Mackinnon’s Textual Harassment

[Women’s Lives, Men’s Laws, Catharine A. Mackinnon, Harvard University Press, 558 pages] 

The baleful influence of feminist Catharine Mackinnon on American and Canadian jurisprudence cannot be underestimated. With relatively few obstacles from the dreaded patriarchy, Mackinnon, professor of law at the University of Michigan, “teacher, writer, and activist,” has been transforming law since the 1980s. Her legal conquests, especially in developing sexual-harassment law, are the subject of this meaty volume, which comprises speeches and screeds Mackinnon has disgorged over 25 years.

If “the pale, patriarchal, penis people” have failed to hinder Mackinnon’s successes, neither has her cold, inflexible, and fundamentally unscholarly mind—the mind of a propagandist and a casuist, in Camille Paglia’s estimation—or her inability to write. The blurbs bedecking Women’s Lives, Men’s Laws promise “the deepest and best feminist writing around” and writing that is “fresh, concise and incisive.”

Mackinnon, however, is a poor writer and an obscurantist, capable of turning phrases like, “Who that needs this equality can get it?” and, “The rules of everyday life, in this sense, are that law which is not one, the law for women where there is no law.” In addition to her stylistic and syntactic tics, there’s a plain crazy component to Mackinnon’s writing—a preoccupation with snuff films, for instance. That urban myths and other ineptitudes have escaped editorial vigilance is unsurprising in feminized, affirmative-action driven America.

Plucked from a law-review journal, Chapter 12, “Reflections on Sex Equality Under Law,” offers a relatively clear exposition of Mackinnon’s position. First-wave feminists strove for equality under the law, demanding only that existing law be applied to women. Due to their “assimilationist” approach, Mackinnon dubs them “domesticated feminists.” Because “[n]o woman had a voice in the design of the legal institutions that rule the social order,” Mackinnon, in opposition to these Aunt Toms, concludes that the law itself is invariably flawed. If to be a woman is to be part of a group that has been and still is institutionally abused, remedies must transform the law, not merely apply it equally.

Women Mackinnon views as a besieged class of helots, men as members of a ruling elite that refuses to let go of patriarchal privilege and power. The former must fight to unseat the latter. And fight Mackinnon does; she hasn’t stopped fighting since her first major victory in 1986. Unfortunately, she fights just like a woman: underhandedly, her weapon of choice being the civil law with its lower burden of proof.

In the landmark Meritor Savings Bank v. Vinson decision, the United States Supreme Court applied Mackinnon’s theory of sexual harassment as sex discrimination. The plaintiff, Mechelle Vinson, alleged her supervisor at the bank, Sidney Taylor, sexually harassed her, thus violating Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex.

To read Mackinnon’s febrile descriptions, Taylor’s “repeated rapes” consisted in standing over the plaintiff in the vault, waving his membrum virile at her and laughing. Court briefs aren’t as comical; they acknowledge the he-said-she-said quality of the case, and concede the parties presented conflicting testimony about the existence of a consensual sexual relationship between the respondent and the complainant. Still, the paradigm that prevailed—Mackinnon’s—required that these incidents be treated not as if they were “outrages particular to an individual woman,” but as “outrages” that were integral to “her social status as a woman worker.” Thomas Nagel of the Times Literary Supplement explains this unintuitive approach: “These are not just injuries to an individual who happened to be a woman: she is subjected to them because she is a woman.”

It was bad enough when under anti-discrimination law employers lost control over their businesses. Worse was in store: the “radical paradigm of sexual harassment as sex discrimination” allowed the prohibition of naturally licit, previously protected speech, based upon no more than a complainant’s vague, subjective feelings of unease. Sexual harassment had been redefined so that women could sue an employer for creating a “hostile work environment,” rather than because they had been pressured for sexual favors or experienced physical aggression.

With this twist, the Mackinnonites had sundered the already excessively broad tort standard, which applied to an intentional infliction of emotional distress. The presumption of innocence, or traditional defenses such as a lack of intent to harm, or absence of harm, or even the presence of consent, were no longer impediments to initiating charges in civil suits—and increasingly in criminal cases. Mackinnon’s legal conquests thus spelt the defeat of “neutral principles of constitutional law.” Sexual-harassment kangaroo courts are her unique contribution to obliterating the Rights of Englishmen in companies and across campuses. But then, in Mackinnon’s world—now ours—accused men are symbols of a larger sickness, for which they must pay by forfeiting their rights. Indeed, individual liberties have no place in her polemic. She has no use for such anachronisms, especially not for carriers of the Y chromosome.

To the illiberal Mackinnon, individual rights are but an excrescence of the patriarchy: witness how the First Amendment has been interpreted to allow men their pornography. Privacy is of the same provenance; it only cloaks misogynist machinations. Tellingly, Mackinnon defends abortion not on the basis of privacy or dominion over one’s person but on the basis of inequality:

The effects of women’s inequality in procreation can range from situations in which the woman is prevented from conceiving, chooses to conceive and deeply desires to deliver but the baby dies, or does not choose to conceive but is forced to deliver. … However difficult an abortion decision may be for an individual woman, it provides a moment of power in a life otherwise led under unequal conditions that preclude choice in ways she cannot control.

To say the puritanical Mackinnon has sex on her mind is an understatement. When it comes to prostitution and pornography, she is a woman possessed, offering up as proof lengthy and lurid descriptions. Again, she demands these activities be evaluated in the context of the sexual subordination of women by men.

Prior-restraint justifications, which rely on foreseeable not actual harm, or on assumptions often not in evidence, undergird her rush to proscribe the making and marketing of this stuff. Dare to suggest that the (patriarchal) institution of private property allows men and women alike to determine their exposure to pornography, and you risk this schoolmarm’s wrath. A classical liberal like Judge Richard Posner, whose monograph, Sex and Reason, Mackinnon critiques, might argue that third parties have no place in voluntary sexual transactions between consenting adults.

But choice and agency are missing from Mackinnon’s understanding of women. In effect, Mother Mackinnon is saying that women don’t know their minds. At her mercy, they would be infantilized, becoming wards of the state, incapable of rendering consent. The paternalism Mackinnon proposes is predicated on the sort of state intervention incommensurate with a free society—for which she is unapologetic.

If Mackinnon is not about a free society, neither is she about first principles. Consider her “legal realism.” She believes “[l]egal theory should analyze the legal issues in terms of the real issues, and strive to move law so that the real issues are the legal issues.” What might be viewed as an ostensibly laudable quest for context proves problematic because Mackinnon’s highly idiosyncratic version of reality is the only admissible context. It’s her version or no version. While Mackinnon rightly disdains the postmodern take on truth, she also loathes “neutral principalism”—neutrality, objectivity, and equality before the law. Ultimately, Mackinnon’s theory of justice is not metaphysical but mercenarily political.

It’s also self-contradictory. Implied in her deployment of the law to transform women’s daily lives is a belief in change—reality isn’t immutable. Yet she treats the patriarchy as though it were cast in concrete. How is it possible to change women’s lives unilaterally without altering men’s lives as well? I don’t expect men’s circumstances to move Mackinnon. But is there no significance to the fact that women continue to live longer than men, that many more men commit suicide, that men are more likely to be unemployed and less likely to get another job, and that they are more likely to suffer lethal industrial accidents?

Is it of no experiential importance that of the 2094 soldiers who’ve died so far in Iraq and the 15704 who’ve been wounded, most are men? Not in Mackinnon’s static and stony universe. Here she is up to her clavicles in self-contradiction, a condition the Greek philosophers deemed “less than human, less than coherent, less than sane.” But then, they were of the patriarchy.

More pointedly, Mackinnon’s theoretical castles-in-the-sky have mocked out of meaning genuine human suffering. As a one-time AIDS counselor in South Africa, the reviewer might be in a position to offer a measure of just what a “Mad Hatter” Mackinnon is. Does she know that in one of the more peaceful and prosperous places in Africa a woman—toddlers and babies included—is raped every few minutes? Such trammels of despair are rare in distaff America.

Yet there is nothing in Mackinnon’s disquisition to demonstrate even remotely she understands the difference between the liberated, sexually overbearing, self-adoring “Girls Gone Wild” of North America and the victims of, say, the sex-slave trade in Thailand, Mauritania, and India. Or victims of tribal justice in Pakistan, where village councilors mete out rape to women on the losing side of a dispute.

The strength of ideas rests on their relationship to reality. Mackinnon’s unrealistic fulminations against a phantom patriarchy exist in the arid arena of pure thought. There are places where Catharine Mackinnon might pursue her métier more productively. Decamping to Darfur is one option—her work will have relevance there.

©2006 By Ilana Mercer
Reviewed in The American Conservative
January 16