Law's expressive value in combating cyber gender harassment.

Author:Citron, Danielle Keats
 
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The online harassment of women exemplifies twenty-first century behavior that profoundly harms women yet too often remains overlooked and even trivialized. This harassment includes rape threats, doctored photographs portraying women being strangled, postings of women's home addresses alongside suggestions that they are interested in anonymous sex, and technological attacks that shut down blogs and websites. It impedes women's full participation in online life, often driving them offline, and undermines their autonomy, identity, dignity, and well-being. But the public and law enforcement routinely marginalize women's experiences, deeming the harassment harmless teasing that women should expect, and tolerate, given the internet's Wild West norms of behavior.

The trivialization of phenomena that profoundly affect women's basic freedoms is nothing new. No term even existed to describe sexual harassment of women in the workplace until the 1970s. The refusal to recognize harms uniquely influencing women has an important social meaning--it conveys the message that abusive behavior toward women is acceptable and should be tolerated.

Grappling with the trivialization of cyber gender harassment is a crucial step to understanding and combating the harm that it inflicts. My previous work, Cyber Civil Rights, explored law's role in deterring and punishing online abuse. This Essay emphasizes what may be law's more important role: its ability to condemn cyber bender harassment and change the norms of acceptable online behavior. Recognizing cyber harassment for what it is--gender discrimination--is crucial to educate the public about its gendered harms, to ensure that women's complaints are heard, to convince perpetrators to stop their online attacks, and ultimately to change online subcultures of misogyny to those of equality.

TABLE OF CONTENTS INTRODUCTION I. CYBER HARASSMENT THROUGH A FEMINIST LENS A. Understanding Cyber Gender Harassment B. Cyber Harassment's Gender-Specific Harms 1. Distinct Impact on Targeted Women 2. The Broader Consequences of Cyber Gender Harassment II. THE PROBLEM WITH TRIVIALIZING CYBER GENDER HARASSMENT A. Recurring Patterns B. Critiquing the Trivialization of Cyber Gender Harassment C. A Troubling Consequence of Trivialization: The Underenforcement of Criminal Law III. THE IMPORTANCE OF LAW'S EXPRESSIVE MESSAGE A. A Cyber Civil Rights Agenda B. The Expressive Role of a Cyber Civil Rights Agenda CONCLUSION INTRODUCTION

The harassment of women online is a pernicious and widespread problem. (1) It can be severe, involving threats of sexual violence, doctored photographs of women being suffocated, postings of women's home addresses alongside the suggestion that they should be raped, and technological attacks that shut down feminist blogs and websites. (2) Cyber harassment is a uniquely gendered phenomenon--the majority of targeted individuals are women, (3) and the abuse of female victims invokes gender in threatening and demeaning terms. (4)

Such harassment has a profound effect on targeted women. It discourages them from writing and earning a living online. (5) It interferes with their professional lives. It raises their vulnerability to offline sexual violence. It brands them as incompetent workers and inferior sexual objects* The harassment causes considerable emotional distress. (6) Some women have committed suicide. (7)

To avoid future abuse, women assume gender-neutral pseudonyms or go offline, even if it costs them work opportunities. (8) Others curtail their online activities. (9) For the "digital native" (10) generation, forsaking aspects of the interact means missing innumerable social connections* Although online harassment inflicts the most direct costs on targeted individuals, it harms society as well by entrenching male hierarchy online.

But no matter how serious the harm that cyber gender harassment inflicts, the public tends to trivialize it. Commentators dismiss it as harmless locker-room talk, characterizing perpetrators as juvenile pranksters and targeted individuals as overly sensitive complainers. (11) Others consider cyber gender harassment as an inconvenience that victims can ignore or defeat with counterspeech. (12) Some argue that women who benefit from the internet have assumed the risks of its Wild West norms. (13) Although the arguments differ, their message is the same--women need to tolerate these cyber "pranks" or opt out of life online. This message has the unfortunate consequence of discouraging women from reporting cyber gender harassment and preventing law enforcement from pursuing cyber-harassment complaints. (14)

The trivialization of harms suffered by women is nothing new. (15) Society ignored or downplayed domestic violence's brutality for over 200 years. (16) No term even existed to describe sexual harassment in the workplace until the 1970s, despite the pervasiveness of the practice. (17) In light of this history, the current refusal to take seriously the cyber harassment of women is as unsurprising as it is disappointing.

Due to the internet's relative youth, this is an auspicious time to combat the trivialization of cyber gender harassment before it becomes too entrenched. If it continues unabated, cyber harassment could very well be the central front of struggles against sexual harassment in the coming decades given our increasing dependence on the net. More people make friends, apply for jobs, and discuss policy online than ever before, shifting their social and professional interactions to the net and with it the risk of sexual harassment. (18) As the market leans toward more realistic sensory experiences in virtual worlds and as these sites become more popular, cyber gender harassment may more closely approximate conventional notions of sexual violence. For instance, Second Life users' avatars have reportedly been forced to perform sexually explicit acts after being given malicious code. (19) These developments, and others like them, would further threaten gender equality in our digital age.

Wrestling with the marginalization of cyber sexual harassment is a crucial step in combating its gender-specific harms. Law has a crucial role to play in this effort. Law serves different functions here. It can deter online harassment's harms by raising the costs of noncompliance beyond its expected benefits. Law can also remedy such harm with monetary damages, injunctions, and criminal convictions. My article Cyber Civil Rights explored antidiscrimination, criminal, and tort law's role in preventing, punishing, and redressing cyber harassment. (20) In this piece, I explore law's other crucial role: educating the public about women's unique suffering in the wake of cyber harassment and potentially changing societal responses to it. Because law is expressive, it constructs our understanding of harms that are not trivial. The application of a cyber civil rights legal agenda would reveal online harassment for what it truly is---harmful gender discrimination. It would recognize the distinct suffering of women, suffering that men ordinarily do not experience or appreciate as harmful.

Once cyber harassment is understood as gender discrimination and not as a triviality to be ignored, women are more likely to complain about it rather than suffer in silence. Law enforcement could pursue cyber harassment complaints rather than just counseling women to get off their computers and seek help only if their harassers confront them offline. As a result, some perpetrators might curtail their bigoted assaults. Viewing cyber harassment as gender discrimination could become part of our cultural understandings and practices. As with workplace sexual harassment and domestic violence, changing the norms of acceptable conduct may be the most potent force in regulating behavior in cyberspace. An antidiscrimination message is crucial to harness law's moral and coercive power. (21)

This piece has three Parts. Part I explores the gendered nature of online harassment. (22) It first defines the phenomenon of cyber gender harassment. It then explores the distinct harms that such online abuse inflicts on targeted women and society.

Part II documents and refutes the view that law should ignore cyber gender harassment due to its triviality. It places this response in its broader context--society has historically marginalized harms that uniquely affect women. As with sexual harassment and domestic abuse in the past, a crucial first step in defeating cyber gender harassment is convincing the public of its seriousness. This Part undertakes that work, exploring the false assumptions that underlie the trivialization critique.

Part III demonstrates the expressive role that law can play in detrivializing cyber harassment and in shaping online behavior. It highlights how law can change the way targeted women, the broader public, law enforcement, and even perpetrators understand cyber gender harassment, drawing on analogies to law's expressive role in changing social norms and behavior concerning domestic violence and workplace sexual harassment. It concludes by explaining why obstacles to law's expressive role are not insurmountable.

  1. CYBER HARASSMENT THROUGH A FEMINIST LENS

    Online harassment is a problem that has a profound impact on women's lives but is little understood. Just as society ignored sexual harassment until scholars and courts recognized it as sex discrimination, a definition of cyber gender harassment is crucial to understanding and tackling its distinct harms to women. No working definition has been constructed, perhaps because cyber gender harassment has been relegated to the shadows of our thinking. This Part fills that void and provides an account of the gendered nature of online harassment, highlighting its distinct effect on targeted women and society.

    1. Understanding Cyber Gender Harassment

      Although cyber gender harassment encompasses various behaviors, it has a set...

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