Legal Commentary

In a scene from the 2010 Egyptian film 678, a woman groped by a stranger on a crowded bus responds by stabbing the man in the groin with a switchblade. The film is an examination of sexual harassment in Egypt as experienced by three women of different social classes.  While the film has won awards and accolades, it has also generated much controversy.  The head of the complaints department of the "Association for Human Rights and Social Justice" has demanded that the film be banned because it encourages women to use violent force against men, especially against their "sensitive places."

The controversy has got me thinking about proportional force. A knife to the groin would strike many of my criminal law students as a disproportionate response to a grope. But is it? What would a proportional response be? What is the appropriate way for a  woman  to respond to unwanted sexual advances from a man, especially if he is bigger or stronger than she is? Or consider this real-life video of a diminutive shop owner in India who chases a groper (an armed soldier) out of her store and proceeds to hit him repeatedly with stones. Is this a disproportionate response? An exactly appropriate response?

When I discuss proportional force with my criminal law students, we usually focus on the obvious: if someone comes at you with his fists, it is generally not proportional to shoot him in the head; it is generally not proportional to respond to mere words with physical violence. The criminal law, with good reason, places great value on minimizing physical harm and deterring violence in general. The emphasis on proportionality makes sense, so long as one thinks of confrontations as personal, discrete encounters between similarly-situated individuals, and of force as a primarily physical concept. In such a conception, there is an equilibrium of sorts between the parties before one party chooses to use physical force, so any moves away from that equilibrium should be made proportionally.

But what about situations that are not characterized by equilibrium, but are already marked by disproportion?  What about situations such as street harassment, which express and reinforce a culture of widespread inequality? Targets of street harassment are overwhelmingly female, and harassers are overwhelmingly male. A recent study of harassment in Egypt indicated that 98% of foreign-born women and 83% of Egyptian women have been exposed to sexual harassment. In India, the phenomenon of so-called "Eve-teasing" is so prevalent that women-only trains have been introduced in major cities so that women can travel to work free of catcalls and groping hands. In the US, street harassment is also alarmingly frequent, with studies showing prevalence rates of 80% or more. While the negative effects of harassment are widespread and serious, women often find themselves "putting up with it" because they don't know what else to do. Many women fear repercussions if they respond; many don't know what kind of response might be effective; and many simply do not have the energy to respond to frequent instances of harassment. Thus, what is already an imbalanced context is made even more so by the under-response of most women.

Women's tendency to under-respond is likely one reason that harassment is so prevalent. If harassers can get away with leering at and groping women on a regular basis with little or no response, there is no incentive for them not to do so. If a society wanted to reduce the prevalence of sexual harassment, then, one way to do so might be to encourage - or at least not penalize - the occasional over-response. In this light, a woman stabbing the man in the groin for groping her may still seem like an extreme response, but perhaps an efficiently extreme one.  In confrontations already marked by a lack of proportion, perhaps the only appropriate response, from the perspective of social equality, is to be disproportionate.