Vulgar? Yes. Offensive? Definitely.
But a judge in Newfoundland ruled this week that when Justin Penton yelled “f**k her in the p***y!” at NTV reporter Heather Gillis from his passing truck last spring, he did not commit a crime.
Penton, 28, is one of the dozens of men who have shouted the phrase (often shortened to FHITP or FHRITP) at female television reporters outside sporting events, during demonstrations, on school campuses and – perhaps most absurdly – as a reporter conducted an interview about street harassment in Calgary.
WATCH: Montreal reporter confronts FHRITP hecklers
Why couldn’t he be convicted?
Penton never denied he had yelled the phrase at Gillis, and apologized after the fact. But he was eventually accused of causing a public disturbance, with the encouragement of the Royal Newfoundland Constabulary and backed by the eyewitness account of the now-mayor of St. John’s.
Still, Judge Colin Flynn dismissed the charge on Tuesday.
That decision drew heavy criticism on social media, but legal experts have acknowledged that the judge was operating within the bounds of Canadian law.
Section 175(1) of the Criminal Code notes that causing a “disturbance” in or near a public place can involve “fighting, screaming, shouting, swearing, singing or using insulting or obscene language,” being drunk, or “impeding or molesting other persons.”
That’s a broad definition, however, so precedent is important. In Penton’s case, one key precedent involved a Supreme Court case heard in the 1990s, in which a man from Milton, N.S., screamed obscenities at his neighbour from his porch.
The lower-court judge found that the neighbour was “disturbed” by the man’s conduct, and convicted him. But the Supreme Court quashed that decision, noting that a disturbance needs to be “something more than mere emotional upset or annoyance.”
WATCH: U.S. man charged with sexual harassment for yelling at reporter interviewing cop
Before someone can be deemed as disturbing the peace, the country’s highest court added, their behaviour must result in “an interference with the ordinary and customary use by the public of the place in question.”
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Gillis was finishing up a one-on-one interview outside a city dump when the FHITP incident occurred, and Flynn ruled that “something more than emotional upset and a momentary interruption in a conversation” was necessary to convict Penton.
“Each case turns on its own particular facts,” said Rebecca Bromwich, an Ontario lawyer who also works at Carleton University in the Department of Law and Legal Studies.
“The Criminal Code may just not be that well prepared to deal with this … the judge did say there are circumstances in which that kind of statement could attract criminal liability.”
Terra Tailleur, an assistant professor of journalism at King’s College in Halifax, said she was very discouraged by this week’s court decision. It sends the wrong signal to men who might attempt this behaviour in the future, she noted, and keeps the onus on female reporters to stop what they’re doing, confront or try to identify the perpetrators and then report them to authorities.
“Heather goes to work, and nothing has changed for her,” she said of Gillis.
“She was brave, she went out and she stood up for herself … she ran with this to try and get this behaviour to stop.”
Calls for reform
Police in other jurisdictions have tried various tactics in response to the ongoing problem, including fining a driver in Calgary over $400 under the Traffic Safety Act after he screamed the slur at a journalist from his vehicle.
In Halifax last month, police went the same route as in St. John’s, charging 25-year-old Nash John Gracie with public mischief and causing a disturbance. He’s due in court March 1.
In Toronto, a man was famously fired by Hydro One for his FHITP stunt, but then rehired.
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But this week’s ruling in Newfoundland has led to fresh calls for perceived gaps in the Criminal Code to be closed.
“At the end of the day, we have made policy decisions as a society, historically, to say, ‘We are going to bear rudeness,'” said Bromwich.
“And maybe that’s something that we’re looking at differently … basically, rape culture isn’t part of what we’re going to be OK with. And maybe we need law reform to reflect that, because currently our laws clearly don’t do a good job of protecting against this.”
READ MORE: Here’s what Parliament’s anti-harassment bill does and how it will affect you
Early Wednesday, Newfoundland provincial politician Cathy Bennett said she would introduce a private member’s bill to amend the Labour Standards Act, the provincial Labour Relations Act, and the Occupational Health and Safety Act.
Bennett said the laws, as currently written, don’t address the specific issue of sexual harassment in the workplace.
What about a different charge?
Bromwich said there’s always the possibility that a different criminal charge could have been laid against Penton, noting that the public disturbance charge didn’t really capture the gendered nature of the slur hurled at Gillis.
WATCH: Hydro One rehires engineer fired after ‘FHRITP’ incident
But Bromwich also explained that a charge of uttering threats, for example, would have been challenging to prove, because case law has determined that the threat has to be “pretty specific and direct.”
“So I’m not sure that would have resulted in a conviction either,” she said. “But I was also thinking about hate speech. There are hate speech provisions in the Criminal Code, and gender has been included in that.”
READ MORE: How FHRITP is sexual harassment not just a prank
A charge of criminal harassment, meanwhile, would be hard to make stick because it would require that Penton intended to cause Gillis to be afraid for her safety, or the safety of others, and that her fear be reasonable.
“The way harassment is defined, is this sort of sustained pattern of behaviour,” Bromwich added.
Tailleur said that, currently, it seems like “there’s no stick” when it comes to FHITP incidents. She said she’ll keep talking openly with her female students about the problem, but at least for now, she doesn’t see it going away.
“I honestly don’t know what the answer is, other than, ‘Let’s see what sticks,'” Tailleur said. “Because there is going to be a next time this happens.”
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