When They Make a Battlefield of Her Choice: The Harassment of Women and the Right to Protest

When I first no­ticed their banner as I walked by Bedford Square, in London, I didn’t think too much about it. It re­gistered as a de­pressing ex­ample of the public ex­pres­sion of a po­s­i­tion I had strong op­pos­i­tion to, not much more. It wasn’t until some­time later that I clocked the un­usual loc­a­tion of the small public protest — a quiet spot with re­l­at­ively little ped­es­trian or other traffic upon which to make an im­pact. I googled. It turns out that the ‘im­pact’ of the protest was dir­ected to­ward the women who were seeking the ser­vices of the clinic across the road, the British Pregnancy Advisory Service. Although the large banner, small signs, a handful of the ‘faithful’ across the street — watching, singing, and praying as the women came and went — was not the full ex­tent of their activ­ities. It also in­volved up to two in­di­viduals sta­tioned on either side of the front en­trance of the clinic, handing out (fac­tu­ally in­cor­rect and ma­nip­u­lative) in­form­a­tion, and trying to en­gage both those coming and going to the clinic, and passer-​bys, in dis­cus­sion. There have also been re­ports of as­sault and filming. This out­raged me. Freedom to protest, freedom of ex­pres­sion, okay. Harassing women during what is often a very dif­fi­cult and private ex­per­i­ence, not okay.

The re­sponse to the vigil has been es­cal­ating, along with the vigil it­self. Most re­cently we saw a counter-​protest (out­side of clinic hours) which sig­ni­fic­antly out­numbered the pro-​life cam­paigners. Whilst the sym­bolic vic­tory may have been won by those who will de­fend the right to choose, the fact that the counter protest was held only after clinic hours is in­dic­ative of a deeper issue. Those who would de­fend the right to choose are con­scious not to con­tribute to the dis­tress of women seeking these ser­vices. Unfortunately, vigil keepers do not share this con­cern, and will­ingly make a bat­tle­field of the clinic en­trance. Even if the slum­bering giant of the pro-​choice move­ment has awoken, it does not ne­ces­sarily ad­dress this key issue — that is the issue of tactic, strategy, and what con­sti­tutes an ac­cept­able form of protest or polit­ical ex­pres­sion. Counter protest (out­side clinic hours), po­lite but clear let­ters of op­pos­i­tion (I am in­famous for this one), or con­fronting vigil keepers as one walks by may per­suade some that their peaceful protest is not as peaceful as they think, but those com­mitted to the cam­paign re­main. The ques­tion that I want to raise is what role, if any, do we think the law ought to play in ad­dressing this issue?

The role of the law in re­la­tion to forms of direct ac­tion or protest is un­der­stand­ably met with sus­pi­cion. Examples of dis­pro­por­tionate and vi­olent re­sponses to peaceful protest has ceased to sur­prise many of us (if it ever did). Perhaps even more fun­da­ment­ally, the law it­self is a form of con­sti­tuted power that protest may seek to chal­lenge. We have good reason to be hes­itant about in­voking the law to limit forms of protest: But this hes­it­a­tion risk sub­suming the polit­ical to the legal. The right to protest as a legal right is already ne­ces­sarily lim­ited. It does not define what may be le­git­imate protest ac­cording to polit­ical or eth­ical (or other) cri­teria. But that does not mean that a legal right to protest is not an im­portant and valu­able thing – but it will al­ways be a lim­ited con­cep­tion of polit­ical ac­tion. What we should be asking ourselves is what kinds of limits these legal limits should be.

Returning to our case of those who keep vigil out­side of abor­tion clinics, we might want to say that as a form of polit­ical ac­tion it should not be con­fined or de­terred by the legal form. But then if har­assing women is their form of ac­tion — my polit­ical re­sponse is to stop them. Theoretically, a polit­ic­ally ‘le­git­imate’ re­sponse would be for me to send my posse out to stop their posse from har­assing women, but not only does the law already con­strain such a re­sponse, it is not a par­tic­u­larly de­sir­able form of ac­tion. If we ask where we be­lieve the limits of legal protest should lie on the other hand — many of us would likely say that those limits should pre­clude har­assing women.

As it turns out, the law already re­flects this limit. Harassment is a crim­inal of­fence, and the law does not re­cog­nize protest as a de­fence. Significantly, since the in­tro­duc­tion of the Serious Organised Crime and Police Act 2005, the law re­cog­nises the par­tic­ular kind of har­ass­ment that is the result of a polit­ical cam­paign, cam­paigns which target a par­tic­ular person or per­sons to try to per­suade them not to do some­thing they are leg­ally en­titled to do. But then, what does the law re­cog­nise as har­ass­ment? Generally, the an­swer is a course of con­duct that causes someone alarm or dis­tress (or fear of vi­ol­ence). It doesn’t matter whether the person en­gaged in this con­duct thinks they are causing alarm or dis­tress, but what the ‘reas­on­able person’ would think would cause someone alarm or dis­tress. Are these dan­gerous lines to be drawing, es­pe­cially in re­la­tion to protest? Absolutely. Most forms of protest prob­ably cause some kind of alarm or dis­tress — in fact wearing a bright colour whilst walking down the street might cause someone alarm or dis­tress. But it is, I would argue, a line that should be drawn.

In this case the nature of the con­duct is dis­tin­guish­able as har­ass­ment by the nature of the target. These are not any member of the public going about their daily busi­ness — the tar­gets of the vigil keeper’s con­duct are women who are act­ively seeking abor­tion re­lated ser­vices. They are iden­ti­fied as such and con­fronted be­cause they enter the door of a clinic. In what is per­haps one of the more dif­fi­cult and deeply private mo­ments of their lives, they are sub­jected to an or­deal by those who as­sume moral and spir­itual su­peri­ority — and who would seek to stop them from ex­er­cising their choice. Would the law find this to be har­ass­ment? I sus­pect so. Should we look to the law in such a case? Yes.

Victoria Ridler is a lec­turer in law at Birkbeck, University of London.

  8 comments for “When They Make a Battlefield of Her Choice: The Harassment of Women and the Right to Protest

  1. Sebastian Wright
    18 April 2012 at 11:26 am

    For me de­fining this as har­ass­ment is a vi­ol­a­tion of freedom of speech and freedom to as­sembly. How would this be any dif­ferent leg­ally to oc­cupy london har­assing bankers by pitching tents and anti banking ban­ners at ca­nary wharf? Every ex­pan­sion of the law in this way will result in the state using it in just this way.

    • Victoria Louise Ridler
      18 April 2012 at 11:35 am

      Seb — When these women seek out the ser­vices of BPAS they cannot help but be­come pub­licly vis­ible. They don’t choose to be watched, prayed at, ap­proached (some­times ag­gress­ively), or judged by this mob of people when they go to the clinic. They go to the clinic be­cause they choose to seek out their ser­vices. I get the con­cern about protest, really, I do, and I don’t ne­ces­sarily ex­pect you to agree with me, but tar­geting these women in this way is not about ex­pres­sion (you can ex­press your­self any­where), it is about power and in­tim­id­a­tion and for­cing your ex­pres­sion upon a (cap­tive) group of people who are, by nature of what they are dealing with — in a very vul­ner­able po­s­i­tion. I can totally get why you would dis­agree, but to put it quite simply, the very spe­cific nature of the place, what goes on there, and who needs to go there for ser­vices — in my opinion, con­sti­tutes this form of ‘ex­pres­sion’ as har­ass­ment. (I wouldn’t say this about a banker going to work — nor would the ar­gu­ments I am sug­gesting sup­port this in­ter­pret­a­tion.) When I walk by and see what they are doing, I want to phys­ic­ally stop them. My knees go weak, and I feel sick to my stomach. Its like watching someone bul­lying my little sister. If I am going to ‘re­spect’ (or at least not break) the law by not har­assing (or as­saulting) these people in re­turn, I will gladly look to the law to stop them from some­thing I con­sider vi­olent and vile in nature. Freedom of ex­pres­sion and freedom of as­sembly have al­ways had legal limits. For me, the unique nature of the abor­tion clinic cre­ates such a need for limits. What I think we some­times forget when com­mitted to rad­ical politics is the dif­fer­ence between legal le­git­imacy and the le­git­imacy an ac­tion may have more gen­er­ally. I hoped I ex­pressed this in the art­icle — but the gist is that we should not look to the law to define the limits of polit­ical ac­tion. In this case, un­less we want a civil war out­side the clinic, where the vic­tims are the women using it, we should limit the right to protest in this phys­ical space.

      • Sebastian Wright
        18 April 2012 at 11:40 am

        How could you leg­ally make this case ab­so­lutely spe­cific though? Would not any legal pre­cedent be uni­versal and hence ap­plic­able to all situ­ations where a sim­ilar case could be made?

        • Victoria Louise Ridler
          18 April 2012 at 11:41 am

          Its a good ques­tion. I have been looking at a few other cases that in­volve a polit­ical cam­paign and in­junc­tions, most spe­cific­ally Eli Lilly & Co Ltd v Stop Huntingdon Animal Cruelty [2011] EWHC 3527 (QB)
          and Bayer CropScience Ltd v Stop Huntingdon Cruelty (SHAC) [2009] EWHC 3289 (QB) Injunctions are not es­pe­cially un­common in re­la­tion to protest activ­ities (I’ve in­cluded a link to a guardian art­icle about the phe­nomena below). So I am not con­vinced that finding protest activ­ities out­side of clinics providing abor­tion re­lated ser­vices would in any way ex­pand the law as it already is — nor ex­pand the scope of its ap­plic­a­tion to dif­ferent fac­tu­ally sim­ilar cir­cum­stances. But that doesn’t mean I en­dorse the law as it is. In fact, I think you could greatly limit its ap­plic­a­tion as it cur­rently stands and still find har­ass­ment in this case. I read a lot of case law in my work (al­though sadly not usu­ally crim­inal law) — and judges and council are re­mark­ably good at making cat­egories and types out of dif­ferent fac­tual situ­ations. I would like to think a very strong ar­gu­ment could be made that tar­geting women seeking abor­tion re­la­tion ser­vices by ‘preying’ upon them when they go to these clinics in­volve tar­geting a very vul­ner­able group of people defined as such by the nature of the ser­vice they are seeking (this would be defined by the spe­cificity of the time and loc­a­tion of ap­proach). Where the legal defin­i­tion of har­ass­ment con­cerns what can be reas­on­ably an­ti­cip­ated to cause alarm or dis­tress, this would seem a fac­tual scen­ario that — un­like many others (such as going to work for a bank, etcetera) — indicates to­wards a much higher like­li­hood of causing such an ef­fect. Article 8 of the European Convention on Human Rights (given direct ef­fect by the HRA 1997) would likely also come into play in any ju­di­cial reas­oning on the ques­tion (well, not likely, in­stead ‘would’ come into play.). Basically, I think you could have a much stricter test on what could count as har­ass­ment than we already do and still have scope for finding har­ass­ment in this case. Now, I sus­pect that many in­junc­tions don’t meet the kinds of ex­treme re­quire­ments sug­gested in the case law in­dic­ated above. I am still looking into the legal situ­ation gen­er­ally. I guess the main issue I wanted to ad­dress was whether we should be in­voking the law at all if we care about the right to protest. Ultimately, I think we could have much more strongly pro­tected rights of protest and still limit them in this kind of context.

          The Guardian: High court in­junc­tion – the weapon of choice to slap down protests

          Oregon Live: Free speech or har­ass­ment?

  2. Tristan Stewart-Robertson
    18 April 2012 at 11:32 am

    Interesting read. I would ac­cept it is prob­ably har­ass­ment, though I would be con­cerned with lim­iting protests too much gen­er­ally. But on a wider level, I have on­going con­cerns, as you prob­ably know, with the “cul­ture wars” on both sides of the pond, be­cause we’re all working ourselves into a frenzy and an in­ab­ility to talk to each other re­spect­fully and ad­vance to new po­s­i­tions. Look at the level of de­bate: you want tar sands, or you’re a com­munist; Obama is evil, or you’re a so­cialist; you’re pro-​life, or you de­serve to be killed for not being pro-​life; you want Scottish in­de­pend­ence, or you love the Tories; you want pri­vacy or you’re a paedo. They’re logic sys­tems that are im­possible to re­solve, fed by en­abling web­sites such as Comment is Free (ie everyone argue your po­s­i­tion as loudly as pos­sible). It’s all fun and Guardian colum­nists til someone loses an eye… But I’m prob­ably nuts ;)

    • Victoria Louise Ridler
      18 April 2012 at 11:37 am

      - agreed. And I worry too about the ca­pa­city for the law ap­plied in this case to be­come ex­tended to fur­ther cases. Sadly, I don’t think we need pre­cedent around an abor­tion clinic for to see the way in which the law is used to limit what ought to be re­spected as peaceful rights to protest. It already does — but I think we do need to make ar­gu­ments for why legal limits should or should not apply in dif­ferent situ­ations. Yeah, the cul­ture wars are a scary thing. I am happy to have an honest and re­spectful dis­cus­sion with someone who doesn’t agree with me (just not in front of a clinic.)

  3. Tristan Stewart-Robertson
    18 April 2012 at 11:38 am

    In the sense of lim­iting protest in a par­tic­ular phys­ical space, MPs get more pro­tec­tion than women do.

    • Victoria Louise Ridler
      18 April 2012 at 11:38 am

      Thanks, Tristan, I was just thinking about that.

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