Crimes of the Head

Feminist legal theory is creating a government not of laws but of women.

Clarence Thomas was nearly denied a seat on the U.S. Supreme Court because a woman who worked for him a decade ago said he had asked her out and discussed dirty movies with her. That's not the way the papers put it, of course. In the press, Thomas stood accused of "sexual harassment." By substituting that vague term for the specifics of Thomas's alleged behavior, reporters acknowledged a reality that became painfully clear during the grueling days of the Senate hearings on Anita Hill's charges: What was once merely obnoxious is now illegal.

Catharine MacKinnon had a lot to do with that transformation. As a feminist legal scholar, she formulated a theory of sexual harassment that was adopted by the Supreme Court in 1986: Sexual harassment need not involve physical contact, the threat of retaliation, or even an intent to harass. It can consist merely of a "hostile" work environment, created by off-color jokes, nude pinups, inappropriate social interest, or anything else that might offend a woman's sensibilities. In this light, whether you think Anita Hill told the truth or not, Thomas's crime was all in her mind.

During the hearings, MacKinnon, now a University of Michigan law professor, took to the op-ed pages and the TV talk shows—including Today, Donahue, Nightline, and Sonya Live—to defend that standard and the ideas underlying it. For the most part, she sounded quite moderate and reasonable, interested only in fairness and in vindicating the rights of working women. On Nightline, for example, she conceded that simple miscommunication underlies many cases of sexual harassment. MacKinnon's mainstream status was reflected by a flattering October 6 cover story in The New York Times Magazine. Later that month, Peter Jennings dubbed her "Person of the Week."

But there is another side to Catharine MacKinnon. Her writings and those of her allies confirm that the campaign against sexual harassment represents a radical departure from traditional notions of justice. Indeed, it is part of a broader attempt by feminist theorists to uproot fundamental legal principles that they view as perpetuating male domination of society. Those principles include such ostensibly gender-neutral concepts as consent, reasonableness, individual rights, and the presumption of innocence. The declared goal of the feminist jurisprudes is to transform the law from an instrument of subjugation into a system based on a woman's perspective.

So far they appear to be succeeding. "Feminist legal theory the most dynamic area of law today," writes Anastasia Toufexis in Time. "Feminist scholars have pioneered the concept of sexual harassment in the work place, catalyzed passage of rape shield laws and expanded the principle of self-defense to cover battered women accused of killing abusive mates."

Says Professor Cynthia F. Epstein of Stanford Law School, "Attorneys whose practice might be described as embracing or incorporating feminist jurisprudence have undoubtedly had a meaningful effect on modern law and public policy. Along with feminist practitioners, the legal theorists have addressed and affected the spheres of family law, employment law, criminal law, and first amendment law." Professor Laurence Tribe of Harvard Law School is also enthusiastic: "Over the next quarter century feminist legal theory is likely to be the most fertile source of important insights in the law."

What sort of insights does feminist jurisprudence offer? "The primary task of feminist scholars is to awaken women and men to the invidious ways in which patriarchy distorts all our lives," writes Leslie Bender, a professor at Syracuse University College of Law. Writing in The Harvard Women's Law Journal, Janet Rifkin defines patriarchy (others prefer the terms androcentrism or phallocentrism) as "any kind of group organization in which males hold dominant power and determine what part females shall and shall not play, and in which capacities assigned to women are relegated generally to the mystical and aesthetic, and excluded from the practical and political realms, these realms being regarded as separate and mutually exclusive."

Although Rifkin's definition draws on the narrow, anthropological meaning of the term, feminist scholars also use patriarchy more generally to describe any society based on the male perspective. To overcome patriarchy, it is not enough to welcome women into the practical and political realms. Rather, those realms must be remade based on the female perspective, as feminist theorists define it.

The feminist jurisprudes seek to expose patriarchy as abstract, distanced, and repressive. They want to replace it with a new paradigm reflecting the experience of women, one based on context, relationship, and particulars. Female thinking, MacKinnon says, represents the "essential connectedness" of women, in contrast to the separateness of men. From the female perspective, all things are connected; diametric opposition—between mind and body, nature and culture, self and other, good and evil, personal and political—does not exist.

Yet feminist legal theory is built on the idea of a sharp male/female dichotomy. Hence some feminist jurisprudes distinguish between artificial dichotomies—those that men perceive—and natural dichotomies—those that women perceive. Other theorists, including MacKinnon, reject that approach. No one has been able to resolve the apparent contradiction between the idea that opposites are illusory and the idea that male thinking and female thinking are fundamentally opposed, at least not in terms that make sense by the standards of logic—but perhaps that's the point. Logic, after all, is a male concept.

In the feminist vision, "care," a connection notion, replaces "rights," a separateness notion. "Male and female perceptions of value are not shared, and are perhaps not even perceptible to each other," writes Ann Scales of the University of New Mexico School of Law in the Yale Law Journal. (That is why, as we were reminded ad nauseum during the Thomas hearings, men "just don't get it.") "In our current genderized realm, therefore, the 'rights-based' and 'care-based' ethics cannot be blended. Those values cannot be content with multiplicity; they create the other and then devour it. Objectivity ignores context; reason is the opposite of emotion; rights preclude care."

In the context of sexual harassment, "care" requires that the law cast its net wide. Caring for women means protecting them not only from overt harassment but from feeling uncomfortable. In formulating her theory of sexual harassment in the mid-'70s, MacKinnon eschewed the traditional legal remedies of tort and contract. Although victims of sexual harassment could sue for assault and battery, intentional infliction of emotional distress, invasion of privacy, or intentional interference with a contract, MacKinnon deemed those approaches unsatisfactory. For one thing, under those remedies, a victim of sexual harassment could sue her employer only if she could show that he had authorized the harassment.

More important, the standards that courts would use to determine whether any of those right violations had occurred would be based on the male perspective; male standards of behavior and male sensibilities would govern. MacKinnon believed that the ideas of tort and contract were "conceptually inadequate" because of "the social reality of men's sexual treatment of women." Since the main condition for sexual harassment is the social, economic, and political inequality of women, she argued, such actions are really a form of sex discrimination. In 1978, the U.S. Court of Appeals for the District of Columbia Circuit became the first appellate court to accept that argument.

In the 1986 case Meritor Savings Bank v. Vinson, which MacKinnon helped argue, the Supreme Court adopted another aspect of her theory. The court ruled that actions "sufficiently severe or pervasive" to create "a hostile or abusive work environment" violate the law even if unwelcome sexual demands are not linked to concrete employment benefits. The Court also agreed with MacKinnon that "'voluntariness' in the sense of consent" is not a defense to a sexual-harassment complaint. MacKinnon summed up the importance of Vinson: "What the decision means is that we made this law up from the beginning, and now we've won."

As shaped by MacKinnon, sexual-harassment law incorporates a key assumption of feminist jurisprudence: Women are at a fundamental disadvantage in a male-dominated society. In MacKinnon's words, "sexual harassment is the unwanted imposition of sexual requirements in the context of a relationship of unequal power." More generally, a practice is discriminatory if it "participates in the systemic social deprivation of one sex because of sex."

Since the inequality of power between men and women is systemic, a woman's consent is never completely free. Hence consent is not an acceptable defense against a charge of sexual harassment. The comments of Anita Hill's defenders reflected that understanding. In trying to explain why she did not file a complaint at the time of the alleged harassment, why she followed Clarence Thomas to the Equal Employment Opportunity Commission, and why she continued a friendly relationship with him for eight years, they cited a basic imbalance of power.

During the hearings, Sen. Arlen Specter (R–Pa.) asked Judge Susan Hoerchner, who testified that Hill told her about Thomas's harassment in the early '80s, whether Hoerchner had considered advising Hill to come forward. "No, Senator, I did not," she responded. "I believe that the tremendous inequity in power between them would have been dispositive."

Various commentators echoed the same theme. "The Judiciary Committee's dismissal of Anita Hill's story is about men not understanding what it is like not to have power," wrote Marie C. Wilson, executive director of the Ms. Foundation for Women, in The New York Times. "I'd like each man to think, think back to each and every sexual encounter and tell himself he wasn't playing power politics, he wasn't under the influence of a culture that says anything goes for men and women are the objects of the game."

Similarly, MacKinnon argues that the reality of women's Powerlessness within the patriarchy means that almost all of what passes for consensual heterosexual sex is actually rape. "Men see rape as intercourse; feminism observes that men make much intercourse rape," she writes. "Combine this with the similarity between the patterns, rhythms, roles and emotions, not to mention acts, which make up rape on the one hand and intercourse on the other. All this makes it difficult to sustain the customary distinctions between violence and sex.…If 'no' can be taken as 'yes,' how free can 'yes' be?…If sex is normally something men do to women, the issue is less whether there was force and more whether consent is a meaningful concept."

That view of women's subjugation within the patriarchy is crucial to the idea that a "hostile environment" is a form of sexual harassment. While the feminist jurisprudes might concede that a man could suffer sexual harassment in the narrower sense—for example, if his boss said, "Sleep with me, or you're fired"—they would insist that only a woman can be the victim of sexual harassment in the form of a hostile environment.

In the 1990 case Drinkwater v. Union Carbide Corp., the U.S. Court of Appeals for the Third Circuit explained why: "In the quid pro quo cases, sexual harassment claims are equally available to men and women, but non-quid pro quo hostile environment cases depend on the underlying theory that '[w]omen's sexuality largely defines women as women in this society, so violations of it are abuses of women as women.'…The theory posits that there is a sexual power asymmetry between men and women and that, because men's sexuality does not define men as men in this society, a man's hostile environment claim, although theoretically possible, will be much harder to plead and prove."

Sexual-harassment law thus discards the idea of equal protection: Given the same alleged behavior, a woman will find it much easier to prove a claim than a man. The "hostile environment" approach also does away with the notion of intent. It does not matter what the defendant intended to do, or even what he actually did. The crucial test is the "environment" his actions created—in other words, the subjective reaction of the complainant.

But as former Newsweek editor William Broyles Jr. noted in a New York Times op-ed piece, "What is offensive to one woman may be obnoxious, amusing, or even endearing to another.…Each woman makes her own law." Such a standard sacrifices a basic principle of fairness: that proscribed behavior must be defined clearly enough so that people know when they're breaking the law. It establishes government not of laws but of women.

Given the generous parameters of sexual-harassment law, many women could make a plausible claim. Indeed, by MacKinnon's estimate, "around eighty-five percent of all women are, or have been, sexually harassed in the work force at some point." (In an October CBS News/New York Times poll, 40 percent of the female respondents reported having suffered sexual harassment.) The feminist jurisprudes reject any attempt to constrain the definition of harassment with traditional standards of reasonableness, which they say have a masculine bias.

Accordingly, in 1991 the U.S. Court of Appeals for the Ninth Circuit threw out the "reasonable person" standard for determining a victim's harm in favor of a "reasonable woman" test. Judge Robert R. Beezer wrote: "We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share.…Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive."

The reasonable woman should not be confused, however, with actual women. Last March a federal district court in Jacksonville, Florida, applying the reasonable-woman standard, found a working environment at a shipyard abusive because of nude pinups on the walls and frequent sexual remarks and jokes. Although the plaintiff complained of sexual harassment, other female employees did not. The hostile-environment approach means that harassment is defined by the reaction of the most sensitive woman, even if she is the only one who takes offense.

As both the Jacksonville and the Thomas cases suggest, the feminist jurisprudes see pornography as closely related to sexual harassment. Together with fellow feminist jurisprude Andrea Dworkin, MacKinnon hopes to take advantage of what she considers the law's growing willingness to see "a convergence of pornography and sexual harassment." They hope that the concept of sexual harassment will help achieve the longstanding feminist goal of banning pornography.

In 1983, the city of Minneapolis hired MacKinnon and Dworkin to draft a pornography code, unsupervised by the city attorney. The law they came up with banned any "pornography" that degrades women. It described a variety of degrading material, including cases in which "women's body parts…are exhibited such that women are reduced to their parts." As examples of degrading pornography, MacKinnon, Dworkin, and their supporters cited Rolling Stones album advertisements, French and Italian art films, and works by lesbian writers and avant-garde artists.

Not surprisingly, given those examples, MacKinnon has little patience for concerns about protecting "nondegrading" sexual expression. "The anxiety of the pornography/erotica question is: What can we still have? The anxiety in that question is: If everything that abuses women and gets men hard is pornography, then what's left that can be sexually arousing? And the anxiety in that question is: If you don't abuse women, maybe you don't get hard.…Men getting hard is not my problem. Women getting abused is my problem."

In Dworkin's view, any material involving sexual intercourse would by definition be degrading to women. "Intercourse remains a means or the means of psychologically making a woman inferior, communicating to her cell by cell her own inferior status," she writes in her book Intercourse. "Physically the woman in intercourse is a space inhabited, a literal territory occupied literally: occupied even if there has been no resistance; even if the occupied person said, 'Yes please, yes hurry, yes more.'" Intercourse, she declares, "is the pure, sterile, formal expression of men's contempt for women." The fact that a woman might enjoy sex makes the act even more degrading. Dworkin contends that material depicting women as enjoying sex is worse than the Nazis' treatment of the Jews: "The Jews didn't do it to themselves and they didn't orgasm.…No one, not even Goebbels, said that the Jews liked it."

MacKinnon and Dworkin's law created a new tort for women harmed by pornography. In effect, the law allowed women to sue anyone in the porn business, broadly defined, for money damages or an injunction. The law ruled out the defense "that the defendants did not know or intend that the materials were pornography or sex discrimination." The ordinance was approved in Minneapolis and Indianapolis and narrowly defeated in Cambridge, Massachusetts. But it was eventually ruled unconstitutional by the U.S. Court of Appeals for the Seventh Circuit, a decision that was upheld by the Supreme Court.

Now MacKinnon and Dworkin are working on a new law that explicitly defines pornography as a form of sexual harassment. They hope that this version, since it employs a rationale for restricting speech that the Supreme Court has already accepted, will satisfy First Amendment concerns. They plan to offer the model ordinance to the city of Minneapolis and to any other interested municipalities.

In the campaign against pornography, as in the areas of sexual harassment, campus speech codes, rape law, and the battered-woman defense, the feminist jurisprudes are working within the system, modifying it to mitigate the evils of the patriarchy. But as their rhetoric suggests, their ultimate goal is far more ambitious. They do not want to tinker with the legal system; they want to overturn it.

"Law is a potent force in perpetuating patriarchy and controlling social and political organization," writes Syracuse University law professor Leslie Bender. "Our legal system rests on an ethnocentric, androcentric, racist, Christian, and class-based vision of reality and human nature, all of which makes it inherently flawed. It is a system that resolves problems through male inquiries formulated from distanced, abstract and acontextual vantage points, while feminism emphasizes relationships, context, and factual particulars for resolving human problems."

So women have to start over. But there's a problem. Reality itself, according to these theorists, has a sex bias that must be corrected. "Feminist analysis begins with the principle that objective reality is a myth," the University of New Mexico's Ann Scales writes. "It recognizes that patriarchal myths are projections of the male psyche."

By rejecting not merely particular standards, but the idea of standards, not merely specific arguments, but the very method of argument, the feminist jurisprudes seem to have disarmed themselves in the battle against patriarchy. "All of our norms and standards have been male," writes Bender. "If we extract the male biases from our language, method, and structures, we will have nothing—no words, no concepts, no science, no methods, no law."

If, as Bender claims, all is patriarchy, how can women hope to create an alternative? The answer, according to the feminist jurisprudes, is that women can access an alternative reality, their reality, through "consciousness raising" (a.k.a. "C-R"). C-R is a process, not unlike A.A. meetings or group therapy, in which women tell their stories to each other. In C-R, writes DePaul University law professor Morrison Torrey, "experience becomes a legitimate source of knowledge." By creating this new knowledge, MacKinnon says, C-R "affirms that there both is and can be another reality for women." In light of that reality, women can build a new system: "C-R clears a space in the world within which women can begin to move."

There seems to be no room for men in that space. If there are two realities, one for each sex, how can men and women coexist under the same legal system—or in the same society, for that matter? What is just for men is not just (if that term can even be used) for women. Some radical feminists, including Dworkin, therefore conclude that the only solution is sexual segregation—two societies, two legal systems, two civilizations. MacKinnon does not address this issue directly, saying only that no answer can be found within the patriarchy.

But the implications are profound. For if men and women are so different that they cannot truly communicate with each other, cannot even live together without one sex oppressing the other, the project of feminist jurisprudence is doomed at the outset. Since the feminist jurisprudes cannot persuade men that their way is better, the struggle to end patriarchy is a pure power struggle—one that the feminists, according to their own premises, are destined to lose. The reason for change—that men are more powerful in the current system—is the reason why things will remain the same.

In truth, however, the success that the feminist jurisprudes have so far enjoyed is based on their ability to use the very patriarchal tools they supposedly reject: legal concepts, moral reasoning, general principles, and so on. If they have been able to change the law, it's because they have convinced men like Judge Robert Beezer, Sen. Ted Kennedy, and even Clarence Thomas—who fought for stronger measures against sexual harassment as chairman of the EEOC—that such changes make the law more just. Despite the supposedly unbridgeable gulf between men and women, the reformers have managed to communicate quite effectively.

To be sure, the feminist jurisprudes have weapons other than rational persuasion. By creating new sex crimes and imbuing them with the graveness of rape, they strike terror in the hearts of politicians, managers, academics, and anyone else who might oppose them. But they could not create those crimes without the collaboration of men as legislators, judges, and voters. And that collaboration belies all the talk of male/female, connected/separate, rights-based/care-based dichotomies. Like so many theorists who get involved in politics, the feminist jurisprudes seem to have abandoned their principles.

Michael Weiss is a fellow at the Texas Public Policy Foundation and an articles editor at the Texas Law Review.