 6246782, at *5 (N.D. Iowa Oct. 25, 2016) (emphasis added).

  151. [151]. Iowa Code § 708.11(2)(a) (2020).

  152. [152]. See id. § 708.11(1)(b), (d).

  153. [153]. Id. § 709.9.

  154. [154]. Id. § 709.9(2).

  155. [155]. State v. Sullivan, No. 18-0559, 2019 WL 2144636, at *5 (Iowa Ct. App. May 15, 2019) (quoting State v. Jorgensen, 758 N.W.2d 830, 837 (Iowa 2008)).

  156. [156]. See Julie Goldscheid, Is Sexual Harassment a Civil Rights Violation? It Should Be., ACLU (Jan. 26, 2018, 1:15 PM), https://aclu.org/blog/womens-rights/sexual-harassment-civil-rights-violation-it-should-be [https://perma.cc/3KBV-JS85].

  157. [157]. A remedy against a private individual

    was available under the 1994 Violence Against Women Act. . . . But in 2000, in U.S. v. Morrison, a case brought by a college student raped at school . . . the Supreme Court struck down the law on the basis that Congress exceeded its authority in passing federal legislation that interfered with state’s rights.

    Id.; see also United States v. Morrison, 529 U.S. 598, 613 (2000) (“Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity [under the Commerce Clause].”). Justice Souter’s dissent, joined by Justices Stevens, Ginsburg, and Breyer, argued that “the mountain of data assembled by Congress” pertaining to gender-motivated violence should have led the Court to uphold the law. Morrison, 529 U.S. at 628–29 (Souter, J., dissenting).

  158. [158]. Iowa Code §§ 216.1, 216.6–216.10. The Act also covers discrimination on the basis of age, race, creed, color, national origin, religion, ancestry, disability, or familial status. Id.

  159. [159]. Id. § 216.7(1).

  160. [160]. D.C. Code Ann. §§ 7-2421 to 7-2426 (West 2018).

  161. [161]. Office of Human Rights, Office of Victim Services and Justice Grants, Mayor’s Office
    of Lesbian, Gay, Bisexual, Transgender and Questioning Affairs, District Department of Transportation, Metropolitan Police Department, Chairman of the Council, Washington Metropolitan Area Transit Authority, Alcoholic Beverage Regulation Administration, and nine community representatives who engage in policy, advocacy, or direct service related to street harassment, gender-based violence, gender equity, LGBTQIA+ rights, racial equity, religious tolerance, poverty or homelessness, or immigrant rights. Id. § 7-2422.

  162. [162]. Id. § 7-2423.

  163. [163]. Id. § 7-2424(a)(2).

  164. [164]. Id. § 7-2424(c)

  165. [165]. Holly Kearl, DC’s New Law Against Street Harassment, Stop St. Harassment (Aug. 4, 2018) [hereinafter Kearl, DC’s New Law], http://www.stopstreetharassment.org/2018/08/
    dclawshpa [https://perma.cc/AG4D-WW6D].

  166. [166]. D.C. Code Ann. § 7-2421.

  167. [167]. Id. § 2-1401.01 (“[R]ace, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status,
    ... disability, ... place of residence or business ... .”).

  168. [168]. Id. § 7-2421(2)(A)–(H).

  169. [169]. Thompson, supra note 99, at 330; see also Laureen Snider, Feminism, Punishment, and the Potential of Empowerment, 9 Canadian J.L. & Soc’y, no. 1, 1994, at 75, reprinted in Criminology at the Crossroads: Feminist Readings in Crime and Justice 249 (Kathleen Daly & Lisa Maher eds., 1998) (“[T]here is no reason to conclude that arresting and charging more suspects is helpful to the women involved, or even that it represents the option she would have preferred. As always, the men arrested are not a representative sample of abusers—they are the abusers with the fewest resources and the least ability to resist.”). In the wake of George Floyd’s murder at the hands of a Minneapolis police officer in May 2020, calls for abolishing and/or defunding the police have risen. See, e.g., Mariame Kaba, Yes, We Mean Literally Abolish the Police, N.Y. Times
    (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html [https://perma.cc/KVD3-VXN9]; see also Angela Y. Davis, Are Prisons Obsolete? 9–21 (2003) (providing an introduction on prison abolition, prison reform, and mass incarceration).

  170. [170]. Kearl, DC’s New Law, supra note 165. Specifically, Councilmember Nadeau “wrote this bill while being sensitive to the fact that young people, members of the LGBTQ community, people from communities of color, people experiencing homelessness, and people from low-income communities experience more frequent and severe harassment.” Id.

  171. [171]. See id. “[S]tate[s] may selectively and discriminatorily enforce the[] law[] ... .” Bowman, supra note 38, at 548. Criminalizing street harassment in Iowa would likely result in increased incarceration rates. Black people, both in Iowa and the United States, are incarcerated at
    higher rates than any other race. The Facts: State-by-State Data, Sent’g Project, https://
    www.sentencingproject.org/the-facts/#detail?state1Option=U.S.%20Total&state2Option=Iowa [https://perma.cc/AJ4M-TAMA]. Black people outnumber white people 11 to 1 in Iowa’s prison population, id., and even though Black people comprise three percent of Iowa’s population, they make up 25 percent of the state’s prison population. ACLU, Blueprint for Smart Justice: Iowa 9 (2019). Latinx people are imprisoned at double the rate of white people in Iowa. Id. And, generally, the number of imprisoned people in Iowa tripled between 1980 and 2016.
    ACLU of Iowa Releases Roadmap for Cutting Incarceration by 50 Percent, ACLU (Mar. 7, 2019), https://www.aclu.org/press-releases/aclu-iowa-releases-roadmap-cutting-incarceration-50-percent [https://perma.cc/REB4-883J].

  172. [172]. There are proponents of criminalizing this behavior. According to Tiffanie Heben, when a legislature creates a law in response to a social problem, the law “alters the public consciousness and tells people what is expected of them ... which ... may lead to changes in attitudes as well.” Heben, supra note 133, at 206 (footnote omitted).

         For instance, legal scholar Kristin Bumiller explains that mass audiences view “criminal trials [as] symbolic, since defendants and victims come to represent social roles. Each trial has within it a message about the way to reconcile the social vision of a good society with justice in the individual case.” Kristin Bumiller, Fallen Angels: The Representation of Violence Against Women in Legal Culture, 18 Int’l J. Socio. L. 125 (1990), reprinted in Criminology at the Crossroads, supra note 169, at 38 (citation omitted). A criminal law may compensate and validate victims’ injuries—both physical and emotional—although the latter is historically undervalued and ignored. Heben, supra note 133, at 207. Lastly, victims may no longer consider street harassment to be a personal problem; they may no longer try to take the situation into their own hands and place themselves in further danger when confronting their harassers.

  173. [173]. Laura Beth Nielsen, Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens About Law and Street Harassment, 34 Law & Soc’y Rev. 1055, 1081 (2000) [hereinafter Nielsen, Situating Legal Consciousness].

  174. [174]. Kearl, Unsafe and Harassed, supra note 3, at 35. Because street harassment is a subgroup of a sexual harassment and sexual violence, prosecutors and police officers are likely influenced by the same myths; they likely “interrogate victims as if they are the suspects,” doubt the victims, and revictimize them. Carol E. Tracy, Terry L. Fromson, Jennifer Gentile Long
    & Charlene Whitman, Rape and Sexual Assault in the Legal System 9 (2012), https://
    www.womenslawproject.org/wp-content/uploads/2016/04/Rape-and-Sexual-Assault-in-the-Legal-System-FINAL.pdf [https://perma.cc/W24Q-EKWM] (outlining that about 50 percent “of rape victims report being revictimized by police”). Dangerously so, “Black and Native American girls[] are funneled into the juvenile justice system as a direct result of their victimization.... For women of color in particular, there is evidence that defensive actions in situations of victimization are more likely to be interpreted as aggressive.” Asha DuMonthier, Chandra Childers &
    Jessica Milli, The Status of Black Women in the United States 122 (2017), https://
    statusofwomendata.org/wp-content/uploads/2017/06/SOBW_report2017_compressed.pdf [https://perma.cc/V3G3-AZ6Q] (citations omitted); see supra note 94 and accompanying text.

  175. [175]. Tracy et al., supra note 174, at 11. Sexual assault victims are often questioned about their past sexual history or subjected to other forms of victim-blaming. See id. at 10 (“Criminal justice professionals and other participants in the judicial process are not immune from bias in their handling of rape and sexual assault.”). But see Fed. R. Evid. 412(a) (“The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
    (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.”). However, there are exceptions to this prohibition. See Fed. R. Evid. 412(b).

  176. [176]. Bumiller, supra note 172, at 43. For example, “society ignores the victim’s perception of the attack, she becomes the object of a theory about nonconsent that uses information not only about her behavior on the day of the rape but also about the moral choices she has made throughout her lifetime.” Id. at 44. See generally Irin Carmon, Amelia Schonbek & Sarah Jones, Was It Worth It?: Is it Still? Will it Ever Be?, Cut (Sept. 30, 2019), https://www.thecut.com/
    2019/09/coming-forward-about-sexual-assault-and-what-comes-after.html [https://perma.cc/
    FCY5-BWG5] (detailing the negative responses after sexual violence victims came forward); Rebecca Traister, The Toll of Me Too: Assessing the Costs for Those Who Came Forward., Cut (Sept. 30, 2019), https://www.thecut.com/2019/09/the-toll-of-me-too.html [https://perma.cc/JZ8F-8G8U] (same).

  177. [177]. Kearl, DC’s New Law, supra note 165.

  178. [178]. See infra Section IV.C.

  179. [179]. See generally Raymond Paternoster, How Much Do We Really Know About Criminal Deterrence?, 100 J. Crim. L. & Criminology 765 (2010) (concluding that there is not much evidence proving crime laws are a deterrent); Anthony N. Doob & Cheryl Marie Webster, Sentence Severity and Crime: Accepting the Null Hypothesis, 30 Crime & Just. 143 (2003) (rejecting the belief that harsh sentences lower crime); Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best, 91 Geo. L.J. 949, 953 (2003) (“The social science literature suggests that potential offenders commonly do not know the law, do not perceive an expected cost for a violation that outweighs the expected gain, and do not make rational self-interest choices.”).

  180. [180]. To read the 30 testimonies of D.C. organizations and individuals supporting the law, see Memorandum from Charles Allen, Chairperson, Comm. on the Judiciary and Pub. Safety, to Nyasha Smith, Sec’y of the Council 163–218 (Dec. 11, 2017), https://lims.dccouncil.us/
    downloads/LIMS/37471/Hearing_Record/B22-0129-HearingRecord1.pdf [https://perma.cc/
    94AV-PVAT].

  181. [181]. See generally Maya Vizvary, D.C. Off. of Hum. Rts., The State of Street Harassment in DC: A Report on the First Year of Implementing the Street Harassment Prevention Act (2020), https://ohr.dc.gov/sites/default/files/dc/sites/ohr/publication/attachments/OHR_
    SHPA_Report_APRIL2020_FINAL.pdf [https://perma.cc/B6WB-ETG2] (including in-depth discussions of data collection, survey results, focus group results, public awareness campaign examples, data-informed recommendations, training and reporting recommendations, model policies, and appendices of the survey, responses, focus group script and questions, and campaign advertisements).

  182. [182]. Id. at 6.

  183. [183]. Id. at 6–7.

  184. [184]. Id. at 39.

  185. [185]. Id. at 7. The report did not include a deadline for fulfilling such recommendations.

  186. [186]. Bianca Fileborn & F. Vera-Gray, “I Want to be Able to Walk the Street Without Fear”: Transforming Justice for Street Harassment, 25 Feminist Legal Stud. 203, 217 (2017).

  187. [187]. D.C. Code Ann. § 7-2421(4) (West 2018).

  188. [188]. Id.

  189. [189]. Id. § 7-2421(2)(D).

  190. [190]. Id. § 7-2421(2)(E).

  191. [191]. Id. § 7-2421(2)(F).

  192. [192]. Id. § 7-2421(2)(G).

  193. [193]. Id. § 7-2421(2)(H).

  194. [194]. Id. § 7-2421(2)(A)–(C).

  195. [195]. Id. § 7-2421(2)(B).

  196. [196]. Iowa Code § 217.5 (2020).

  197. [197]. Id. § 216A.1(1)(a)(1)–(7).

  198. [198]. Id. § 123.5.

  199. [199]. Id. § 137F.1.4.

  200. [200]. Id. § 216A.3.

  201. [201]. Id. § 221.2.

  202. [202]. Id. § 80.1.

  203. [203]. See D.C. Code Ann. § 7-2422(a)(9)(A)–(H) (West 2018).

  204. [204]. A multitude of sexual violence prevention education efforts exist. “Some are focused on preventing an individual from perpetrating sexual violence while other theories explore how to change peer and social culture to great environments where sexual violence is not tolerated.” Sarah McMahon, Leila Wood & Julia Cusano, Theories of Sexual Violence Prevention, in Handbook of Sexual Assault and Sexual Assault Prevention 383, 393 (William T. O’Donohue & Paul A. Schewe eds., 2019). Perhaps, though, focusing prevention education efforts “at the adolescent and emerging adulthood stage” is the most urgent. Id. at 394; see Anya Kamenetz, How Schools Can Reduce Sexual Violence, NPR (Nov. 13, 2018, 5:06 AM), https://www.npr.org/2018/11/13/660644128/how-schools-can-reduce-sexual-violence [https://perma.cc/RBK5-E7HU]; see also infra note 207 and accompanying text (explaining Baltimore’s Safer Spaces Campaign).

         The Rogers Park Young Women’s Action Team (“YWAT”) focuses on community and peer education, among other things. About Us, Rogers Park Young Women’s Action Team, www.rogersparkywat.org/about [https://perma.cc/N624-LLLR]. Mariame Kaba, co-founder of YWAT, created resources, curriculum, and guides on ending street harassment and violence against women. See generally Mariame Kaba, The Rogers Park Young Women’s Action Team Street Harassment Curriculum (Anne Pizzi, ed.), https://www.rogersparkywat.org/wp-content/uploads/2010/09/Street-Harassment-Curriculum.pdf [https://perma.cc/ZXA7-MBYS] (providing 13 modules of street harassment education, including journaling, discussions, brainstorming, and other activities).

  205. [205]. For more information on community safety audits, see How to Lead a Community Safety Audit, Hollaback!, https://www.ihollaback.org/how-to-lead-a-community-safety-audit [https://
    perma.cc/24BC-7DMZ].

  206. [206]. Contacting the hotline would not result in an investigation unless requested by the victim. The hotline is designed to study the occurrence and location of street harassment. Hollaback! provides an informative how-to guide on surveying street harassment. How to Create a Survey for Research, Hollaback!, https://www.ihollaback.org/how-to-create-a-survey-for-research [https://perma.cc/84TA-SC7Z].

  207. [207]. For example, Baltimore, Maryland’s Hollaback! chapter created the Safer Spaces Campaign, where the chapter evaluates the local business’ “employee guide and/or security policies,” conducts “an in-person training session on how to respond to complaints of harassment” and “give[s] a packet of resources” including “a poster to hang publicly.” Safer Spaces Campaign, Hollaback!, https://bmore.ihollaback.org/safer-spaces-campaign [https://perma.cc/
    2RDZ-8HKV] (emphasis omitted). Hollaback! also “train[s] transit workers and the police in what harassment looks like, current processes, and how to appropriately respond to someone who experienced [street harassment].” Policy Recommendations, Hollaback!, https://
    www.ihollaback.org/take-action/policy-recommendations [https://perma.cc/2XC5-C88T].

  208. [208]. The Call Center provides “staff available 24 hours a day and 365 days a year, [and] callers are given the full attention they deserve.” About Us: The Call Center, Iowa Victim Serv. Call Ctr., http://www.survivorshelpline.org/the-call-center.php [https://perma.cc/8BAV-L7GC].

  209. [209]. “The Iowa Coalition Against Sexual Assault represents 24 victim service programs across the state. [Their] mission is to improve services for survivors of sexual harassment, abuse, and assault, and to prevent sexual violence before it occurs.” Iowa Coal. Against Sexual Assault, https://www.iowacasa.org [https://perma.cc/UBT7-MBR8].

  210. [210]. U.S. Const. amend. I.

  211. [211]. Thompson, supra note 99, at 331; see supra notes 119–22 and accompanying text.

  212. [212]. Nielsen, Situating Legal Consciousness, supra note 173, at 1074.

  213. [213]. Id. at 1075.

  214. [214]. Id. at 1071 (internal quotation marks omitted).

  215. [215]. See supra note 122 and accompanying text.

  216. [216]. Nielsen, Situating Legal Consciousness, supra note 173, at 1071; see also Jeffrey M. Skopek, Untangling Privacy: Losses Versus Violations, 105 Iowa L. Rev. 2169, 2176 (2020) (“An individual’s interest in being an autonomous person is at the core of many definitions of privacy. For example, privacy has been defined as protecting...‘the individual’s independence, dignity and integrity[]’ ....”).

  217. [217]. Nielsen, License to Harass, supra note 28, at 117–20.

  218. [218]. Nielsen, Situating Legal Consciousness, supra note 173, at 1080.

  219. [219]. Id.

  220. [220]. Carol Withey, Rape and Sexual Assault Education: Where Is the Law?, 13 New Crim. L. Rev. 802, 805 (2010).

  221. [221]. Id.

  222. [222]. Id.

  223. [223]. James P. Lynch, Problems and Promise of Victimization Surveys for Cross-National Research, 34 Crime & Just. 229, 245 (2006).

  224. [224]. Id. at 246.

  225. [225]. Id.

  226. [226]. Id. (emphasis added).

  227. [227]. Id.

  228. [228]. See supra notes 205–06 and accompanying text.

  229. [229]. Kearl, Making Public Places Safe, supra note 27, at 129; see also Melinda Wenner Moyer, To Stop Sexual Violence, We Need to Change How We Engage with Kids, Wash. Post (Sept. 17, 2019, 10:25 AM), https://www.washingtonpost.com/outlook/2019/09/17/stop-sexual-violence-we-need-change-how-we-engage-with-kids [https://perma.cc/XM9M-L5EM] (examining how gender stereotypes are learned young and how that transforms into future sexual violence).

  230. [230]. Fileborn & Vera-Gray, supra note 186, at 217.

  231. [231]. Kearl, Making Public Places Safe, supra note 27, at 129.

  232. [232]. See supra note 179 and accompanying text.

  233. [233]. Kearl, Making Public Places Safe, supra note 27, at 129–30.

  234. [234]. Thompson, supra note 99, at 339.

  235. [235]. See Kearl, Making Public Places Safe, supra note 27, at 141–44 (outlining a variety of beneficial strategies for bystanders to use when witnessing street harassment).

  236. [236]. Kathleen C. Basile et al., CDC, Stop SV: A Technical Package to Prevent Sexual Violence 12, 16 (2016).

  237. [237]. Bianca Fileborn, Bystander Intervention from the Victims’ Perspective: Experiences, Impacts and Justice Needs of Street Harassment Victims, 1 J. Gender-Based Violence 187, 200 (2017). Bystander intervention provides victims with a sense of “informal justice” and victims often feel safer. Id. at 201. But see id. at 200 (explaining that bystander intervention can sometimes worsen the situation).

  238. [238]. Bonnie S. Fisher, Leah E. Daigle & Francis T. Cullen, Rape Against Women: What Can Research Offer to Guide the Development of Prevention Programs and Risk Reduction Interventions?, 24 J. Contemp. Crim. Just. 163, 170–74 (2008).

  239. [239]. Kearl, Making Public Places Safe, supra note 27, at 149.

  240. [240]. See infra notes 241–43 and accompanying text.

  241. [241]. Withey, supra note 220, at 818.

  242. [242]. Snider, supra note 169, at 255 (discussing how the “public struggle” rhetoric worked to improve worker’s safety rights).

  243. [243]. See Withey, supra note 220, at 818 (explaining that education “can impact ... offending and victimization rates”).

  244. [244]. See supra notes 204, 207 and accompanying text.

  245. [245]. Michelle L. Munro-Kramer, Alexandra C. Dulin & Caroline Gaither, What Survivors Want: Understanding the Needs of Sexual Assault Survivors, 65 J. Am. Coll. Health 297, 303 (2017) (“Past studies have demonstrated that individuals do read and take domestic violence materials (eg palm cards, flyers, or posters) placed in private settings like a bathroom.”).

  246. [246]. Thompson, supra note 99, at 339.

  247. [247]. Id. at 336 (“It would be relatively easy to develop a complaint procedure for street harassment. For example, instead of signs on the back of company trucks that read, ‘How’s my driving, call 1-800-555-1212,’ trucks and taxis could display signs that read, ‘If the driver of this vehicle harasses you, call 1-800-555-1212.’”).

  248. [248]. Id.

  249. [249]. Lynch, supra note 223, at 243 (“In police administrative data, police officers at the scene may make a coding decision that a specific event is a burglary. This is an aggregation of information.... In some victimization surveys, a substantial amount of information is collected on the incident, and that information is retained in the data in a highly disaggregated form.” (footnote omitted)).

  250. [250]. Id. at 245.

  251. [251]. U.S. Dep’t of Just. Off. on Violence Against Women, The 2016 Biennial Report to Congress on the Effectiveness of Grant Programs Under the Violence Against Women Act 31 (2016).

  252. [252]. Diane L. Green & Albert R. Roberts, Helping Victims of Violent Crime: Assessment, Treatment, and Evidence-Based Practice 61 (2008).

  253. [253]. Id.

  254. [254]. Id. at 64.

  255. [255]. Sarah Johnston-Way & Sue O’Sullivan, Recognizing the Role of Victim Supports in Building and Maintaining Healthy and Safe Communities, 1 J. Cmty. Safety & Well-Being 12, 13 (2016).

  256. [256]. Id. at 13–14.

  257. [257]. Munro-Kramer et al., supra note 245, at 300–02.

  258. [258]. Tuerkheimer, supra note 104, at 206.

  259. [259]. See supra note 179 and accompanying text.


     
     
     
     
     
     
     
     
     
     
*

J.D. Candidate, The University of Iowa College of Law, 2021; B.A., Stanford University, 2018.



This Note would not be possible without the support from my friends and family, particularly my mother, Donna Christensen-Mores. Thank you to Professors Daria Fisher Page and Sean Sullivan for providing valuable comments and edits, and to the Iowa Law Review editorial board for its insight and expertise.