By Mercer, Ilana
The American Conservative , Vol. 5, No. 1
[Women's Lives, Men's Laws, Catharine A. MacKinnon, Harvard University Press, 558 pages] MacKinnon's Textual Harrassment
THE BALEFUL INFLUENCE of feminist Catharine MacKinnon on American 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 jurisprudence since the 1980s. Her legal conquests, especially in developing sexual-harassment law, are the subject of this volume, which comprises speeches and screeds MacKinnon has disgorged over 25 years.
If "the pale, patriarchal, penis people" have not hindered 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," writing that is "fresh, concise and incisive." MacKinnon, however, is an obscurantist, tying the English language into such knots as "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."
Plucked from a legal 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 rights and protections 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 and 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. 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 antidiscrimination 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 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. …