Catherine A. MacKinnon is Elizabeth A. Long, Professor of Law at the University of Michigan Law School in the United States.
In her book Butterfly Politics, MacKinnon addresses the legal system: ‘that it was not designed by women or so that women could make it work for them’. In referring to ‘Butterfly Politics’ she believes that the miniscule motion of a butterfly’s wings can trigger a tornado half a world away, according to chaos theory. MacKinnon argues that the right, seemingly minor interventions in the legal realm can have a butterfly effect that generates major social and cultural transformations.
MacKinnon is a pioneer of legal theory and practice and an activist for women’s rights. The central concerns of the book: gender inequality, sexual harassment, rape, pornography and prostitution have defined MacKinnon’s intellectual, legal and political pursuits for over forty years. The selections all share the same motivation: to end inequality, including abuse, in women’s lives.
The butterfly effect can animate political activism and advance equality socially and legally. Seemingly insignificant actions, through collective recursion, can intervene in unstable systems to produce systematic change.
A powerful critique of the legal and institutional denial of reality that perpetuates practices of gender inequality, Butterfly Politics provides a model of what principled, effective, socially conscious engagement with law looks like.
Edited Extract from Butterfly Politics, The Belknap Press of Harvard University Press, 2017
Edited Extract from a speech delivered by Catherine A. MacKinnon in Sweden at the Nordiskt Forum June 13, 2014 entitled ‘Rape Redefined’.
Preamble prior to Extract.
MacKinnon discusses rape in terms of gender inequality. There is no denial that some men experience rape, especially in such contexts as the prison system and war.
Rape is recognised in international law as a ‘gender crime’, meaning it happens to women because we are women.
Rape is generally defined in Western Countries as sexual intercourse by force or without consent or both. The conviction rate in the U.S. is between 12% and 25%. This is pretty appalling. Consent definitions in which the prosecution has to prove non-consent require a woman be believed concerning a sexual fact that is by nature subjective. It puts the victim on trial. Essentially it attributes victimisation to the victimised. It makes the case be about what she was thinking, rather than about what he did. It makes rape occur in someone’s mind, not by his body or her body.
The often accompanying standard of mistaken belief in consent means that if the accused is found to have believed she consented, whether she did or not, it is not rape.
Consent is often found in situations where considerable force was used, building into law the misogynistic assumption that women want to be forced into sex.
Consent in law is consistent with economic, psychological, and hierarchical threats, so long as physical injury or life are not threatened, for which purpose rape itself is not generally considered a physical injury.
Consent was given its current dominant meaning in Western liberal philosophy, hence Western law.
Applied to sex, he is the government, she is the governed.
It’s purpose is to attribute and justify the requisite obedience of the powerless to the rule of the powerful. It’s about compliance. One is regarded as tacitly consenting to whatever one does not leave; you consent because you are there; whether leaving is a realistic option or not. Silence in sex is deemed consent. CONSENT IS NOT AN EQUAL CONCEPT.
Under unequal conditions, many women acquiesce in or tolerate sex they cannot as a practical matter avoid. CONSENT IS A PATHETIC STANDARD OF EQUAL SEX FOR A FREE PEOPLE.
On the view that a rape is about what (usually) a man did, mostly to women and children, sometimes to other men, a useful legal starting point is the Akayesu decision from the International Criminal Tribunal for Rwanda where rape is defined as a ‘physical invasion of a sexual nature committed on a person under circumstances which are coercive: COERCION IS PRESENT BECAUSE CONSENT IS ABSENT.’
The definition is on the force side but is not limited to physical force. In International criminal law, when a nexus with war or genocide or campaigns of crimes against humanity is established for a sex act, such that sexual assault is weaponised, these circumstances of coercion make it arguably unequal, vitiating consent of any operative meaning.
In settings outside recognised zones of armed conflict or genocide, “circumstances” adapted to domestic settings of so-called peacetime could include psychological, economic, and hierarchical forms of coercion – which, in limited ways, some jurisdictions already recognise in the sexual assault context.
Suppose we combine the best of the international definitions to redefine rape domestically as ‘a physical invasion of a sexual nature under circumstances of threat or use of force, fraud, coercion, abduction, or the abuse of power, trust, or a position of dependence and vulnerability’!
Then it is essential to explicitly recognise that psychological, economic, and other hierarchical forms of force are coercive, including age, mental and physical disability, and other inequalities, including sex and gender, and that states like drunkenness and unconsciousness are positions of vulnerability.
Apparently it is difficult to think about sexuality in equal terms. The Swedish model of prostitution is educating the world that paid sex is forced sex, engaging in world leadership by setting a standard for what violence against women includes. The proposed definition of sexual assault in terms of circumstances of coercion could do the same. “It all starts somewhere”.