three - Justifying Criminalisation: Recognition, Redress and Justice

Summary

The law needs to catch up. The government needs to catch up with the times and implement something that stops people thinking it's okay.

(Lisa, quoted in Gallagher, 2019e)

In her pathbreaking book Sexual Harassment of Working Women, Catharine MacKinnon (1979, xii) stated: ‘I hope to bring to the law something of the reality of women's lives’. In doing so, she succeeded in generating public recognition of the extent and nature of sexual harassment, as well as establishing how law may provide some redress for its harms. Such a project – to demonstrate law's failures to recognise and address women's experiences, and to then reshape, revise and reform the law – has been the work of feminists, scholars, activists and lawyers over decades. Recognising that law can be a powerful agent of change, it has been harnessed to secure greater equality, liberty and freedom for women.

At the same time, law continues to be a bulwark against change. It continues to oppress, exclude and minimise claims and interests, particularly from black, minoritised and other marginalised communities and individuals. For some, therefore, engaging with law and advocating for law reform will never redress such oppressions; the solution being prison abolition and dismantling the entire edifice of law (Smith, 2010; Dixon and Lakshmi Piepzna-Samarasinha, 2020). Law, therefore, is a site of struggle: for meaning and recognition of harms and experiences, for meaningful redress, and for the multiple meanings of justice.

It is with an understanding of these tensions that this chapter considers the possibilities and limitations of turning to the criminal law. We outline our approach, identifying the need for a nuanced and complex understanding of how, when and why we should, or should not, use the criminal law. In the end, we suggest that the criminal law has a role to play in providing recognition and redress to some victim-survivors of cyberflashing, as well as supporting education and prevention measures; albeit within a framework that appreciates the considerable challenges of deploying the criminal law, not least its uneven application in practice.