Catharine MacKinnon's bag of dead leaves (an extended rumination)

Bookslut, which I normally prize for the Suck-esque consistency of its witty snark, today points approvingly to Catharine MacKinnon's interview by the Guardian's Stuart Jeffries.

Now, I went into this interview with no preconceived ideas about MacKinnon, as I had forgotten who she was. To me, for the moment, she was not that infamous writer who characterizes pornography as "sex discrimination" and "violence against women" (ideas usually attributed to Andrea Dworkin, but shared by MacKinnon). For the moment, she was just some random feminist that Jessa Crispin found interesting. Then, in Jeffries's first paragraph I read the following:

Of all the provocative passages in Catharine MacKinnon's new book Are Women Human? the following hit me hardest. She writes: "[T]he fact that the law of rape protects rapists and is written from their point of view to guarantee impunity for most rapes is officially regarded as a violation of the law of sex equality, national or international, by virtually nobody."

The first thing that struck me about this passage was that MacKinnon writes terribly. The sentence completely dissipates its force in a thicket of subordinate clauses. Also, note the bracketed initial in "[T]he", indicating that only a fragment was quoted: in all likelihood, some equally verbose preceding clause obscured the passage even further.

The second thing that struck me was that the claims make no sense. Disentangle the above into more lucid English prose, and you get the following:

Rape law is written from rapists' point of view. As a result, rape law protects rapists to such a great extent that it guarantees impunity for most rapes. Almost nobody officially regards this fact as a violation of the national or international law of sexual equality.

The first claim is false; the second claim is a misleading spin on a kernel of truth; and the third sentence is meaningless if the "fact" in question is not a fact.

In what sense are rape laws written from rapists' point of view? Jeffries describes MacKinnon's answer:

Are you suggesting that rape law enshrines rapists' points of view, I ask MacKinnon? "Yes, in a couple of senses. The most obvious sense is that most rapists are men and most legislators are men and most judges are men and the law of rape was created when women weren't even allowed to vote. So that means not that all the people who wrote it were rapists, but that they are a member of the group who do [rape] and who do for reasons that they share in common even with those who don't, namely masculinity and their identification with masculine norms and in particular being the people who initiate sex and being the people who socially experience themselves as being affirmed by aggressive initiation of sexual interaction." She takes a well-earned breath.

Jeffries seems (or pretends to be) thoroughly impressed at MacKinnon's verbal avalanche. I'm pretty sure this is some kind of dry British sarcasm on Jeffries's part, but I'm an ex-New Yorker, so I'm just going to call the fast-talking b.s. by its proper name. MacKinnon's saying that when she wrote that "rape law is written from rapists' point of view", she meant that rape law is written by men. Since rapists are men, the reasoning goes, it necessarily follows that anything that men do must reflect the point of view of rapists. This is a comically unsound chain of inference [0]. By the same logic, I can demonstrate that since Hitler was a vegetarian, vegetarian cookbooks reflect a secret program to exterminate the Jews.

Okay, maybe that's not entirely fair. The link between "aggressive initiation of sexual interaction" and rape is somewhat more plausible than the link between non-consumption of meat and genocide. But it's still vague guilt-by-association. Merely pointing out that men tend to aggressively initiate sex does not constitute any kind of argument that rape law reflects the views of rapists.

A sound argument supporting this allegation would have to do two things:

1. Identify a view held by rapists, but not by non-rapists [1]. I emphasize the latter clause because it's trivially obvious that rapists and non-rapists share many views. For example, I believe that the sky is blue, and I'd venture to guess that virtually all rapists also believe that the sky is blue. In some sense, therefore, the observation that "the sky is blue" is a view held by rapists; but it is not "a rapist's point of view" in any meaningful way.
2. Identify some aspect of rape law reflecting that view.

Does MacKinnon do either of these things? Well, not really. Jeffries lets her off the hook for a while, but returns to the subject later in the article:

Otherwise, she contends, unenlightened men still write the laws. And when, for instance, they write laws on rape they make what she believes are grotesquely sexist assumptions. "The assumption," she says, "is that women can be unequal to men economically, socially, culturally, politically, and in religion, but the moment they have sexual interactions, they are free and equal. That's the assumption - and I think it ought to be thought about, and in particular what consent then means. It means acquiescence. It means passivity. You can be semi-knocked out. You can be dead in some jurisdictions."

I almost choke on my mineral water. Dead and giving consent? "Sex with a dead body is necrophilia but it isn't regarded as rape." Oh, I see. "You can be semi-comatose, not to mention married in many places, and be regarded as consenting whenever sex takes place."

MacKinnon thinks consent in rape cases should be irrelevant. Women are so unfree that even if a woman is shown to have given consent to sex, that should never be enough to secure an acquittal. Why? "My view is that when there is force or substantially coercive circumstances between the parties, individual consent is beside the point; that if someone is forced into sex, that ought to be enough. The British common law approach has tended to be that you need both force and absence of consent. If we didn't have so much pornography in society and people actually believed women when they said they didn't consent, that would be one thing. But that isn't what we've got."

What does she mean - how does pornography affect this? "Pornography affects people's belief in rape myths. So for example if a woman says 'I didn't consent' and people have been viewing pornography, they believe rape myths and believe the woman did consent no matter what she said. That when she said no, she meant yes. When she said she didn't want to, that meant more beer. When she said she would prefer to go home, that means she's a lesbian who needs to be given a good corrective experience. Pornography promotes these rape myths and desensitises people to violence against women so that you need more violence to become sexually aroused if you're a pornography consumer. This is very well documented."

At this point, I simply must digress a bit, because I find the above paragraphs almost physically painful to read. Reading involves a form of ego-submission: while you read, one of your mind's interior spaces actually recapitulates the text. In some sense, while you read, the writer's voice becomes your voice; the writer's thoughts become your thoughts. In order to read the above passage, I must force myself to emulate the hazy, confused, babbling fugue of free-associative nonsense that passes for thought in MacKinnon's mind. And it is painful. It's the mental analogue of wearing a hairshirt.

The best way to describe MacKinnon is this: her brain is broken. Broken rules of inference are embedded in her tactics of thought. Jeffries writes that MacKinnon's widely regarded as "bright" and that she completed a Ph.D. in political science at Yale. So she's probably smart in the limited sense that, given some seed premises, her brain can rapidly sprout a collection of thoughts related to those premises. The problem is that the thoughts have no connective tissue of logic binding them together. MacKinnon's reasoning resembles a valid argument in much the same way that a trash bag full of dead leaves resembles a tree.

Okay, enough digression. Now I'll talk about her actual statements.

First, let us quickly dispose of the bizarre digression on necrophilia. Our society has customs and laws regarding the treatment of corpses. For example, Chapter 9A.44 (sex offenses), Section 105 of the Revised Code of Washington classifies "sexual violation of human remains" as a class C felony. But corpses are not human beings, and so of course performing sexual acts on a corpse is not "rape". I honestly cannot imagine what MacKinnon hopes to accomplish by conflating corpse desecration with rape. MacKinnon seems to think the distinction illuminates society's misogyny, but that strikes me as a non sequitur so extreme that it borders on paranoid schizophrenia [2].

Next, consider the issue of "force" versus "consent". This is a little sticky, because Jeffries does not give MacKinnon's exact words in full, but judging by his rendering, MacKinnon's analysis is utterly confused. She claims that society makes it impossible for a woman not to consent, since even non-consent will be interpreted as consent. Therefore, laws should be crafted to ignore consent, and to examine instead whether any element of "force" was involved.

But that's nonsense in at least two different ways. First, it is possible for a woman to signal consent, and it is possible for the absence of consent to be discerned. If these things were not possible, then the rate of rape convictions would be zero. For various reasons, rape reporting and conviction rates are low (this is the "kernel of truth" that I alluded to above), but the solution is not to eliminate the notion of consent; it's to educate people more effectively about consent. Which brings me to my second point: it's conceptually incoherent to invoke the notion of "force" while discarding the notion of consent.

The word "force" carries an implication of coercion, or the absence of choice. But unless one is willing to deny that choice exists at all [3], coercion can only be defined in opposition to consent. The negative is meaningless without the affirmative. How, then, can legislators, judges, or juries possibly make a judgment that "force" occurred, without considering whether consent occurred? If we discard consent, there's literally no possible way of distinguishing between "force" and non-"force". (And, incidentally, no distinction between an accusation and the evidentiary burden required for conviction.)

On the other hand, although force requires the absence of consent, the converse is not true: absence of consent does not require force. A sex act involving someone who is incompetent to consent --- for example, someone who is mentally retarded --- need not involve physical force, or even the threat of emotional abuse.

In other words, "absence of consent" actually describes a strict superset of the set of situations involving "force". Furthermore, under modern law, the absence of consent is broadly construed. Not that you'd know this from MacKinnon's interview.

MacKinnon would like us to believe that "You can be semi-knocked out" and still be judged to have consented. Well, I admit that judges and juries in America can be highly imperfect in enforcing the law, and that laws were once pretty bad. However, taking Washington State again as an example, 9A.44.050 of the Revised Code of Washington currently states that if a person's "incapable of consent by reason of being physically helpless or mentally incapacitated", then engaging in sexual intercourse with that person is rape in the second degree, and hence a class A felony. Penalties for class A felonies range up to life imprisonment and a fine of fifty thousand dollars.

MacKinnon would like us to believe that the law doesn't recognize that "force or substantially coercive circumstances between the two parties" implies rape. Well, look again at 9A.44.050 RCW, and you discover that "forcible compulsion" is sufficient to establish rape. 9A.44.010 RCW defines "forcible compulsion" as "physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped." If somebody threatens you or anybody else with physical injury, no matter how slight the injury or indirect the threat, and sexual intercourse results, the law calls it rape. [4]

MacKinnon would like us to believe that the legal definition of consent is infinitely elastic --- that the law would affirm arguments like "when she said no, she meant yes" or "when she said she would prefer to go home, that means she's a lesbian who needs to be given a good corrective experience". Again, that's simply ridiculous. By 9A.44.060 RCW, rape in the third degree, a class C felony, includes any form of sexual intercourse not involving consent. Consent is defined by RCW 9A.44.010 as "actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact". Coerced agreement is not consent; the absence of physical resistance is not consent; only affirmative "words or conduct indicating freely given agreement" constitute consent. Saying no, or that you'd like to go home, handily establishes the absence of consent.

So, what about this "sexual intercourse" business? Does that phrase leave weasel room for a rapist to argue that some act was not rape because he didn't go "all the way"? Once again, RCW 9A.44.010 says:

(a) "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight, and

(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and

(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.

Admittedly, I can think of sexual acts that aren't covered by the above, but I can also appreciate the difficulty in writing a law that covers every conceivable sex act. And other sections of RCW proscribe assaults, sexual or otherwise, which do not satisfy the definition.

Basically, in the State of Washington, the law entitles you to be physically secure against any violation of your body. Modern rape law is relatively comprehensive and well-written, due in no small part to the actions of the feminists who helped craft it. It is slander against both feminism and the legal profession to give an impression as misleading as the one MacKinnon gives.

Are the laws perfect? No. Do they "guarantee impunity for most rapes" and constitute "a violation of the law of sex equality"? Pffft.

Anyway, this post has gone on too long. And MacKinnon has still failed to articulate a single way that rapists' views are reflected in rape law. I don't really have time to get into MacKinnon's deeply confused and factually mistaken discussion of pornography. So, I'll conclude by considering the wince-inducing attempt at emotional manipulation that Jeffries documents at the end of his article:

MacKinnon's book ends with a wonderful rhetorical essay called Women's September 11. It points out that roughly the same number of women are murdered by men in the US each year as were killed in the Twin Towers (between 2,800 and 3,000). But those killings provoked no parallel war on terror.

So what does MacKinnon think should be done? She writes that violence against women "qualifies as a casus belli and a form of terrorism every bit as much as the events of September 11 do". Is she serious that violence against women should be treated as a war? "I think only because it's men doing it against women that it isn't seen as a war." I feel another twinge of vertigo.

I've only read a tiny bit of the scholarship on terrorism, so I'm no expert. But I'm pretty sure no serious definition of terrorism would include random murders, committed in civil society, by a massively dispersed group of individuals (i.e., men), without any unifying organization or motive, against an incredibly broad variety of unrelated targets (i.e., women), without any self-conscious intention to manipulate the media or body politic.

So why make the comparison? MacKinnon has a bad case of Rhetorical 9/11 Parasitism.

Rhetorical 9/11 Parasitism is what I call the rhetorical use of the September 11 attacks, and their explosive emotional impact, to lend weight to some unrelated issue. Or, in other words, If I Don't Get My Medium-Rare Shell Steak With Roasted Vegetables In The Next 10 Minutes, The Terrorists Have Already Won. The grandest extant case of 9/11 Parasitism was, of course, the rhetorical circus held by the Bush administration before the invasion of Iraq. MacKinnon's version is rather paltry by contrast: rather than a literal war, she merely wants to undertake a metaphorical War on Violence Against Women.

Of course, when one invokes the metaphor of war, one invokes not only the expectation of all-out effort, but a whole constellation of associated concepts. To pick just a few:

• Wars justify the suspension of ordinary legal norms and even basic, primal human taboos (like "thou shalt not kill").
• Wars are organized by central planners against external enemies, not by individuals against the members of their own neighborhoods or households.
• Wars end.

In short, the idea of war suggests tactical and strategic expectations that --- need I really say this? --- simply aren't appropriate to solving most problems in civil society. Hence the clichéd observation that most metaphorical wars don't work very well, as metaphors or as wars: the War on Poverty, the War on Drugs, the War on Terror. Like poverty, drug use, and terror, violence against women isn't caused by an organized enemy that can be defeated with force, and thereby induced to sign a treaty of surrender. So why would anyone believe that recasting the problem of violence against women as a war would lead to progress?

More to the point, why does Catharine MacKinnon believe this?

Well, OK, that's a rhetorical question, and you know what I'm going to say. Catharine MacKinnon believes these things because she's an idiot.

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[0] More precisely, it assumes the (bogus) rule that if A and B are subsets of C, then any property of B must necessarily be shared by A.

[1] Well, reality is probabilistic, so, more precisely, one must isolate a view that is relatively correlated with being a rapist and anti-correlated with being a non-rapist.

[2] Seriously, what's the deal here? Is she worried that necrophilia's some kind of "gateway drug" to rape? Is there some hidden national epidemic of necrophilia that I haven't heard about? Worrying about necrophiliacs when you talk about rape is like worrying about lesbian Nazis when you talk about anti-Semitism. Lesbian Nazis probably exist, and they're probably anti-Semites, but they're not exactly the heart of the anti-Semitism problem, and you would have to have some pretty weird issues even to bring it up.

[3] I don't believe in free will, so in some abstract philosophical sense I would agree that choice doesn't exist. However, as a practical matter, the social fiction of free choice undergirds most of the law, including the laws governing contracts, property, and the democratic process itself. By default, the law assumes that the decisions of mentally competent adults have meaning, and that actions affirming these decisions have a binding effect. Hence, when women vote, sign contracts, buy property, choose careers, or grant interviews to newspapers, the law treats their decisions as meaningful ones.

Now, the outward signs of consent can themselves be coerced --- e.g., someone can put a gun to your head and make you sign a contract. So the law carves out specific, narrow exceptions for "false consent": when you're under physical duress, when you're mentally incapacitated, etc., the law ignores evidence of consent. But it is absolutely crucial to the rule of law that these exceptions be narrowly targeted, and based on objectively observable criteria, rather than applying categorically to a vast and vaguely specified set of situations or people.

I suspect that MacKinnon believes that women can only freely consent to sex with men in the absence of sexual power inequalities, and therefore the law should disregard evidence of their consent. This is a catastrophically bad idea. Every society since the dawn of humanity has suffered from power inequalities, and virtually every human relationship involves some element of inequality. Yet society has generally found it useful to treat adults' decisions as meaningful anyway.

Recall what Jeffries writes of MacKinnon:

"The assumption," she says, "is that women can be unequal to men economically, socially, culturally, politically, and in religion, but the moment they have sexual interactions, they are free and equal. That's the assumption . . ."

MacKinnon's utterly mistaken. The law assumes no such thing. No law governing consensual transactions assumes that the two participants in a transaction must be on absolutely equal footing. It would be nice if most people were more pairwise equal than they are, but the rule of law cannot wait for utopia. To be useful, the law must govern, and give force to people's decisions, in the imperfect societies that exist now.

And, in fact, most groups have generally benefited when society treats their decisions as meaningful. People usually fight for the freedom to vote, to enter into contracts, to buy property, and --- yes --- even the right to consent to sex. Being over eighteen, I certainly appreciate the fact that I can have sex without fearing that my partner will be jailed for statutory rape. I suspect that most adult women also enjoy having that right.

[4] What about non-physical forms of coercion? Again, read the rest of 9A.44 RCW and you'll find that people in "supervisory positions" over children, the developmentally disabled, or other people dependent on assistance, cannot have sex with their charges. You'll also find that 49.60 RCW defines unfair practices for employers, which the courts have held to establish civil remedies for sexual harassment --- which, OK, does not classify the behavior as rape, but I have major problems with MacKinnon's propensity for calling everything rape, from corpse desecration to pornography to sexual harassment. Sometimes there's value in preserving distinctions among the meanings of different words.