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March|April 2006
The Accidental Abolitionist By Jake Lundberg
Elsewhere
A Firebrand Flickers By Deborah Dinner
Lordly Law By Louise Arimatsu

A Firebrand Flickers

The legendary feminist Catharine MacKinnon spurred the law to protect women, but the next wave is tired of feeling sheltered.

By Deborah Dinner

NEARLY THREE DECADES AGO, Catharine A. MacKinnon, the firebrand lawyer and scholar, played a critical part in transforming sexual harassment from an intractable, widely accepted fact of working life into an illegal practice. By the mid- 1970s, second-wave feminists had begun to discuss and protest the unwanted sexual advances, demands, and hostility that women faced on the job. Their technique was consciousness-raising: By sharing personal narratives in a group setting, women were able to recognize that their individual experiences had a common foundation and to develop agendas for change. At the time, however, no court recognized as a form of sex discrimination even outright requests for intercourse in exchange for employment.

In 1974, MacKinnon, then pursuing graduate and legal studies at Yale, heard of an administrative assistant at Cornell University who resigned after being refused a transfer when she complained of her supervisor's harassing behavior, and who was denied unemployment benefits because she quit for "personal" reasons. It was at a consciousness-raising session about this and other women's workplace experiences that the term "sexual harassment" was first coined. Angry about the story and what it stood for, MacKinnon began working on a legal argument that would let women sue for sexual harassment.

Over the next several years, MacKinnon circulated her manuscript among lawyers engaged in similar efforts who drew upon her ideas and shared information about their cases with her. The New York Times has described the collaboration among MacKinnon and other feminist attorneys as leaving "some disagreement about who deserves credit for each new insight." But no one disputes that MacKinnon's groundbreaking scholarship, which she collected in her 1979 book Sexual Harassment of Working Women, played an essential role in the efforts of attorneys, individual plaintiffs, and activists to gain for women the legal right to sue their employers for sexual harassment.

The daughter of a conservative Republican who served as a Minnesota congressman from 1947 to '49 and as a federal judge on the United States Court of Appeals for the D.C. Circuit from 1969 until his death in 1995, MacKinnon grew into an ideologue of a far different political persuasion. She spent much of the '70s as a graduate student in New Haven where, in addition to studying political science and obtaining her law degree, she worked with the Black Panthers, protested the Vietnam War, studied martial arts, and found an ideological home in the women's movement. During the 1980s, she held a series of visiting positions at major law schools including Chicago, Harvard, Stanford, and Yale, but her controversial scholarship frustrated her chances at a more permanent position despite her escalating prominence. Eventually, the University of Michigan Law School offered her a tenured position, and MacKinnon now teaches there and at the University of Chicago Law School.

MacKinnon's cause is to combat violence and sexual aggression against women, embracing a philosophy of lawyering that proceeds from individual narratives to legal principle. To advance her conception of equality, she has made women's experience speak to legal theory. Of all of her work, that on sexual harassment has had the most profound effect on the law, but by combining scholarship with litigation and political mobilization, she has also recast the law's—and society's—understanding of rape and pornography, in the United States and abroad. Two anthologies that include 25 years of MacKinnon's published and unpublished essays, articles, and speeches—Women's Lives, Men's Laws (2005) and Are Women Human? and Other International Dialogues (forthcoming in April)—provide insight into the theory and practice of a creative and passionate advocate.

BEFORE MACKINNON'S WORK ON SEXUAL HARASSMENT, feminist attorneys had used antidiscrimination statutes to combat practices that distinguished between male and female job applicants or employees: sex-specific job advertisements, discriminatory firing, unequal pay, and the like. But no one had successfully litigated a case using the theory that behavior related to sexuality could constitute sex discrimination. To use existing civil rights law to address sexual harassment, feminist attorneys had to establish that practices like demanding intercourse in exchange for jobs or promotions amounted to discrimination on the basis of gender.

In the mid-1970s, judges responded skeptically to the first cases making this claim. Some defined all sexuality in the workplace as personal, others as universal, or biological, or as unrelated to employment. Then, in 1977, a landmark case in the D.C. Circuit found that a male supervisor who abolished a female employee's job because of her unwillingness to engage in an affair had done so because of her gender. (MacKinnon played no role in the litigation; her father concurred with the ruling.) The central insight of the case, MacKinnon later wrote, was that sexual harassment occurs as an expression of men's and women's unequal social status. In 1986, in a case co-litigated by MacKinnon, the Supreme Court held that sexual harassment could constitute sex discrimination and also moved the law beyond quid pro quo situations to include pervasive sexual advances or pressures amounting to a "hostile environment."

MacKinnon's role in creating sexual harassment law was the beginning of her effort to transform the legal meaning of sex equality. The philosophy behind the way we think about equality today is Aristotle's principle that like individuals should be treated alike. In the United States, this is considered the liberal conception of equality and takes the form of a requirement that "similarly situated" individuals be treated the same under the law. The problem is that this formal approach does not treat issues such as reproductive control and sexual assault—exactly where the differences between men and women are most relevant—as questions of sex equality.

As a result, antidiscrimination law bypasses those social issues, conditions, and practices in which women's subordination is most powerful and intransigent. In a 1974 case, the Supreme Court held that discrimination against pregnant women did not constitute sex discrimination because not all women become pregnant and because men cannot become pregnant. It took congressional legislation in 1978 for the legal system to recognize pregnancy discrimination as sex discrimination. Similarly, MacKinnon writes that "everyone knows" that "abortion is a sex equality issue," but the court has instead located the abortion right in the right to privacy because it does not put pregnancy within the framework of sex equality. Thanks to MacKinnon, sexual harassment law is an exception to the predominant legal definition of equality; that area of law now recognizes certain behaviors and relationships in the workplace as sexual and as manifestations of sex inequality.

MacKinnon has had less success in her attempts to apply a substantive definition of sex equality to the law of rape and pornography, but she has changed the terms of popular and legal debate. The problem, as she sees it, is that so much of the sexual violence that occurs is not illegal. MacKinnon's goal is to shift the legal boundaries between acceptable sex and unacceptable violence, by exposing the character and extent of violence that is allowed to happen within current legal standards.

Since the early 1980s, MacKinnon has argued that bias against women persists in rape laws, despite reforms making the language of the laws sex-neutral—now, according to the law in some states, men can also be raped—and eliminating the marital rape exception, which used to foreclose any legal recourse for women raped by their husbands. "The law is designed so that rape is what somebody else does and what almost never happens: so that what is done all the time . . . can be done," she wrote in an article reprinted in Women's Lives. State criminal laws are still modeled on an idea of rape as an assault by a stranger that takes place on the street, while in reality most rapes are by familiars and occur inside the home. MacKinnon finds the law's conception of consent so passive that it would sanction sex with an inert body, and advocates for a new legal standard that would require each partner to express that sex is "welcome." She also opposes a defense available in many states—mistaken belief in consent—because it takes the perspective of the rapist rather than the victim. But her overall goal is a shift from the law's focus on consent, which relates to an individual psychic state, to coercion, which derives from the unequal status of women and men.

MacKinnon's arguments about sexual violence against women entered the public arena when she focused her attention on pornography. In 1983, when MacKinnon was at the University of Minnesota Law School for a one-year teaching appointment, the Minneapolis Zoning Commission asked her to testify about an ordinance restricting stores that distributed sexually explicit material. MacKinnon took the opportunity to advocate for an ordinance that would do much more. Together with the late Andrea Dworkin, the radical feminist writer, she designed a civil rights law that would address pornography not under the conventional legal rubric of obscene speech but as an issue of sex discrimination. MacKinnon organized hearings on the law, at which women testified about the abuse they experienced in making porn movies and women and men spoke about how pornography encourages abusive relationships, battery, and rape.

The Minneapolis City Council twice passed the law, but the mayor vetoed it each time on the grounds that it threatened the First Amendment. After Indianapolis passed a similar ordinance, the Seventh Circuit struck down the law as a violation of the First Amendment in a decision affirmed without oral argument by the Supreme Court. Still, MacKinnon and Dworkin's efforts spurred national reflection about the implications of pornography for sex equality, and their crusade means that we now discuss pornography not only in terms of abstract principles of sexual morality or free speech but also in terms of the tangible harms inflicted by the porn industry.

The Minneapolis law would have created a civil cause of action for people "who are coerced into pornography, forced to consume pornography, defamed by being used in pornography without consent, [or] assaulted due to specific pornography." But the breadth of the law lay in its extension of the cause of action to anyone "subordinated as a member of a sex-based group through traffic in pornography as legally defined." The law reflected MacKinnon's belief that pornography harms all women—including those who don't make it, partake of it, or feel victimized by it—by objectifying them, sexualizing their subordination to men, and, at its most extreme, turning violence into sex. Pornography, she argues, also increases men's demand for prostitution and encourages men's discriminatory attitudes and violent behavior toward women.

The argument that MacKinnon constructs against pornography is powerful. For most visual pornographic images that exist, she reminds readers, a woman was actually the victim of the act depicted. MacKinnon's rhetorical power increases with each of the shocking pornographic images she describes.

But what her thinking on the issue lacks is nuance or degree. She fails to explain, for example, whether pictures of fellatio subordinate women in the same way as those in which, as she writes, "a woman actually had to be tied or cut or burned or gagged or whipped or chained, hung from a meat hook or from trees by ropes. . . ." Similarly, her tendency to refute First Amendment objections by describing the violence involved in making pornography does not answer why sex equality should trump free speech in judging pornographic images that aren't violent.

MacKinnon's most compelling scholarship on pornography emerges from her reports on genocide in the former Yugoslavia. In the mid-1990s, she wrote extensively about Bosnian and Croatian victims of violence perpetrated by Serbian soldiers. Her essays from that time describe tanks covered in pornography rolling in to "cleanse" villages; 20 rape/death camps in which Serbian soldiers tortured women, at times by acting out the scenes they had seen in pornographic magazines; and Serbian forces' practice of videotaping women's rape and torture, scenes that reportedly turned up on the evening television news in Serb-occupied territory. MacKinnon had a dual purpose in writing these essays: to expose the specific horrors experienced by women in Croatia and Bosnia-Herzegovina and thereby rouse her readers to action and to illustrate her longstanding arguments about pornography's dehumanization of women, its use as a perverse instruction guide for rape, and the repeated violations of women that occur when men consume as pornography videotapes of women's rape.

MACKINNON'S WORK IN BOSNIA contributed to a larger shift in her focus from domestic to international law, the subject of Are Women Human? She argues that the liberal conception of human rights, much like the liberal conception of equality, is based on men's experience. The modern human rights approach, designed to address injuries by states against individuals, fails to adequately protect women from the "peacetime" violence they suffer at the hands of individuals. Even when international law recognizes female civilian victims during wartime, it categorizes them as members of ethnic or national groups and ignores the ways in which they are injured specifically as women. MacKinnon envisions a gender-based international criminal law that would recognize, as acts intended to destroy women as a group, childhood sexual abuse, rape, forced sterilization, battery, dowry burnings, self-immolation, stoning for behavior not conforming to gender rules, prostitution, and pornography.

In 1992, five groups representing female victims in Croatia and Bosnia-Herzegovina enlisted MacKinnon to bring a lawsuit with the aims of helping to end the genocide, bringing the perpetrators to account, providing victims with a forum to tell their stories, and making the law more cognizant of persecution on the basis of ethnicity combined with sexuality. After determining that the International Criminal Tribunal for Yugoslavia did not possess sufficient enforcement powers, MacKinnon brought a lawsuit in a U.S. district court under the Torture Victim Protection Act of 1991 and the 1789 Alien Tort Claim Act, which gives non-citizen victims of torts committed in violation of the law of nations or a treaty of the United States the right to sue in American federal courts. MacKinnon argued that Serbian soldiers' rape of Croatian and Bosnian women, including the forcible impregnation of more than 30,000 of them, constituted genocide, war crimes, and torture.

MacKinnon wrote that commentators had mischaracterized the violence as either rape or genocide, failing to understand it as "continuous both with this particular ethnic war of aggression and with the gendered war of aggression of everyday life." She became one of the most prominent scholars to frame the rapes as a practice of genocide, which targeted women because of their sex and because of the ethnic group to which they belong. In the 1995 case Kadic v. Karadzic, in which MacKinnon served as co-counsel, the Second Circuit Court of Appeals became the first U.S. court to recognize rape as an act of genocide; in 2000 a jury verdict awarded $745 million in compensatory and punitive damages to the plantiff Croatian and Bosnian Muslim women and children.

THIRD-WAVE FEMINISTS will likely find MacKinnon's international work her most provocative. In addition to essays on "genocide's sexuality," Are Women Human? includes comparative scholarship on examples of other conceptions of equality, like that of the Canadian Charter of Rights and Freedoms and some parts of India's constitutional equality jurisprudence, which MacKinnon thinks the United States can learn from. Rather than treating legal equality as a question of sameness or difference, these nations are beginning to recognize how inequality stems from social hierarchies and historical disadvantage. MacKinnon also begins to theorize how international humanitarian, criminal, and human rights laws may be used to rectify women's subordination in the United States. For example, she supports using international anti-trafficking laws to stop the coercion of women into the American porn industry.

Despite the continued relevance of MacKinnon's theories, her voice may not be the best-suited to a feminist movement that has, in her own words, gone "at once mainstream and underground." MacKinnon's tendency to characterize men as oppressors and women as victims is unlikely to appeal to young feminists with a proliferation of political commitments and with identities that include more than gender. She has been taken to task for not sufficiently considering how women's social positions are also shaped by race and sexual orientation. MacKinnon's tone misses the pitch of today's young feminists in other ways as well. The women whom MacKinnon writes about are victims. They are abused and battered, raped and humiliated, and murdered. Without denying the persistence and scale of sexual violence against women, today's feminists may tire of MacKinnon's relentless fulmination about women's place in society. MacKinnon envisions gender equality as the removal of power relations from sexuality and, to that end, seeks to use the law to protect women from coercion—whether into the porn industry or into unwanted sex. But to young feminists, there is a difference between making the law sensitive to power structures and turning it into a paternalistic tool that associates femininity with victimhood in its efforts to protect.

Third-wavers' most substantive point of contention centers on MacKinnon's view of pornography. Some feminists who agree with MacKinnon that pornography contributes to women's subordination oppose her antipornography stance out of a commitment to free speech and a belief that a specific criminal law could successfully address coercion, assault, and injury that occurs in the production of pornography. In the 1980s, MacKinnon and Dworkin's antipornography campaign instigated a heated contest within the feminist movement about whether the previous two decades' sexual revolution had deepened women's exploitation, or whether women's equality depended on finally triumphing over the sexual double standard through such means as achieving greater access to pornography that women find pleasurable. The controversy contributed to the unraveling of second-wave feminist coalitions. From today's perspective, the advocates of further sexual liberation seem to have won, at least in the pornography debate. Many women, including self-identified feminists, enjoy pornography made for heterosexual women and lesbians, as well as some forms of conventional porn. They discriminate between porn they find offensive and porn they find erotic, and they are able to play with the idea that submission can be sexy, without giving up their own demands for empowerment in real-life sex. MacKinnon believes that women who enjoy pornography do so only because society teaches them to associate sexual objectification with arousal; she regards feminist support for or tolerance of pornography as elitist academic posturing. Dismissing women's sexuality as a form of false consciousness seems petty, and MacKinnon's categorical opposition to pornography appears out of touch with today's culture.

Regardless of how you view MacKinnon's theories, Women's Lives, Men's Laws and Are Women Human? hold pragmatic lessons for the next generation of activist lawyers. It's significant that MacKinnon achieved legal protection against sexual harassment by changing the common law, but didn't succeed in getting anti-pornography ordinances passed. The evolution of the law on a case-by-case basis, one plaintiff and one judge at a time, may prove more sensitive to marginal groups' experiences and may remain more insulated from political backlash than legislative reform, though the latter is tempting because it can happen swiftly and have broad impact. In addition, MacKinnon advocates for civil remedies because that puts the power to initiate and direct legal change in the hands of the disadvantaged. Ultimately, MacKinnon means to empower female victims of violence and discrimination by making the law accessible and responsive to them.

Deborah Dinner graduated from Yale Law School in May 2005 and is a Ph.D. candidate in the history department at Yale University.

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