Abstract

Catharine A. MacKinnon is a lawyer, teacher, writer, and activist for sex equality. She is Elizabeth A. Long Professor of Law at the University of Michigan, The James Barr Ames long-term visitor at Harvard Law School, and Special Gender Adviser to the Prosecutor of the International Criminal Court.

She has taught at twelve law schools including Yale, Stanford, Chicago, Osgoode Hall, Basel, Columbia, and Hebrew University, and been a fellow at the Institute for Advanced Study (Berlin) and the Center for Advanced Study (Stanford).

Widely published in many languages, Professor MacKinnon’s books include Sex Equality (2001/2007), Toward a Feminist Theory of the State (1989), Only Words (1993), Women’s Lives, Men’s Laws (2005) and Are Women Human? (2006). Empirical studies document her place among the most widely-cited legal scholars in the English language.

She pioneered the legal claim for sexual harassment as sex discrimination and, with Andrea Dworkin, conceived ordinances recognizing pornography as a civil rights violation and the Swedish model for prostitution. The Supreme Court of Canada has largely accepted her approach to equality, hate speech, and pornography. Representing Bosnian women survivors of Serbian genocidal sexual atrocities, she established legal recognition of rape as an act of genocide, winning with co-counsel a $745 million verdict. She first argued that rape is torture and has participated in defining rape internationally. Her theory of gender crime is widely embraced internationally.

Professor MacKinnon works with Equality Now, an international NGO promoting sex equality worldwide, and the Coalition against Trafficking in Women (CATW).

The spoken word has always been the real thing to me, the music as important as the words. The result, I suppose, is that I write for people who read with their ears.

Transcript of Interview with Unknown Named Prisoner

The first voice on a page to move into my mind and set up habitation there came in a transcript of an interview with (a person I figured out much later was) a Black man in a United States federal prison.1 His voice resounding in my head transfixed me to the page. The transcript sat on a drop-leaf table where my father wrote on weekends in front of a bright north-facing window with tartan curtains. It was snowing.

My father dismissed the man and the way he spoke, denigrating my interest in the transcript—sneering would not be too strong a term—as he shoved it hurriedly into his briefcase. Before he walked into the study, I can still see my little hands turning the pages, even a few of which told me he was wrong. Although the man is here deplorably nameless, it is perhaps fitting in this paean to the oral tradition that there can be no citation to someone whose vernacular voice had no name to me at the time, or to a document so fleeting as to make ephemera look durable. From my height standing at the table, I could not have been much older than seven.

Jerome Lawrence and Robert E. Lee, Inherit the Wind

Two plays based on actual political trials most deeply imprinted themselves upon me early, although I did not notice their common genre at the time. Inherit the Wind2 enthralled with its rumpled charismatic Clarence Darrow, contending against the forces of darkness and ignorance in swirling political surround in the Scopes evolution trial. He said he paid as much for his clothes as the next guy, only difference was, he slept in his. Doing whatever it takes without taking yourself too seriously has forever held that caption for me. (My personal record is twelve all-nighters out of fourteen nights writing the complaint for Bosnian women to serve before Radovan Karadžić left the jurisdiction in early 1994.) That play also taught that you could be right and change things and still lose at trial. I was perhaps fifteen.

Arthur Miller, The Crucible

Not long after, The Crucible3 on stage—the Salem witch trials serving, some said, as a foil for critique of McCarthyism—showed that people can feel harmed by things that do not exist. I remember wondering, what if people did not believe they were harmed by something damaging that did exist? My work has provided ample opportunity to find out. At the time, I went on playwright-reading binges at night, one playwright at a time: all of Shaw, Ibsen, Oscar Wilde, Chekov, then, selectively, Shakespeare, Tennessee Williams, Eugene O’Neil, Beckett, and more, casting and staging them my way in my mind, together with committing entire sound tracks of Broadway musicals to memory from records (growing up on a farm in Minnesota did not permit seeing one until the mid-1990s). These words inhabited the spaces between people, connecting and moving them, moving me and connecting me to the world.

Martin Heidegger, Being and Time

Getting around the Western philosophical tradition in graduate school in political science at Yale, I was blown away by Heidegger’s analysis in Being and Time4 of the centrality of time, including death and mortality, matched by its absence in political theory, ancient and modern. Attempting to rectify this in a Ph.D. qualifying paper came within an eyelash of getting me kicked out of graduate school. Something about working through that book, along with reading Marx, where things existed in solid material blocks, next to Hegel, where all the same things were in motion in peoples’ heads, at around the same time made me realize that theory was something you did, not just something you wrote about when other people did it. It was the early-to-mid-1970s.

Robin Morgan, “Goodbye to All That”; Andrea Dworkin, WomanHating

The first expressly feminist anything I ever saw was Robin Morgan’s liberated issue of the magazine Rat in 1970, with her immortal “Goodbye to All That,”5 telling the leftist boys that their women comrades were finished being their lackeys and shills and sex objects. Its content, but more than that, the way it was written—directly, as if she was talking to them, taking no prisoners—resonated deep inside me. But the first book that affected how I related to the world was Andrea Dworkin’s WomanHating.6 I had been arguing with faculty and graduate students in political science that The Story of O,7 pornography I had read, was animated by a politics, specifically a concept of freedom centered on how much of yourself you can give away, for which I was being alternately laughed off and regarded as crazy. Then there it was: “O is a book of astounding political significance.”8 And there it still is, underlined in my copy with a strong spidery asterisk in the margin next to it. I found my mind then and have not lost it since.

Herbert Wechsler, “Toward Neutral Principles of Constitutional Law”

The single most significant legal text in my life, bar none, has been Herbert Wechsler’s “Toward Neutral Principles of Constitutional Law,”9 which I read in 1972. Even more than Aristotle on equality, Wechsler exemplified what is most wrong with the way white men think about equality and inequality. That his article was an attack on Brown v. Board of Education,10 a decision he considered nonneutral and unprincipled; that his approach, so predicated, went on to become foundational to the teaching of constitutional law as such, so that everyone still learns from the casebook it structured; that as a result, all “doctrine” worthy of the name is conventionally imagined empty and abstract hence fair—all this defined the other side with real lucidity.

Recognizing that the substantive context, here racial hierarchy, was missing on the surface but driving everything underneath led to the understanding that equality law assumes that what is, is equal, inequality being an occasional deviation. Inside this view, indifference between real equality or real inequality defines what “principled” means. This realization impelled a redo of equality (and ultimately law in the Western tradition) from the ground up, producing the approach to equality adopted by the Supreme Court of Canada and increasingly others, including South Africa and increasingly on the international level. It goaded me into teaching the way I do and writing a casebook, Sex Equality,11 exploring my theory and embodying my substantive method. Negative examples can be the most influential.

Diana E. H. Russell's Empirical Research

Women speaking are the most influential texts in my world, then and now. Based on in depth interviews with a probability sample of women about their experiences of sexual abuse, the articles and books12 that emerged from Diana E. H. Russell’s groundbreaking 1977 empirical research reliably documented for the first time the actual prevalence and incidence of sexual abuse, including child sexual abuse and rape. It changed the way I saw the world and approached what I did and do. The fact that 44 percent of women reported being raped or victimized by attempted rape at least once in their lives13 rearranged my tectonic plates. Knowing from life how much sexual abuse there is was one thing; having reported empirical confirmation of the floor on the extent of its reality, epidemic and arguably endemic, was another. Russell’s research also made possible the convergence of sexual abuses in my head that began to be termed violence against women, a list that, seen as cumulative, looked systematic and arguably systemic. The theory of sexual abuse as sex inequality became the foundation for, among other developments, the recognition of gender crime, now accepted in international law.

Linda Lovelace and Mike McGrady, Ordeal: An Autobiography

In 1980, Linda “Lovelace”’s Ordeal14 appeared, which she spoke in conversation with coauthor Mike McGrady, describing the coercion involved in her use to make the pornographic film Deep Throat (1972). Before that time, I had no view of pornography one way or the other. Having read Ordeal, Andrea Dworkin asked me, “we got the Klan, why can’t we get the pornographers?” Linda’s documentation of terrorism and torture because she was a woman sustained this parallel. Reading the book, talking with Andrea about it, and meeting and talking with Linda produced the idea for a civil rights law against pornography,15 making specific acts of abuse through pornography civilly actionable as sex discrimination, within what became a broader harm theory of expression.16

The voices of the women of Kadic v. Karadzic

Genocidally raped women in Bosnia-Herzegovina took my work international beginning in 1991, followed by prostituted women in India and elsewhere, leading to my present position as Special Gender Adviser to the Prosecutor at the International Criminal Court assisting in implementing the concept of gender crime in prosecutions of mass perpetrators in violation of international law. To these women’s depth of understanding, sophistication of analysis, and sheer eloquence, no writing yet comes close.17

Ross E. Cheit, The Witch-Hunt Narrative: Politics, Psychology and the Sexual Abuse of Children

The book that has riveted me most in recent years18 should change how allegations of sexual abuse of children are understood. When the McMartin daycare child sexual abuse trial collapsed and failed, furies screaming “hoax” complete with apparent footnotes to documentary sources convinced the public that such allegations were planted by overzealous therapists. As a result, most legal efforts to address mass sexual abuse of children were strangled at birth or soon thereafter. Until Cheit’s book,19 no one had looked carefully at McMartin and the string of trials that followed, assessing the medical evidence, reading the depositions and trial transcripts and attendant publicity, tracking down the people, meticulously assembling the interacting chronologies and weighing all the details. Although many of us figured the children were mostly telling the truth, even I had no idea of the extent of verified or highly credible allegations in this line of cases. Professor Cheit compares actual narratives by children in transcripts, laboriously and scrupulously tracked down over years of painstaking research, with the versions of the same texts published by a cabal of debunkers determined that the children were lying and the defendants victims of hysteria.

His documents and analysis show beyond cavil the distortions and willed omissions (what else could they be?) of the witch-hunt narrators. His exhaustive, calm, close assessment of each case shows that the real hysteria is in the denial of the reality of child abuse—made all the more believable by Freudian disbelief of reports of childhood sexual abuse. Seldom has a critique been so effectively impaled on its own petard: confirmation bias revealed as disconfirmation bias; determination to convict regardless of evidence unmasked as determination to acquit regardless of evidence; critique of child witness suggestibility become so malleable, so suggestible, that all evidence from a child who tells anyone they were sexually abused can be disregarded because a child is telling someone they were sexually abused. Those who disbelieve what the children say happened to them stand revealed as hunters of children who would expose real abuse. And these witches are real.

1
(D. Minn., c. 1953).
2
JEROME LAWRENCE & ROBERT E. LEE, INHERIT THE WIND (1955).
3
ARTHUR MILLER, THE CRUCIBLE (1953).
4
MARTIN HEIDEGGER, BEING AND TIME (John Macquarrie & Edward Robinson trans., Harper and Row 1962) (1927).
5
Robin Morgan, Goodbye to All That, reprinted in DEAR SISTERS: DISPATCHES FROM THE WOMENS LIBERATION MOVEMENT 53 (Rosalyn Baxandall & Linda Gordon eds., 2000).
6
ANDREA DWORKIN, WOMANHATING (1974).
7
PAULINEAGE, THE STORY OF O. (Sabine d’Estree trans., 1965).
8
DWORKIN, supra note 8, at 56.
9
Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
10
Brown v. Board of Education, 347 U.S. 483 (1954).
11
CATHARINE A. MACKINNON, SEX EQUALITY (2nd ed. 2007).
12
Diana E. H. Russell, Rape, Child Abuse, Sexual Harassment in the Workplace: An Analysis of the Prevalence, Causes, and Recommended Solutions. The Final Report for the California Commission on Crime Control and Violence Prevention” (March 1982) (unpublished manuscript); DIANA E. H. RUSSELL, SEXUAL EXPLOITATION: RAPE, CHILD SEXUAL ABUSE, AND WORKPLACE HARASSMENT (1984); DIANA E. H. RUSSELL, RAPE IN MARRIAGE (rev. ed. 1990); DIANA E. H. RUSSELL, tHE SECRET TRAUMA: INCEST IN THE LIVES OF GIRLS AND WOMEN (rev. ed. 1999).
13
DIANA E. H. RUSSELL & REBECCA M. BOLEN, THE EPIDEMIC OF RAPE AND CHILD SEXUAL ABUSE IN THE UNITED STATES 38-39 (2000). Professor Russell’s groundbreaking articles in the 1980s and 1990s originally reported this figure.
14
LINDA LOVELACE & MIKE MCGRADY, ORDEAL: AN AUTOBIOGRAPHY (1980).
15
For documentation of the hearings and texts of the various ordinances, see IN HARMS WAY: THE PORNOGRAPHY CIVIL RIGHTS HEARINGS (Catharine A. MacKinnon & Andrea Dworkin eds., 1997).
16
See, e.g., CATHARINE A. MACKINNON, ONLY WORDS (1993).
17
Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
18
A close second in the riveting department are WILLIAM T. VOLLMANNS novel, EUROPE CENTRAL (2005), on the relations between Russia and Germany during World War II, with the most amazing footnotes, allowing the reader to distinguish page by page between research-based writing and the author’s imagination; and STEIG LARSSONS trilogy, THE GIRL WITH THE DRAGON TATTOO (Reg Keeland trans., 2008), THE GIRL WHO KICKED THE HORNETS NEST (Reg Keeland trans., 2009), and THE GIRL WHO PLAYED WITH FIRE (Reg Keeland trans., 2009), which inhabits the world as I know it, although neither book changed how I see things.
19
ROSS E. CHEIT, THE WITCH-HUNT NARRATIVE: POLITICS, PSYCHOLOGY AND THE SEXUAL ABUSE OF CHILDREN (forthcoming 2012).