Protection from Sex-based Harassment in Public Act 2023: what does it hope to achieve?

The Protection from Sex-based Harassment in Public bill received Royal Assent (when a monarch formally approves an act of the legislature) and was entered into UK law in September 2023

Key summary of the 2023 Act

• The Act aims to address ‘intentional harassment, alarm or distress to a person in public where the behaviour is done because of that person’s sex, or perceived sex’.
• The Act adds Section 4A to the Public Order Act 1986, allowing for tougher sentences for perpetrators who intentionally harass another person in a public place due to their sex, or perceived sex.
• The Act creates a new offence, and provides tougher sentencing for offenders that harass, alarm or cause distress due to the perceived sex of the victim-survivor.
• The Act carries a maximum prison sentence of 2-years for the offence of public harassment.

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What is public harassment?

The Act itself does not include a list of behaviours that will constitute an offence, with the intention that behaviour will be judged on a case-by-case basis in UK courts. The summary of the Act does give an indication of what the Act will cover –

“Public sex-based harassment is generally understood to involve unwelcome and unwanted behaviour directed at a person in a public space, such as on the street, on public transport, in a gym, or at a hospitality venue, because of that person’s sex”¹

Some of the behaviours that fall under this offence are listed in the Explanatory Notes of the Act² –

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Potential problems with the Act

Intention

The most critical issue with the Act is the inclusion of the word intention in the description of the offence. Proving the intention of a defendant is tricky and offers the perpetrator a potential legal defence, claiming their behaviour was a good-natured joke, a well-meaning compliment or they were simply misunderstood. The Act, therefore, leaves the issue of how to prove someone intended to harass another person due to their sex or perceived sex unanswered. It will be left to UK courts to decide what constitutes intentional distress and therefore whether a behaviour or an action can be labelled public harassment.

Many other criminal offences reference the intention of the accused and there is some guidance around proving the intention of a potential offender. The concept of intention under UK law can be split into direct and indirect intention³, and there are rules for UK courts to apply when dealing with this problem.

To assess whether someone directly intended to do something, judges and juries are asked to determine whether the defendants aim or objective was to bring about a certain result. This decision is made with reference to the context of the situation and the behaviour of the individual.

The test for determining indirect intention is made up of two questions. Was the consequence of a person’s conduct a virtual certainty? Did the person realise that the consequence was a virtual certainty? If the answer to both of these questions is yes, then indirect intention can be established.

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Positive impacts of the Act

Real world impact

A piece of legislation entered into UK law with the intention of criminalising alarming and distressing behaviour in public validates and legitimises the daily lived experience of women and girls in the UK. The Act also, correctly, categorises behaviours such as making sexual comments and gestures, following someone or blocking their path a criminal offence. We welcome any change in the law that challenges the normalisation of these kinds of behaviour.

The offence of sex-based public harassment created by the Act should help create a focal point for the criminal justice system in the UK. The scope for sentencing those that behave in an alarming, distressing or harassing manner is now much wider. The Police, the Crown Prosecution Service, criminal courts and court judges now have the legislative power to really change the lives of women and girls in the UK.

Symbolic impact

The emblematic value of the Act has the potential to be really significant. Behaviour that is commonplace and, to a certain extent, accepted as part of daily life in the UK is now not only criminalised, but it carries a significant prison sentence. The hope being that this enables victim-survivors to come forward and report instances of this behaviour to the police. The 2-year maximum prison sentence for the offence of sex-based harassment will hopefully have a deterrent effect.

Long term impact

Plan International UK research found that 75% of 12-21-year-old women and girls in the UK have experienced harassment in public, with 62% of this group avoiding hobbies, socialising, work or education due to fears of public harassment⁴. We hope that the Act will be part of the solution for the ever-present issue of sex-based harassment. Increasing confidence for those impacted to report, increased focus and seriousness of the police and CPS and a deterrent for would-be offenders are all possible outcomes if the Act is applied in the right way. A new law that takes harassment in public seriously and carries a significant prison sentence also has the chance to have a widespread impact on the public perception of this kind of behaviour.

In the wider context of UK law, the Protection from Sex-Based Harassment in Public Act is one of several positive legislative changes that seek to address sex-based violence in the UK. The Online Safety Act 2023⁵, the Worker Protection (Amendment of the Equality Act 2010) Act 2023⁶ and the Child Support Collection (Domestic Abuse) Act 2023⁷ are all making strides to protect survivors and prosecute perpetrators. We hope to see the long-term impact of these Acts making the lives of survivors better in the coming years.

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Final thoughts from SARSAS

“Public harassment is endemic and it’s experienced by women and girls every day in the UK, any step towards challenging this behaviour in public places in the UK should be welcomed. However, the practical impact of this Act remains to be seen; there are many questions left unanswered regarding the effectiveness of the legislation to prosecute defendants and protect victim-survivors. Will UK courts be able to prove a someone intended to harass someone else? Will the Act have a real-world impact on the number of incidences reported? Will the police take these reports seriously? Will change be felt in the lives of those the Act seeks to protect?”

Lisa Durston, SARSAS Communications Manager

Legal disclaimer: This article contains general legal information; the legal information is not advice or guidance and should not be treated as such. The information on this website is provided without any representations or warranties and is published exclusively to provide opinion and awareness.

Toby Howells is a volunteer communications officer with SARSAS. Toby graduated from the University of York’s Law School in 2020, studying public and criminal law and now works for Bristol City Council.

1. Protection from Sex-based Harassment in Public Bill 2022-23 – House of Commons Library (parliament.uk) ↩︎
2. https://publications.parliament.uk/pa/bills/lbill/58-03/125/en/5803125en03.htm ↩︎
3. https://www.legislation.gov.uk/ukpga/1967/80/section/8#text%3D%28b%29shall%2520decide%2520whether%2520he%2Cappear%2520proper%2520in%2520the%2520circumstances. ↩︎
4. https://www.suzylamplugh.org/Handlers/Download.ashx?IDMF=9b628190-6f18-4e2f-9966-95457da9c7f2 ↩︎
5. Online Safety Act 2023 (legislation.gov.uk) ↩︎
6. Worker Protection (Amendment of Equality Act 2010) Act 2023 (legislation.gov.uk) ↩︎
7. Child Support Collection (Domestic Abuse) Act 2023 (legislation.gov.uk) ↩︎