Mercury Rising

Catherine MacKinnon is one of those people who urgently need to be ignored and unfortunately is not. She is a feminist who has recently made a stir by asking if women are human and concluding that the legal system behaves as if they were not. When one examines the rhetorical ploys she uses to argue that case, one discovers a deeply flawed and basically dishonest argument. That's not to minimize gender issues, nor to dismiss positive things MacKinnon has done to oppose abusive treatment of women. It's true that women face many difficulties, ranging from the pay differential to overpriced clothes to getting treated to guff from a wide assortment of idiots. If the newspaper says that someone has been raped, tortured, or murdered in a family dispute, odds are it's a woman. Women also enjoy certain advantages. If a wife takes a few years off to raise kids, recruiters don't instantly assume she has a secret drug problem. As the underpaid second earner, she can quit the job if it's killing her. Most of what makes life easy or hard has to do with health, class, and race. There have been a couple of interviews of MacKinnon recently. The Guardian one helps to illustrate the rhetorical games MacKinnon uses. She writes: "If women were human, would we be a cash crop shipped from Thailand in containers into New York's brothels? Would we be sexual and reproductive slaves? Would we be bred, worked without pay our whole lives, burned when our dowry money wasn't enough or when men tired of us, starved as widows when our husbands died (if we survived his funeral pyre)? ... This manages to conflate maltreatment of women from third world countries with what goes on industrialized nations. There is so much injustice in the world that one could write a similar paragraph about almost any group. For example: If men were human, would we be conscripted into armies and forced to murder our brothers and sisters on penalty of being murdered ourselves? Would we be forced to leave everything familiar behind and go to a foreign land to earn a livelihood to support our wives and mothers? When a Japanese man's work life is done, he retires to a home which his labor purchased yet in which he is regarded as an interloper, a "gomibako" (giant pile of garbage). But even in that so-called enlightened America, men are disproportionately imprisoned and forced to labor under conditions similar to those of the third world." The "father's rights movement" and other anti-feminist organizations write rhetoric just like that. It's inflammatory and dishonest. Here's another MacKinnon quote: "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." There are plenty of problems in law with the issue of consent, and they don't have just to do with sex or women or whether the person was alive at the time. But in MacKinnon's Massachusetts, here are some of the statutes: 1 Statutory rape: up to 3 years in prision and up to $1000 fine. If the victim is under 16, the penalties are much more severe 2 Rape: up to life in prison, with a minimum of 15 years if a gun is used 3 Drugging persons for sexual intercourse: not less than ten years. These are not exactly mild punishments. The latter makes it clear that there's no assumption of consent if a person is drugged. The burden falls on the accused. And they really don't have any trouble at all prosecuting cases of rape if the plaintiff is willing to go through with it. The problem is that, unlike most crimes, the testimony of the plaintiff is almost always required, and testimony is difficult under any circumstance. We are only 40 years away from a time in the nation's legal history when women were more or less treated as property. The great movement there has been is testimony to the how wrong MacKinnon is. Feminism is the civil rights movement of gender, seeking to have everyone treated fairly because discrimination hurts us all. But behind the issue of gender is really the issue of class. The remedy for most of the ills that affect women is greater opportunity and higher incomes. There's no mystery why it's women from Thailand that get shipped in as sex slaves. Does anyone for a minute think that the women of Saddle Brook would put up with that? And look at prisons. They are filled with poor people, mostly men. Many of them could be regarded as slaves. This is a class issue. MacKinnon is seeking equality of outcomes, which is impossible. In so doing, she makes the long, slow business of getting equality of opportunity that much the more difficult. In the final analysis, she's like Alan Dershowitz: a clever advocate but too glib to provide genuine leadership.