"Defining Law on the Feminist Frontier," New York Times Magazine,
October 6, 1991, by Fred Strebeigh
Catharine MacKinnon photos for NYT copyright Donna Terek
OUTSIDE THE BAGGAGE CAROUSELS at the San Francisco airport, Catharine A. MacKinnon stands next to her truck, writing. Head cocked, feet set wide, pen and legal brief in hand, amid fumes and hubbub she continues work begun six hours earlier, soon after dawn. Tuned to a task and tuning out all else, this MacKinnon stance would be familiar to her students at the University of Michigan, where she arrived last year as a tenured professor of law.
When I am a few yards away, she looks up and waves me into the pickup. It has rust holes in the sides that birds could nest in and an odometer that shows 93,261 miles. Like the 44-year-old MacKinnon, it has spent most of the past decade on the road.
During the 1980's, traveling from campus to campus, MacKinnon became American law's most prominent untenured visiting professor. She was invited to teach at a virtual checklist of great American law schools: Chicago, Harvard, Stanford, Yale and others. Her status as perennial guest was no great compliment. When law professors speak of someone who is invited to teach briefly and then to move on, they say that person does not have a job. During those years, however, MacKinnon may have had as much effect on American law as any professor in the country. Primarily through her work on sexual harassment and on pornography, she became the law's most prominent feminist legal theorist. When she was finally appointed to a tenured position at Michigan, it seemed to signal an acceptance not only of herself but also of feminism in American law, and reinforced the feeling that feminist legal theory may offer the field's most vital new ideas.
Today, as we head for the retreat where she is spending her first-ever academic leave, MacKinnon has been continuing to push the law in directions that might be unimaginable without her. The amicus curiae brief she is working on will be filed in a sexual harassment suit in which the publisher of Penthouse magazine was found to have coerced one of his female employees, a former "Penthouse Pet" named Marjorie Thoreson, to have sex with two of his business associates. Commenting that "sexual slavery was not part of her job description," a New York judge last year awarded Thoreson $4 million in punitive damages for sexual harassment. The case is now on appeal. In her amicus brief, MacKinnon hopes to follow up on what she calls the law's growing willingness to see "a convergence of pornography and sexual harassment."
The chance to do such work without financial worry, MacKinnon says, is something she owes to tenure. "Since writing is really what I do, it's incredible to me that I have this year," she says with evident delight. Michigan law students were less happy when they learned of MacKinnon's leave--in part because she is among the most dynamic legal lecturers in the country, a speaker so forceful that her entire body seems intellectually engaged. Her eyes seem to flash, her shoulders to broaden. Even her hair seems implicated: it begins most classes piled high in an abundant Gibson, but as her lecture unfolds it does also, ending in a cascade down her shoulders. Responding to student demand. MacKinnon will return to Michigan for two weeks in November, giving her lecture course on sex equality in 30 hours of rapid fire.
When I am a few yards away, she looks up and waves me into the pickup. It has rust holes in the sides that birds could nest in and an odometer that shows 93,261 miles. Like the 44-year-old MacKinnon, it has spent most of the past decade on the road.
During the 1980's, traveling from campus to campus, MacKinnon became American law's most prominent untenured visiting professor. She was invited to teach at a virtual checklist of great American law schools: Chicago, Harvard, Stanford, Yale and others. Her status as perennial guest was no great compliment. When law professors speak of someone who is invited to teach briefly and then to move on, they say that person does not have a job. During those years, however, MacKinnon may have had as much effect on American law as any professor in the country. Primarily through her work on sexual harassment and on pornography, she became the law's most prominent feminist legal theorist. When she was finally appointed to a tenured position at Michigan, it seemed to signal an acceptance not only of herself but also of feminism in American law, and reinforced the feeling that feminist legal theory may offer the field's most vital new ideas.
Today, as we head for the retreat where she is spending her first-ever academic leave, MacKinnon has been continuing to push the law in directions that might be unimaginable without her. The amicus curiae brief she is working on will be filed in a sexual harassment suit in which the publisher of Penthouse magazine was found to have coerced one of his female employees, a former "Penthouse Pet" named Marjorie Thoreson, to have sex with two of his business associates. Commenting that "sexual slavery was not part of her job description," a New York judge last year awarded Thoreson $4 million in punitive damages for sexual harassment. The case is now on appeal. In her amicus brief, MacKinnon hopes to follow up on what she calls the law's growing willingness to see "a convergence of pornography and sexual harassment."
The chance to do such work without financial worry, MacKinnon says, is something she owes to tenure. "Since writing is really what I do, it's incredible to me that I have this year," she says with evident delight. Michigan law students were less happy when they learned of MacKinnon's leave--in part because she is among the most dynamic legal lecturers in the country, a speaker so forceful that her entire body seems intellectually engaged. Her eyes seem to flash, her shoulders to broaden. Even her hair seems implicated: it begins most classes piled high in an abundant Gibson, but as her lecture unfolds it does also, ending in a cascade down her shoulders. Responding to student demand. MacKinnon will return to Michigan for two weeks in November, giving her lecture course on sex equality in 30 hours of rapid fire.
MacKinnon at office, University of Michigan (Terek)
FEMINIST LAW'S GOAL--to reveal the roots and reshape the branches of male-formed law--can only be called radical. It seeks to move women from the periphery to the focus of the law's gaze. "Over the next quarter century," Prof. Laurence H. Tribe of Harvard Law School says, "feminist legal theory is likely to be the most fertile source of important insights in the law." He feels it may supplant the two dominant theoretical movements of recent years: critical legal studies (concerned with how legal systems maintain the status quo) and law and economics (concerned with economic consequences of legal decisions).
MacKinnon stands as a sort of polestar at the apogee of feminist law--exerting a pull that seems magnetic, influencing even those who steer divergent courses, highly visible though one among many. Most law schools in America now offer courses taught by professors concerned with feminist legal theory--Robin West at Maryland, Martha L. Minow at Harvard, Patricia Williams at Wisconsin, Katherine Bartlett at Duke, Herma Hill Kay at Berkeley, Mari J. Matsuda at U.C.L.A., Deborah Rhode at Stanford, and many others. Yet MacKinnon has remained, in Rhode's words, "the central figure in feminist legal thought since her early work."
MacKinnon does not win unanimous praise.
Often as iconoclastic as it is original, her work has been attacked from many political sides. A group of prominent feminists has charged her with perpetuating a "sexual double standard," saying her work "resonates with the traditional concept that sex itself degrades women." Judge Richard A. Posner, one of the leading theorists of the conservative approach called law and economics, suggests that MacKinnon "depicts the United States as a vast conspiracy of men to rape and terrorize women. It seems to me grossly exaggerated, and the exaggerations weaken--should weaken--the impact of her thinking." Even some of MacKinnon's allies suggest that her polemical fervor sounds, as one put it, "Stalinist."
However MacKinnon's work is ultimately assessed, she would agree with the standard of measure set by Posner: its impact. MacKinnon focuses on the practical--on what she calls the "crunch," the noise the law makes when it collides with somebody's life. In the Penthouse case, the crunch is the money. "Four million dollars--that anything any man does sexually to any woman is worth that much," she says. Penthouse and its publisher "are on the ceiling about it," she continues, her voice rising. "That for what they did to her, which is routine, they got hit with $4 million in punitive damages. It's unheard of in pimp country."
Sexual harassment--as legal concept or even as familiar phrase--was itself unheard of at the time MacKinnon began studying at Yale Law School. She spent most of the 1970's in New Haven--first as a graduate student in political science and law, later as co-founder of a lawyers' collective and creator of the first course in the women's studies program at Yale. She traces her intellectual and political roots to this time, when she worked with the Black Panthers, studied martial arts, opposed the Vietnam War and found a focus in the nascent women's movement--from which, she often says, "I learned everything I know."
In 1974, reading cases and analysis, MacKinnon found herself thinking that the law had "nothing whatever to do with the problem of sexual inequality as it's experienced by women." At around the same time, she heard about a woman named Carmita Wood, an administrative assistant who claimed that she had resigned her job to escape a supervisor who had bothered her in various ways: he would pin her against her desk or, while talking to her, "stand with his hands shaking in his pockets as if he were stimulating his genitals," Wood said in an affidavit. Wood had complained to another supervisor, who told her to avoid such situations, and then requested a job transfer, which was refused. After resigning, Wood was denied unemployment benefits on the grounds that she left work for "personal" reasons.
To an average lawyer in 1974, Wood's account would have suggested no legal remedy. To MacKinnon, not yet a lawyer, Wood's narrative of sexual pressure leading to lost work and financial distress "just exploded in my mind."
Even 17 years latter, as MacKinnon discusses Wood's story, her muscles tense. "I felt," she says, "this is about everything the situation of women is really about--everything that the law of sex discrimination made it so difficult if not impossible to address. So I decided I would just design something."
What had to be designed was an argument to give women like Wood a legal claim. Soon MacKinnon had drafted the first 125 pages of her argument. which would become part of her first book, "Sexual Harassment of Working Women," published by Yale University Press in 1979. The draft argued that sexual harassment was more than a private harm--in the workplace, it was also sex discrimination and thus prohibited by Federal law. As the draft began circulating--too late to help Wood, whose unsuccessful claim ended in 1975 with rejection by an unemployment insurance appeals board--it reached other lawyers who were attacking harassment. They sent more information back to MacKinnon, a collaborative process that has left some disagreement about who deserves credit for each new insight.
The law traditionally saw discrimination only in a situation where two equivalent groups were treated differently. If women were seen as sexually different from men, the tradition left them open to different sexual treatment. In terms of harassment, this meant, more or less, vive la difference, or boys will be boys, or, as some courts put it, that males' sexual pursuit of women was essentially "personal" or "biological."
MacKinnon's attack on harassment, though designed to accommodate that tradition, simultaneously argued for a new approach that has become pivotal in feminist legal theory. Under this "dominance" approach, a practice is discriminatory if it "participates in the systemic social deprivation of one sex because of sex."
In 1977, she and some former classmates initiated the first case extending the argument to education--asserting that a student who claims she was sexually harassed by a teacher has the right to bring suit against her university under Federal law. Federal courts continued to treat sexual harassment as a regrettable part of normal life; none had produced a controlling precedent that sexual harassment was discriminatory. And then, in July 1977, a unanimous three-judge panel of the United States Court of Appeals for the District of Columbia offered a precedent. The court ruled in Barnes v. Costle that a woman forced to submit to sex in order to keep her job would never have been victimized "but for her womanhood." The law on sexual harassment was beginning to shift.
That decision carried one slightly retrograde concurrence: one judge sought to remind the court that it was dealing with social patterns that to an extent are "normal and expectable." It was an attempt to pull the court back toward the grounds of private harm that Catharine MacKinnon had been working three years to push beyond. That concurring but narrowing judge was George E. MacKinnon, her father.
MacKinnon stands as a sort of polestar at the apogee of feminist law--exerting a pull that seems magnetic, influencing even those who steer divergent courses, highly visible though one among many. Most law schools in America now offer courses taught by professors concerned with feminist legal theory--Robin West at Maryland, Martha L. Minow at Harvard, Patricia Williams at Wisconsin, Katherine Bartlett at Duke, Herma Hill Kay at Berkeley, Mari J. Matsuda at U.C.L.A., Deborah Rhode at Stanford, and many others. Yet MacKinnon has remained, in Rhode's words, "the central figure in feminist legal thought since her early work."
MacKinnon does not win unanimous praise.
Often as iconoclastic as it is original, her work has been attacked from many political sides. A group of prominent feminists has charged her with perpetuating a "sexual double standard," saying her work "resonates with the traditional concept that sex itself degrades women." Judge Richard A. Posner, one of the leading theorists of the conservative approach called law and economics, suggests that MacKinnon "depicts the United States as a vast conspiracy of men to rape and terrorize women. It seems to me grossly exaggerated, and the exaggerations weaken--should weaken--the impact of her thinking." Even some of MacKinnon's allies suggest that her polemical fervor sounds, as one put it, "Stalinist."
However MacKinnon's work is ultimately assessed, she would agree with the standard of measure set by Posner: its impact. MacKinnon focuses on the practical--on what she calls the "crunch," the noise the law makes when it collides with somebody's life. In the Penthouse case, the crunch is the money. "Four million dollars--that anything any man does sexually to any woman is worth that much," she says. Penthouse and its publisher "are on the ceiling about it," she continues, her voice rising. "That for what they did to her, which is routine, they got hit with $4 million in punitive damages. It's unheard of in pimp country."
Sexual harassment--as legal concept or even as familiar phrase--was itself unheard of at the time MacKinnon began studying at Yale Law School. She spent most of the 1970's in New Haven--first as a graduate student in political science and law, later as co-founder of a lawyers' collective and creator of the first course in the women's studies program at Yale. She traces her intellectual and political roots to this time, when she worked with the Black Panthers, studied martial arts, opposed the Vietnam War and found a focus in the nascent women's movement--from which, she often says, "I learned everything I know."
In 1974, reading cases and analysis, MacKinnon found herself thinking that the law had "nothing whatever to do with the problem of sexual inequality as it's experienced by women." At around the same time, she heard about a woman named Carmita Wood, an administrative assistant who claimed that she had resigned her job to escape a supervisor who had bothered her in various ways: he would pin her against her desk or, while talking to her, "stand with his hands shaking in his pockets as if he were stimulating his genitals," Wood said in an affidavit. Wood had complained to another supervisor, who told her to avoid such situations, and then requested a job transfer, which was refused. After resigning, Wood was denied unemployment benefits on the grounds that she left work for "personal" reasons.
To an average lawyer in 1974, Wood's account would have suggested no legal remedy. To MacKinnon, not yet a lawyer, Wood's narrative of sexual pressure leading to lost work and financial distress "just exploded in my mind."
Even 17 years latter, as MacKinnon discusses Wood's story, her muscles tense. "I felt," she says, "this is about everything the situation of women is really about--everything that the law of sex discrimination made it so difficult if not impossible to address. So I decided I would just design something."
What had to be designed was an argument to give women like Wood a legal claim. Soon MacKinnon had drafted the first 125 pages of her argument. which would become part of her first book, "Sexual Harassment of Working Women," published by Yale University Press in 1979. The draft argued that sexual harassment was more than a private harm--in the workplace, it was also sex discrimination and thus prohibited by Federal law. As the draft began circulating--too late to help Wood, whose unsuccessful claim ended in 1975 with rejection by an unemployment insurance appeals board--it reached other lawyers who were attacking harassment. They sent more information back to MacKinnon, a collaborative process that has left some disagreement about who deserves credit for each new insight.
The law traditionally saw discrimination only in a situation where two equivalent groups were treated differently. If women were seen as sexually different from men, the tradition left them open to different sexual treatment. In terms of harassment, this meant, more or less, vive la difference, or boys will be boys, or, as some courts put it, that males' sexual pursuit of women was essentially "personal" or "biological."
MacKinnon's attack on harassment, though designed to accommodate that tradition, simultaneously argued for a new approach that has become pivotal in feminist legal theory. Under this "dominance" approach, a practice is discriminatory if it "participates in the systemic social deprivation of one sex because of sex."
In 1977, she and some former classmates initiated the first case extending the argument to education--asserting that a student who claims she was sexually harassed by a teacher has the right to bring suit against her university under Federal law. Federal courts continued to treat sexual harassment as a regrettable part of normal life; none had produced a controlling precedent that sexual harassment was discriminatory. And then, in July 1977, a unanimous three-judge panel of the United States Court of Appeals for the District of Columbia offered a precedent. The court ruled in Barnes v. Costle that a woman forced to submit to sex in order to keep her job would never have been victimized "but for her womanhood." The law on sexual harassment was beginning to shift.
That decision carried one slightly retrograde concurrence: one judge sought to remind the court that it was dealing with social patterns that to an extent are "normal and expectable." It was an attempt to pull the court back toward the grounds of private harm that Catharine MacKinnon had been working three years to push beyond. That concurring but narrowing judge was George E. MacKinnon, her father.
CATHARINE ALICE MacKinnon's family history covers large sections of her office at the University of Michigan Law. Two six-foot-square quilts, more than half a century old, abundant with blue cornflowers and red poppies and yellow daisies, hang on the walls. The older, called "Life's Work," has adorned most offices in MacKinnon's itinerant life. It was made by her mother's mother, Alice S. Davis, for her best friend, Catharine (Kitty) Pierce, a longtime professor of fine arts at Radcliffe College and Catharine MacKinnon's namesake. (Family and friends call her Kitty.) Alice Davis went to Smith College, as did her daughter and granddaughter--an experience, MacKinnon says as we gaze at her quilts, that teaches you that "women are real"
Catharine MacKinnon's voice presumes authority, made more forceful today by her jet-black, tuxedolike jacket--which has the stark force of judicial robes. Tall and athletic, moving quickly to find books or answer phone calls, she dominates her little office as a judge might his chambers. As she speaks of the quilts, however, her judiciousness becomes zest; her hands make sewing motions.
She speaks more reluctantly of her father, a Federal appellate judge and activist in Republican politics: an adviser to the Presidential campaigns of Eisenhower and Nixon, a one-term Congressman and a Republican nominee for governor of Minnesota. Had growing up with someone so engaged in political life spurred her sense that law could effect social change, I ask?
"That politics is about change is--to put it mildly--not what I was brought up with," she answers.
As to the argument that sexual harassment is sex discrimination, the crucial issue in MacKinnon's early work, she says she never debated it with her father. Before he ruled in the Barnes case of 1977, it would have been unethical; afterwards, unproductive. In any event, she was aiming for a wider audience. In 1979, she took her argument public with "Sexual Harassment of Working Women," which immediately became the definitive work on the subject. In 1986, she took it to the Supreme Court, then hearing its first sexual harassment case.
A bank employee named Mechelle Vinson alleged that the harassment she endured at work was unlawful discrimination under Title VII of the Civil Rights Act of 1964. MacKinnon joined Vinson's legal team, wrote her brief to the court, collaborated with a number of feminist litigators to help Vinson's attorney prepare for oral argument and finally assisted as co-counsel during arguments before the Court.
Vinson's case posed formidable problems, partly because it did not typify the harassment that MacKinnon had defined years before as quid pro quo ("sleep with me or I'll fire you"). Instead, the case presented what MacKinnon defined as a second form of harassment, which came to be known as "hostile environnment." Vinson's testimony--that her supervisor fondled her in front of other employees, for example, or that he followed her into the women's restroom--suggested a difficult environment. But were such condiitions unlawful? The bank argued no; Title VII, it insisted, was intended to cover "tangible loss" of an "economic character" rather than "purely psychological aspects of the workplace environment."
Addressing that challenge, MacKinnon's brief to the Court followed her earlier argument in "Sexual Harassment of Working Women": The two seemingly distinct forms of harassment were as closely linked as points "on a time line." A woman might remain a victim of a hostile environment for years, until she rejected it and was consequently fired, or until she was forced to leave, as Vinson claimed she was, at which time she became a victim of a quid pro quo. For a court to require such a rejection, MacKinnon argued, amounts to forcing "the victim to bring intensified injury upon herself in order to demonstrate that she is injured at all." If a claim of hostile environment is not actionable, then as long as her harasser proceeds "with enough coerciveness, subtlety, suddenness or one-sidedness, while her job is formally undisturbed, she is not considered to have been sexually harassed."
The Supreme Court responded with a unanimous ruling: sexual harassment, "hostile environment" as well as quid pro quo, was sex discrimination.
N 1986, THE YEAR the Supreme Court ratified MacKinnon's first major contribution to American law, she had no paying job. Her only income came from occasional speaker's fees. She was at the midpoint of her decade on the road.
Still, her academic wandering had its rewards. First, in the words of Paul Brest, dean of Stanford Law School, "nobody who has ever had her as a teacher is not affected in a significant way." Law students would imitate her dramatic voice or dress or even her hair, and line up outside her office, as one put it, to "have some of that ferocity channeled at them."
Second, a typical MacKinnon lecture left no ox ungored:
At Stanford, she contended that "'rape is not illegal, it is regulated"
At a National Conference on Women and the Law in New York, she told women lawyers that law school had taught them to "forget your experience" and "become a maze-bright rat."
At Harvard, critiquing legal notions of consent, she asked why, "when a woman spreads her legs for a camera, she is assumed to be exercising free will?"
However influential these years were, the wandering took its toll. She recalls the decade as a "10-year job interview": allegedly social meals that weren't, suggestions that she was too practical for the theorists and too theoretical for the practitioners, a sense that she had "flunked lunch."
Professionally, she also became a target. When MacKinnon was recommended for a visiting appointment at Yale, one professor responded with a memo attacking her book on sexual harassment by claiming it omitted crucial legal precedent. He was wrong; he later admitted he had not read the whole book. The struggle over her appointment received national attention--a prominent headline in The National Law Journal called it "A Battle for Yale Law School's Soul?"
The professional price took a personal toll. She became a nomad, living from rental to rental, each enlivened by visiting compatriots. Despite her openness to friends, a further effect of MacKinnon's decade-long job interview may be her insistence on privacy in the few parts of her life that no interviewer could call work-related.
She did allow me to come along to dinner with a friend, the former psychoanalyst Jeffrey M. Masson, who credits her with offering him "a lot of wonderful free advice" in his libel suit against the writer Janet Malcolm. But the details of the dinner, as well as the conversation, were off the record. She avoids discussing where she lives and, particularly, with whom. This last refusal carries a rationale beyond mere want of privacy. "There is this urgent need," she observes, "to define women by who they have sex with--without that, people don't seem to know how to read."
The forced wandering ended, finally, when the University of Michigan offered tenure. Looking back, some of her friends bridle with outrage. "It's a disgrace," Prof. Owen M. Fiss of Yale says, "that Kitty MacKinnon did not have a position at a major law school. I think it was a stunning indictment of American academic life."
When Guido Calabresi, dean of Yale Law School, reflects on MacKinnon's wandering, he speaks in partial self-indictment: her work on sexual harassment was so original that law faculties did not understand its significance, he says, and MacKinnon "didn't have the patience to write the kind of busywork that we would have understood." Instead, as Calabresi puts it, "she kept herself alive by writing things that shocked us."
MACKINNON'S FIRST shock to the legal establishment appeared in 1982 and 1983 in Signs, the feminist journal published by the University of Chicago. "Sexuality is to feminism what work is to Marxism: that which is most one's own, yet most taken away," the first Signs article began. Following an extended tour of the struggle of feminism with Marxism, the article cut to the roots of male-formed law: "The law sees and treats women the way men see and treat women."
Such an outrageous assertion might have rolled off the broad shoulders of the law had MacKinnon not immediately moved from theory to crunch--rape law as both male-seeing and male-serving. The argument, which even its admirers say takes time to sink in, runs as follows: Law distinguishes criminal rape from legal sex based in part on the viewpoint of men. To be guilty of rape, that is, a man must possess a "criminal mind" (mens rea) for his act to be criminal
Since this criminal mind depends on what the man understood--or what a "reasonable man" should have understood--the problem, as MacKinnon wrote, becomes this: "Rape is only an injury from women's point of view. It is only a crime from the male point of view, explicitly including that of the accused. Thus is the crime of rape defined and adjudicated from the male standpoint." Put another way: Rape law sees women as the accused rapist sees women.
"From whose standpoint," MacKinnon asked, "and in whose interest, is a law that allows one person's conditioned unconsciousness to contraindicate another's experienced violation?"
MacKinnon's critique became a landmark in university courses in feminist legal theory, but it might have remained unnoticed outside the academy had she not turned at the same time to attack another way that men "see and treat women"--pornography. This move put her in direct opposition to much of mainstream feminism and liberalism.
"I want to do something for this woman before I die," MacKinnon said a decade ago, handing a book to a friend. The book was "Ordeal," its author Linda Lovelace, its story a harrowing depiction of imprisonment and torture that Lovelace says she suffered while being coerced to make pornographic films, including "Deep Throat."
MacKinnon first met Lovelace at the suggestion of Andrea Dworkin, a longtime friend who since the early 1970's has contended that pornography shapes men's behavior toward women. MacKinnon sought a legal means to help Lovelace. Their main goal was to end showings of "Deep Throat," in which, as Lovelace put it in sworn testimony, "virtually every time someone watches that film, they are watching me being raped." Ultimately, no lawsuit was brought: the statute of limitations had expired for any existing legal claim.
Not long after, MacKinnon and Dworkin designed the first law school course to focus on pornography, at the University of Minnesota Law School, where MacKinnon was teaching. Soon, Minneapolis residents asked MacKinnon and Dworkin to intervene in their own fight against pornography. The city had attempted to control pornography by zoning it into particular neighborhoods, mostly poor and minority ones. On behalf of those residents, MacKinnon and Dworkin came up with the idea of a local ordinance creating a new legal claim--allowing a woman who could prove she had been harmed by a pornographic work to sue its makers and distributors. In response, the Minneapolis City Council called for hearings to find out if pornography was indeed harming women.
For two evenings, a string of citizens came forward to testify. A woman identified as Carol L., an American Indian, described being gang-raped by men who called her "squaw" and invited her to play "Custer's Last Stand"--apparently referring to a pornographic video game. A woman named Ruth M. recalled that her ex-husband had read pornography "like a textbook"; it taught him, for example, how to tie her up so she couldn't escape. A woman identified as Rita M. testified that, during a Girl Scout camping trip at age 13, she was raped by hunters who had been sitting in the woods reading pornographic magazines, looked up, saw her, called out "there's a live one," chased her down and gang-raped her at gunpoint. Like most women who are sexually abused, says MacKinnon, they did not report their experiences because they did not expect help.
The ordinance omitted moral terms like "obscene" and "prurient interest." It defined pornography as "graphic sexually explicit subordination" of women, through pictures or words, in which also, for example, "women are presented as sexual objects who experience sexual pleasure in being raped" or are shown being "penetrated by objects or animals."
To bring a successful suit under the statute, a woman would have to prove that such pornography had harmed her in a specific way or--under a controversial provision against "trafficking"--had harmed women in general.
But the ordinance fell on hard times. The City Council adopted a version of it; the Mayor vetoed it. Indianapolis adopted it; courts invalidated it. Other cities considered it; none has put it into full effect.
The ordinance gathered potent opposition, including the American Booksellers Association and the American Civil Liberties Union. The most effective attack came from a group calling itself the Feminist Anti-Censorship Task Force (FACT). In a legal brief, FACT contended that the ordinance "reinforces rather than undercuts central sexist stereotypes in our society" and would "censor speech and imagery that properly belong in the public realm." It attacked as vague the ordinance's definition of pornography, including the phrase "sexually explicit subordination." Some interpreters, it contended, might see depiction of "the most traditional heterosexual act as subordinating," because the man would be "in a physical position of superiority and the woman in a position of inferiority." It carried the names of more than 50 prominent feminists, including Betty Friedan, Kate Millett and Adrienne Rich.
MacKinnon exploded. She accused them of misrepresenting the ordinance and "fronting for male supremacists." "The black movement has Uncle Toms and Oreo cookies," she would eventually say. "The women's movement has FACT."
The fate of MacKinnon's anti-pornography ordinance was settled--at least temporarily--in 1985 by a three-judge panel of the United States Court of Appeals for the Seventh Circuit. Writing for that court, Judge Frank Easterbrook found in favor of the right to propagate "opinions that the government finds wrong or even hateful." The ordinance would violate that right, the court ruled, and thus was not Constitutional.
Still, MacKinnon found some encouragement In Easterbrook's decision, which seemed to accept the central premise of the ordinance: "Depictions of subordination tend to perpetuate subordination." he wrote. "The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets. In the language of the legislature, 'pornography is central in creating and maintaining sex as a basis of discrimination.' "
FOLLOWING THAT DECISION, which the Supreme Court affirmed without comment, some of MacKinnon's admirers expected she might end her forays against pornography. In fact, almost the reverse has happened, and a few leading constitutional theorists now predict that, within a decade, she will have carved a new exception in constitutional protection of speech. Meanwhile, MacKinnon is often literally on the road again, trying to prove the deepest of pornography's harms.
In lectures, she often refers to pornography as a continuum on which the end point is "snuff." For years, rumors about "snuff films," in which women or children are killed as part of the sexual experience, have been dismissed as fiction. MacKinnon, however, increasingly believes they exist. People have begun coming to her with stories about their experiences, she says, often as children, of being coerced to appear in films in which victims were killed.
She declines to give details.
She is still gathering information, she says, and is committed to protecting the people who talk with her. But she did agree to read me an example of the stories she has been hearing, with permission of its author and with insistence on the author's anonymity. She had apparently not yet read it herself.
From the minute she began reading, she seemed to regret yielding to my request. The excerpt described what might be called a live performance of snuff: a woman playing the role of mother is sexually assaulted on stage, by an actor and then by audience members, and her little girl is apparently killed. As MacKinnon read, her face became ashen. A vein near her left eye throbbed deep and blue--palpably draining blood from her face.
The pursuit of snuff gambles her credibility, MacKinnon believes, and possibly her physical welfare. Still, she seems intent on the gamble: "Snuff films cast a light on the rest of pornography that shows it for what it is: that it's about the annihilation of women, the destruction of women, the murder and killing of women--in which murder and killing are just the end point that all the rest of pornography is a movement toward."
AT THE END OF last year, in a moment verging on recreation, Catharine MacKinnon walked across the Michigan campus to hear one of the term's intellectual events, the Tanner Lecture. It was to be given by the pragmatist philosopher Richard Rorty, one of her heroes. She had never met him and didn't know what he would discuss.
For his focus, Rorty had chosen what he called an exemplar of "prophetic feminism," whose work he had recently encountered and found "unforgettable." He knew little about her, he said. It never occurred to him, when he began to address his audience at the University of Michigan, that she would be sitting in the rows before him, agog.
Still agog a week later when we met in Washington for our next-to-last interview, MacKinnon described his analysis of her work as "the kind of reading that usually you have to be dead to get." She felt honored beyond reality. As we walked the streets of the capital that morning, MacKinnon was in an associative mood. Passing the White House, she discoursed on male power. At the Washington Monument, she critiqued the purported objectivity--from on high--of male-formed law. As we reached the National Museum of American History, her mind shifted to Rorty's talk.
One of his listeners had asked, Why feminism, and why MacKinnon? He responded, more or less: "Philosophers typically look for symbols of social hope. Hegel found such hope in Napoleon, and Dewey found it in Whitman, and people like me nowadays look toward feminists like MacKinnon."
Her voice rose on all the names but her own - where it fell dramatically. "I mean, what!" she said. She stopped in her tracks, yielding to bewildered laughter. "Whitman?" she continued. "Napoleon? I mean, people are trying to train me to stick my hand in my shirt."
And she did: jutting out her jaw, laughing in her perplexity, plunging a hand into her double-breasted leather coat, standing before the national repository of Americana.
Catharine MacKinnon's voice presumes authority, made more forceful today by her jet-black, tuxedolike jacket--which has the stark force of judicial robes. Tall and athletic, moving quickly to find books or answer phone calls, she dominates her little office as a judge might his chambers. As she speaks of the quilts, however, her judiciousness becomes zest; her hands make sewing motions.
She speaks more reluctantly of her father, a Federal appellate judge and activist in Republican politics: an adviser to the Presidential campaigns of Eisenhower and Nixon, a one-term Congressman and a Republican nominee for governor of Minnesota. Had growing up with someone so engaged in political life spurred her sense that law could effect social change, I ask?
"That politics is about change is--to put it mildly--not what I was brought up with," she answers.
As to the argument that sexual harassment is sex discrimination, the crucial issue in MacKinnon's early work, she says she never debated it with her father. Before he ruled in the Barnes case of 1977, it would have been unethical; afterwards, unproductive. In any event, she was aiming for a wider audience. In 1979, she took her argument public with "Sexual Harassment of Working Women," which immediately became the definitive work on the subject. In 1986, she took it to the Supreme Court, then hearing its first sexual harassment case.
A bank employee named Mechelle Vinson alleged that the harassment she endured at work was unlawful discrimination under Title VII of the Civil Rights Act of 1964. MacKinnon joined Vinson's legal team, wrote her brief to the court, collaborated with a number of feminist litigators to help Vinson's attorney prepare for oral argument and finally assisted as co-counsel during arguments before the Court.
Vinson's case posed formidable problems, partly because it did not typify the harassment that MacKinnon had defined years before as quid pro quo ("sleep with me or I'll fire you"). Instead, the case presented what MacKinnon defined as a second form of harassment, which came to be known as "hostile environnment." Vinson's testimony--that her supervisor fondled her in front of other employees, for example, or that he followed her into the women's restroom--suggested a difficult environment. But were such condiitions unlawful? The bank argued no; Title VII, it insisted, was intended to cover "tangible loss" of an "economic character" rather than "purely psychological aspects of the workplace environment."
Addressing that challenge, MacKinnon's brief to the Court followed her earlier argument in "Sexual Harassment of Working Women": The two seemingly distinct forms of harassment were as closely linked as points "on a time line." A woman might remain a victim of a hostile environment for years, until she rejected it and was consequently fired, or until she was forced to leave, as Vinson claimed she was, at which time she became a victim of a quid pro quo. For a court to require such a rejection, MacKinnon argued, amounts to forcing "the victim to bring intensified injury upon herself in order to demonstrate that she is injured at all." If a claim of hostile environment is not actionable, then as long as her harasser proceeds "with enough coerciveness, subtlety, suddenness or one-sidedness, while her job is formally undisturbed, she is not considered to have been sexually harassed."
The Supreme Court responded with a unanimous ruling: sexual harassment, "hostile environment" as well as quid pro quo, was sex discrimination.
N 1986, THE YEAR the Supreme Court ratified MacKinnon's first major contribution to American law, she had no paying job. Her only income came from occasional speaker's fees. She was at the midpoint of her decade on the road.
Still, her academic wandering had its rewards. First, in the words of Paul Brest, dean of Stanford Law School, "nobody who has ever had her as a teacher is not affected in a significant way." Law students would imitate her dramatic voice or dress or even her hair, and line up outside her office, as one put it, to "have some of that ferocity channeled at them."
Second, a typical MacKinnon lecture left no ox ungored:
At Stanford, she contended that "'rape is not illegal, it is regulated"
At a National Conference on Women and the Law in New York, she told women lawyers that law school had taught them to "forget your experience" and "become a maze-bright rat."
At Harvard, critiquing legal notions of consent, she asked why, "when a woman spreads her legs for a camera, she is assumed to be exercising free will?"
However influential these years were, the wandering took its toll. She recalls the decade as a "10-year job interview": allegedly social meals that weren't, suggestions that she was too practical for the theorists and too theoretical for the practitioners, a sense that she had "flunked lunch."
Professionally, she also became a target. When MacKinnon was recommended for a visiting appointment at Yale, one professor responded with a memo attacking her book on sexual harassment by claiming it omitted crucial legal precedent. He was wrong; he later admitted he had not read the whole book. The struggle over her appointment received national attention--a prominent headline in The National Law Journal called it "A Battle for Yale Law School's Soul?"
The professional price took a personal toll. She became a nomad, living from rental to rental, each enlivened by visiting compatriots. Despite her openness to friends, a further effect of MacKinnon's decade-long job interview may be her insistence on privacy in the few parts of her life that no interviewer could call work-related.
She did allow me to come along to dinner with a friend, the former psychoanalyst Jeffrey M. Masson, who credits her with offering him "a lot of wonderful free advice" in his libel suit against the writer Janet Malcolm. But the details of the dinner, as well as the conversation, were off the record. She avoids discussing where she lives and, particularly, with whom. This last refusal carries a rationale beyond mere want of privacy. "There is this urgent need," she observes, "to define women by who they have sex with--without that, people don't seem to know how to read."
The forced wandering ended, finally, when the University of Michigan offered tenure. Looking back, some of her friends bridle with outrage. "It's a disgrace," Prof. Owen M. Fiss of Yale says, "that Kitty MacKinnon did not have a position at a major law school. I think it was a stunning indictment of American academic life."
When Guido Calabresi, dean of Yale Law School, reflects on MacKinnon's wandering, he speaks in partial self-indictment: her work on sexual harassment was so original that law faculties did not understand its significance, he says, and MacKinnon "didn't have the patience to write the kind of busywork that we would have understood." Instead, as Calabresi puts it, "she kept herself alive by writing things that shocked us."
MACKINNON'S FIRST shock to the legal establishment appeared in 1982 and 1983 in Signs, the feminist journal published by the University of Chicago. "Sexuality is to feminism what work is to Marxism: that which is most one's own, yet most taken away," the first Signs article began. Following an extended tour of the struggle of feminism with Marxism, the article cut to the roots of male-formed law: "The law sees and treats women the way men see and treat women."
Such an outrageous assertion might have rolled off the broad shoulders of the law had MacKinnon not immediately moved from theory to crunch--rape law as both male-seeing and male-serving. The argument, which even its admirers say takes time to sink in, runs as follows: Law distinguishes criminal rape from legal sex based in part on the viewpoint of men. To be guilty of rape, that is, a man must possess a "criminal mind" (mens rea) for his act to be criminal
Since this criminal mind depends on what the man understood--or what a "reasonable man" should have understood--the problem, as MacKinnon wrote, becomes this: "Rape is only an injury from women's point of view. It is only a crime from the male point of view, explicitly including that of the accused. Thus is the crime of rape defined and adjudicated from the male standpoint." Put another way: Rape law sees women as the accused rapist sees women.
"From whose standpoint," MacKinnon asked, "and in whose interest, is a law that allows one person's conditioned unconsciousness to contraindicate another's experienced violation?"
MacKinnon's critique became a landmark in university courses in feminist legal theory, but it might have remained unnoticed outside the academy had she not turned at the same time to attack another way that men "see and treat women"--pornography. This move put her in direct opposition to much of mainstream feminism and liberalism.
"I want to do something for this woman before I die," MacKinnon said a decade ago, handing a book to a friend. The book was "Ordeal," its author Linda Lovelace, its story a harrowing depiction of imprisonment and torture that Lovelace says she suffered while being coerced to make pornographic films, including "Deep Throat."
MacKinnon first met Lovelace at the suggestion of Andrea Dworkin, a longtime friend who since the early 1970's has contended that pornography shapes men's behavior toward women. MacKinnon sought a legal means to help Lovelace. Their main goal was to end showings of "Deep Throat," in which, as Lovelace put it in sworn testimony, "virtually every time someone watches that film, they are watching me being raped." Ultimately, no lawsuit was brought: the statute of limitations had expired for any existing legal claim.
Not long after, MacKinnon and Dworkin designed the first law school course to focus on pornography, at the University of Minnesota Law School, where MacKinnon was teaching. Soon, Minneapolis residents asked MacKinnon and Dworkin to intervene in their own fight against pornography. The city had attempted to control pornography by zoning it into particular neighborhoods, mostly poor and minority ones. On behalf of those residents, MacKinnon and Dworkin came up with the idea of a local ordinance creating a new legal claim--allowing a woman who could prove she had been harmed by a pornographic work to sue its makers and distributors. In response, the Minneapolis City Council called for hearings to find out if pornography was indeed harming women.
For two evenings, a string of citizens came forward to testify. A woman identified as Carol L., an American Indian, described being gang-raped by men who called her "squaw" and invited her to play "Custer's Last Stand"--apparently referring to a pornographic video game. A woman named Ruth M. recalled that her ex-husband had read pornography "like a textbook"; it taught him, for example, how to tie her up so she couldn't escape. A woman identified as Rita M. testified that, during a Girl Scout camping trip at age 13, she was raped by hunters who had been sitting in the woods reading pornographic magazines, looked up, saw her, called out "there's a live one," chased her down and gang-raped her at gunpoint. Like most women who are sexually abused, says MacKinnon, they did not report their experiences because they did not expect help.
The ordinance omitted moral terms like "obscene" and "prurient interest." It defined pornography as "graphic sexually explicit subordination" of women, through pictures or words, in which also, for example, "women are presented as sexual objects who experience sexual pleasure in being raped" or are shown being "penetrated by objects or animals."
To bring a successful suit under the statute, a woman would have to prove that such pornography had harmed her in a specific way or--under a controversial provision against "trafficking"--had harmed women in general.
But the ordinance fell on hard times. The City Council adopted a version of it; the Mayor vetoed it. Indianapolis adopted it; courts invalidated it. Other cities considered it; none has put it into full effect.
The ordinance gathered potent opposition, including the American Booksellers Association and the American Civil Liberties Union. The most effective attack came from a group calling itself the Feminist Anti-Censorship Task Force (FACT). In a legal brief, FACT contended that the ordinance "reinforces rather than undercuts central sexist stereotypes in our society" and would "censor speech and imagery that properly belong in the public realm." It attacked as vague the ordinance's definition of pornography, including the phrase "sexually explicit subordination." Some interpreters, it contended, might see depiction of "the most traditional heterosexual act as subordinating," because the man would be "in a physical position of superiority and the woman in a position of inferiority." It carried the names of more than 50 prominent feminists, including Betty Friedan, Kate Millett and Adrienne Rich.
MacKinnon exploded. She accused them of misrepresenting the ordinance and "fronting for male supremacists." "The black movement has Uncle Toms and Oreo cookies," she would eventually say. "The women's movement has FACT."
The fate of MacKinnon's anti-pornography ordinance was settled--at least temporarily--in 1985 by a three-judge panel of the United States Court of Appeals for the Seventh Circuit. Writing for that court, Judge Frank Easterbrook found in favor of the right to propagate "opinions that the government finds wrong or even hateful." The ordinance would violate that right, the court ruled, and thus was not Constitutional.
Still, MacKinnon found some encouragement In Easterbrook's decision, which seemed to accept the central premise of the ordinance: "Depictions of subordination tend to perpetuate subordination." he wrote. "The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets. In the language of the legislature, 'pornography is central in creating and maintaining sex as a basis of discrimination.' "
FOLLOWING THAT DECISION, which the Supreme Court affirmed without comment, some of MacKinnon's admirers expected she might end her forays against pornography. In fact, almost the reverse has happened, and a few leading constitutional theorists now predict that, within a decade, she will have carved a new exception in constitutional protection of speech. Meanwhile, MacKinnon is often literally on the road again, trying to prove the deepest of pornography's harms.
In lectures, she often refers to pornography as a continuum on which the end point is "snuff." For years, rumors about "snuff films," in which women or children are killed as part of the sexual experience, have been dismissed as fiction. MacKinnon, however, increasingly believes they exist. People have begun coming to her with stories about their experiences, she says, often as children, of being coerced to appear in films in which victims were killed.
She declines to give details.
She is still gathering information, she says, and is committed to protecting the people who talk with her. But she did agree to read me an example of the stories she has been hearing, with permission of its author and with insistence on the author's anonymity. She had apparently not yet read it herself.
From the minute she began reading, she seemed to regret yielding to my request. The excerpt described what might be called a live performance of snuff: a woman playing the role of mother is sexually assaulted on stage, by an actor and then by audience members, and her little girl is apparently killed. As MacKinnon read, her face became ashen. A vein near her left eye throbbed deep and blue--palpably draining blood from her face.
The pursuit of snuff gambles her credibility, MacKinnon believes, and possibly her physical welfare. Still, she seems intent on the gamble: "Snuff films cast a light on the rest of pornography that shows it for what it is: that it's about the annihilation of women, the destruction of women, the murder and killing of women--in which murder and killing are just the end point that all the rest of pornography is a movement toward."
AT THE END OF last year, in a moment verging on recreation, Catharine MacKinnon walked across the Michigan campus to hear one of the term's intellectual events, the Tanner Lecture. It was to be given by the pragmatist philosopher Richard Rorty, one of her heroes. She had never met him and didn't know what he would discuss.
For his focus, Rorty had chosen what he called an exemplar of "prophetic feminism," whose work he had recently encountered and found "unforgettable." He knew little about her, he said. It never occurred to him, when he began to address his audience at the University of Michigan, that she would be sitting in the rows before him, agog.
Still agog a week later when we met in Washington for our next-to-last interview, MacKinnon described his analysis of her work as "the kind of reading that usually you have to be dead to get." She felt honored beyond reality. As we walked the streets of the capital that morning, MacKinnon was in an associative mood. Passing the White House, she discoursed on male power. At the Washington Monument, she critiqued the purported objectivity--from on high--of male-formed law. As we reached the National Museum of American History, her mind shifted to Rorty's talk.
One of his listeners had asked, Why feminism, and why MacKinnon? He responded, more or less: "Philosophers typically look for symbols of social hope. Hegel found such hope in Napoleon, and Dewey found it in Whitman, and people like me nowadays look toward feminists like MacKinnon."
Her voice rose on all the names but her own - where it fell dramatically. "I mean, what!" she said. She stopped in her tracks, yielding to bewildered laughter. "Whitman?" she continued. "Napoleon? I mean, people are trying to train me to stick my hand in my shirt."
And she did: jutting out her jaw, laughing in her perplexity, plunging a hand into her double-breasted leather coat, standing before the national repository of Americana.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
This article for the New York Times Magazine began my reporting for Equal: Women Reshape American Law.
I tell part of the story of its origin in the acknowledgments section of the book
(excerpted in the acknowledgments section of these web pages). -- Fred Strebeigh
[Click here to return to top of page.]
This article for the New York Times Magazine began my reporting for Equal: Women Reshape American Law.
I tell part of the story of its origin in the acknowledgments section of the book
(excerpted in the acknowledgments section of these web pages). -- Fred Strebeigh
[Click here to return to top of page.]