Catherine MacKinnon – WOMAN of ACTION™

 

A Celebration of Women™

is elated to Celebrate the Life of this woman, one that is devoting her life to ground-breaking solutions to one of our world’s deepest subjects: Sexual Harassment and civil rights. Her life has contributed throughout the woman’s movement in areas of prostitution and as global advisor on Gender Issues.

 
 

WOMAN of ACTION™

 

 

Catherine MacKinnon

Will the word “Woman,”

like the word “Jew” finally come to stand for a reality of abuse that cannot be forgotten …

a principal of what cannot be done to a human being?

 
 
 
Catherine MacKinnon is an American lawyer, a globally prominent legal activist for women’s rights and a professor of law. Beginning in the mid 1970s, MacKinnon pioneered the legal claim for sexual harrassment as a form of sex discrimination

Her ground-breaking book in 1979, Sexual Harassment of Working Women,” which argued that sexual harassment is discrimination under Title VII of the United States Civil Rights Act of 1964, later formed the basis of U.S. laws against sexual harassment. She has contributed towards the forming of the Swedish model for addressing the issue of prostitution. She is also the Special Gender Adviser to the Prosecutor of the International Criminal Court at The Hague. The above excerpt is from her book Are Women Human?

MacKinnon was born in Minnesota. Her mother is Elizabeth Valentine Davis; her father, George E. MacKinnon was a lawyer, congressman (1946 to 1949), and judge on the U.S. Court of Appeals for the D.C. Circuit (1969 to 1995). She also has two younger brothers.

MacKinnon became the third generation of her family to attend her mother’s alma mater, Smith College. She graduated at the top 2% of her class at Smith and moved on to receive her J.D. and Ph.D. from Yale University. She was the recipient of a National Science Foundation fellowship while at Yale Law School.

MacKinnon was engaged to Jeffrey Moussaieff Masson for several years during the early 1990s, though the relationship subsequently ended. She has refused to discuss the relationship in later interviews.

MacKinnon is the Elizabeth A. Long Professor of Law at the University of Michigan Law School. In 2007, she served as the Roscoe Pound Visiting Professor of Law at Harvard Law School.

MacKinnon is a highly cited legal scholar. She has frequently been a visiting professor at other universities and regularly appears in public speaking events. On February 10, 2005, MacKinnon attended the premiere of Inside Deep Throat (in which she is interviewed) and took part in a panel discussion after the film in order to criticize it. On April 29, 2009, MacKinnon argued on the radio show Intelligence Squared U.S. for the proposition “it’s wrong to pay for sex.”
 
MacKinnon’s ideas may be divided into three central—though overlapping and ongoing—areas of focus:
(1) sexual harassment,
(2) pornography, and
(3) international work.

She has also devoted attention to social and political theory and methodology.

 
Sexual harassment

According to an article published by Deborah Dinner in the March/April 2006 issue of Legal Affairs, MacKinnon first became interested in issues concerning sexual harassment when she heard that an administrative assistant at Cornell University resigned after being refused a transfer when she complained of her supervisor’s harassing behavior, and then was denied unemployment benefits because she quit for ‘personal’ reasons. It was at a consciousness-raising session about this and other women’s workplace experiences that the term sexual harassment was first coined.

In 1977, MacKinnon graduated from Yale Law School after having written a paper on the topic of sexual harassment for Professor Thomas I. Emerson. Two years later, MacKinnon published “Sexual Harassment of Working Women,” arguing that sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964 and any other sex discrimination prohibition. While working on “Sexual Harassment”, MacKinnon shared draft copies with attorneys litigating early sexual harassment cases, including Nadine Traub, who represented Yale undergraduates in Alexander v. Yale, the first test case of MacKinnon’s legal theory.

In her book, MacKinnon argued that sexual harassment is sex discrimination because the act reinforces the social inequality of women to men (see, for example, pp. 116–18, 174). She distinguishes between two types of sexual harassment (see pp. 32–42):

1) “quid pro quo,” meaning sexual harassment “in which sexual compliance is exchanged, or proposed to be exchanged, for an employment opportunity (p. 32)” and
2) the type of harassment that “arises when sexual harassment is a persistent condition of work (p. 32).” In 1980, the Equal Employment Opportunity Commission followed MacKinnon’s framework in adopting guidelines prohibiting sexual harassment by prohibiting both quid pro quo harassment and hostile work environment harassment (see 29 C.F.R. § 1604.11(a)).

In 1986, the Supreme Court held in Meritor Savings Bank v. Vinson that sexual harassment may violate laws against sex discrimination. In Meritor, the Court also recognized the distinction between quid pro quo sexual harassment and hostile work place harassment. Wrote MacKinnon in a 2002 article: “‘Without question,’ then-Justice Rehnquist wrote for a unanimous Court, ‘when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.’ The D.C. Circuit, and women, had won. A new common law rule was established.”

MacKinnon’s book Sexual Harassment of Working Women: A Case of Sex Discrimination is the eighth most-cited American legal book published since 1978, according to a study published by Fred Shapiro in January 2000.

 
Pornography

MacKinnon, along with feminist activist Andrea Dworkin, has been active in reforming legal postures towards pornography including legal online pornography websites such as young sexer, framing it as a form of sex discrimination and, more recently, a form of human trafficking. She (and Dworkin) define pornography as follows:

“We define pornography as the graphic sexually explicit subordination of women through pictures and words that also includes;

(i) women are presented dehumanized as sexual objects, things, or commodities; or
(ii) women are presented as sexual objects who enjoy humiliation or pain; or
(iii) women are presented as sexual objects experiencing sexual pleasure in rape, incest or other sexual assault; or
(iv) women are presented as sexual objects tied up, cut up or mutilated or bruised or physically hurt; or women are presented in postures or positions of sexual submission, servility, or display; or
(vi) women’s body parts — including but not limited to vaginas, breasts, or buttocks — are exhibited such that women are reduced to those parts; or
(vii) women are presented being penetrated by objects or animals; or
(viii) women are presented in scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual.”

MacKinnon characterizes pornography as a particularly graphic and violent means of subordinating women.


 
In Toward a Feminist Theory of the State, she writes, “Pornography, in the feminist view, is a form of forced sex, a practice of sexual politics, and institution of gender inequality.” MacKinnon chooses a few points to focus on specifically. She depicts the sexual exploitation of women as a means of showing their inferiority by dehumanizing them, and displaying them as sexual objects, things or commodities. She argues that any display of women enjoying humiliation or pain should be a violation of the law.
 
 
 

Phi Beta Kappa Visiting Scholar Catharine A. MacKinnon Lectures on the Future of Gender

She writes, Pornography contributes causally to attitudes and behaviors of violence and discrimination which define the treatment and status of half the population.”

 

 
MacKinnon also highlights how pornography reduces women to their sexual body parts (vaginas, breasts, or buttocks’). This is a central part of her argument of dehumanization, as women are simply seen as sex parts, i.e., objects, things, or commodities for the sexual enjoyment of men.
 
 

 
International work

In February 1992, the Supreme Court of Canada largely accepted MacKinnon’s theories of equality, hate propaganda, and pornography, citing extensively from a brief she co-authored in a ruling against Manitoba pornography distributor Donald Butler.

The Butler Decision was controversial; it is sometimes implied that shipments of Dworkin’s book Pornography were seized by Canadian customs agents under this ruling, as well as books by Marguerite Duras and David Leavitt; the books were indeed seized by customs, but not as a consequence of Butler. Successful Butler prosecutions have been undertaken against the lesbian sadomasochistic magazine Bad Attitude, as well as the owners of a gay and lesbian bookstore for selling it. Canadian authorities have also raided an art gallery and confiscated controversial paintings depicting child abuse. Many free speech and gay rights activists allege the law is selectively enforced, targeting the LGBT community.

MacKinnon played a further role with regard to pornography in Canada, one that engaged other controversies. This unfolded in the early and mid-1990s, during the trials of Karla Homolka and Paul Bernardo, a notorious couple accused of rape and sadistic murder in the province of Ontario. In the course of these controversies, MacKinnon helped persuade court authorities to shield the public from highly inflamatory — but critically relevant — evidence in the case.

Karla Teal Homolka was the bride of Paul Teal Bernardo, a serial rapist who, in the early 1990s, was accused of killing three young women. The killings involved rape-murder and torture; his wife, Karla, was his accomplice and was a co-accused. Catharine MacKinnon offered strategic help in preventing the public from fully comprehending Karla’s role.

In 1993, Karla Homolka had a hearing that only lasted a few hours. One of the major controversies around the hearing was a ban on publication of details. Media had been covering the investigation of other crimes committed by her husband in a different municipality. Now, they were banned from reporting the newsworthy acts being alleged in Karla’s trial. Homolka had painted herself as a battered wife and victim of Bernardo (one instance of battery is verified). The police accredited this theory to get her to talk about Bernardo.

In the photograph of Karla taken after Paul Bernardo beat her in December of 1992, there are long, dark bruises under her eyes; the injury is called a contra-coup, sometimes referred to as “raccoon-eyes”, and it’s caused by a violent blow to the back of the head, hard enough to send the brain slamming forward to the front of the skull.

As a result, Homolka obtained a plea bargain; this prompted the brief court appearance and her conviction on the reduced charge of manslaughter. Ultimately, she was out of prison in twelve years.

What no-one knew in 1993 was that the criminal pair had made videotapes of themselves committing the crimes, (which included the murder of Homolka’s own sister). Only Homolka’s lawyer was aware of them; he had had the right to hide them from the prosecution, and did so. Only after Karla’s trial was over did the videotapes emerge. They revealed a Karla who was an eager participant, up to and including the torture of her own sister.

As Bernardo’s trial loomed, and led by the families of the deceased victims, an effort was made to suppress any diffusion of the tapes, particularly via the broadcast media, but also in print accounts. This increased the ire of the media and of the Bernardo defense team, who knew that the tapes were there, and could shed light on the real events.

Playing a key role in this drama was Catharine MacKinnon. As Stephen Williams reports, Mackinnon was called upon by the prosecutorial team and by the victims’ families to view the tapes for assessment. She advised the prosecutors on how they should use the tapes to convict the husband – without jeopardizing the fate of his wife. Key to MacKinnon’s strategy was the assertion that Karla was not an agent of any crime, but an unwilling victim of an abusive spouse.

That still left the controversy over media coverage of the new forensic evidence. MacKinnon claimed that the release of the tapes was dangerous to the public, in that such materials were by definition pornographic; violent pornography would stimulate other perpetrators to commit other crimes, she asserted. In the end, the judge restricted the video to all but the jury, witnesses, and court officials; he allowed only the soundtracks to be played to the press and courtroom onlookers.

Canadian media were infuriated by this new volley of secrecy; it violated the public’s right to follow the trial through reporters’ eyes. Also, it was a continuation of the campaign to shroud what had become an internationally noticed case. In protest, as early as December, 1993, editorials had campaigned against the ideological cloak over the Homolka case.

Ultimately, Bernardo was sentenced to life imprisonment; Karla got out of jail early; and details about the tapes were not revealed until both were sentenced. In the ensuing furor, over 300,000 Canadians signed a petition to revoke Karla’s plea bargain.
 
 
MacKinnon has also represented Bosnian and Croatian women against Serbs accused of genocide since 1992. She was co-counsel, representing named plaintiff S. Kadic, in the lawsuit Kadic v. Karadzic and won a jury verdict of $745 million in New York City on August 10, 2000. The lawsuit (under the United States’ Alien Tort Statute) also established forced prostitution and forced impregnation as legally actionable acts of genocide. In MacKinnon’s view, traditional approaches to human rights gloss over abuses specific to women (e.g., sexual violence), both in wartime and peacetime.

MacKinnon has also worked to change laws, or their interpretation and application in Mexico, Japan, Israel, and India. In 2001, MacKinnon was named co-director of the Lawyers Alliance for Women (LAW) Project, an initiative of Equality Now, an international non-governmental organization.
 
 

During the “Feminist Sex Wars” in the 1980s, feminists opposing anti-pornography stances, such as Ellen Willis and Carole Vance, began referring to themselves as “pro-sex” or “sex-positive feminists“. Sex positive feminists and anti-pornography feminists have debated over the implicit and explicit meanings of these labels. Sex-positive feminists claimed that anti-pornography ordinances contrived by MacKinnon and Dworkin called for the removal, censorship, or control over sexually explicit material.

The “sex wars” resulted in the feminist movement being split into two opposing camps over questions about pornography, consent, sexual freedom, and the relationship of free speech to equality.


 
 

Anti-pornography ordinances authored by MacKinnon and Dworkin in the United States sought for harm against victims, in relation to pornography, to be made actionable. Soon afterwards, obscenity laws passed in Canada (1985), and books and materials that fell under the new definition of pornography were removed. The Canadian Supreme Court decision R. v. Butler (1992), which upheld these laws, drew heavily on MacKinnon’s arguments that pornography is a form of sex discrimination.

MacKinnon has written in support of this trend in Canadian anti-pornography law, though at the same time, holding that Canada should abandon traditional obscenity law entirely in favor of a civil rights approach. She has also distanced herself from the selective enforcement of Canadian obscenity law against gays and lesbians, holding that anti-pornography laws should make no distinction between gay and heterosexual pornography.




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A Celebration of Women

welcomes this powerhouse and activist for all basic human dignity and that of the women’s movement.

 

Brava Catherine!

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