The #MeToo movement is accomplishing what sexual harassment law to date has not.
Catharine MacKinnon is being far too modest. Much as the movement may be the culmination of social factors that caused, and gave us, the current administration, she’s dedicated her life to making those factors happen, creating the narrative that allowed that confluence of events, beliefs and feelings that would result in a time when extrajudicial unproven allegations by women would, without more, destroy men.
Sexual harassment law — the first law to conceive sexual violation in inequality terms — created the preconditions for this moment. Yet denial by abusers and devaluing of accusers could still be reasonably counted on by perpetrators to shield their actions.
This, of course, is utterly false. Rape has always been a crime. So too assault. Indeed, harassment was eventually criminalized, though not specifically for women. Much as there is no law prohibiting the murder of women apart from murder of any person, there are now laws that function that way, whether in word or practice.
Many survivors realistically judged reporting pointless. Complaints were routinely passed off with some version of “she wasn’t credible” or “she wanted it.” I kept track of this in cases of campus sexual abuse over decades; it typically took three to four women testifying that they had been violated by the same man in the same way to even begin to make a dent in his denial. That made a woman, for credibility purposes, one-fourth of a person.
There’s no cite for her claim that it “typically took three to four women” to get a man, but she’s never needed facts to support her claim. She’s proven remarkably capable of asserting her narrative as reality, inexplicably managing to simultaneously promote two facially inconsistent beliefs without the slightest hint of cognitive dissonance.
Women are strong and smart. They can be and do anything.
Women are weak and afraid. They need special protections and lesser demands of the law.
To note this inconsistency isn’t to be fair, to believe in equality, but to be a tool of the Patriarchy, and thus attacked with ad hominems under the guise of having a discussion. And it was the law that failed women, which is why any comparison of accuser and accused was a false equivalency.
Even when she was believed, nothing he did to her mattered as much as what would be done to him if his actions against her were taken seriously. His value outweighed her sexualized worthlessness. His career, reputation, mental and emotional serenity and assets counted. Hers didn’t. In some ways, it was even worse to be believed and not have what he did matter. It meant she didn’t matter.
No mention of foundational principles, like the presumption of innocence or burden of proof. Her contentions depend on the ability to push the appeal to emotion without invoking any appeal to reason. Thought was her enemy. Logic was the death of her rhetoric.
It is widely thought that when something is legally prohibited, it more or less stops. This may be true for exceptional acts, but it is not true for pervasive practices like sexual harassment, including rape, that are built into structural social hierarchies.
Murders are illegal, yet they still happen. So too almost every crime imaginable. But she plays a trick here, which is why this assertion might, at first blush, appear not nearly as absurd as it is. By using “sexual harassment” as her touchstone, she seizes upon that vagary, that phrase that has served to conflate every tinge of female unpleasantness, with heinous offense like rape.
But even rape isn’t rape anymore. That the word has become entirely untethered from any cognizable legal meaning is an amazing, shocking feat. The word still evokes a horrible image of a terrible offense, but it’s now used to describe consensual sex where a women was tipsy, or where a year later a woman rationalizes that her enthusiastic consent wasn’t given willingly, especially when the male has since started dating another. Or when the white woman’s girlfriends start shaming her for trying a black man on for size.
This logjam, which has long paralyzed effective legal recourse for sexual harassment, is finally being broken. Structural misogyny, along with sexualized racism and class inequalities, is being publicly and pervasively challenged by women’s voices. The difference is, power is paying attention.
In the past, accusations of wrongdoing were dealt with by the legal system. It was, and remains, a grossly imperfect system, but it served as a way for the people in society to co-exist. MacKinnon is right that the difference is “power is paying attention,” but is it because of the epiphany of unproven allegations or the fear of the mob?
Powerful individuals and entities are taking sexual abuse seriously for once and acting against it as never before. No longer liars, no longer worthless, today’s survivors are initiating consequences none of them could have gotten through any lawsuit — in part because the laws do not permit relief against individual perpetrators, but more because they are being believed and valued as the law seldom has. Women have been saying these things forever. It is the response to them that has changed.
Of course the law permits relief against individual perpetrators, and this assertion, like so many she propounds, is simply wrong. But what MacKinnon neglects to mention is that her mob is enjoying consequences because it’s been relieved of the burdens the legal system imposes. Burdens of proof. Presumptions. Evidence. The right to defend. It’s amazingly easier for the accuser to prevail in the absence of scrutiny.
But it is #MeToo, this uprising of the formerly disregarded, that has made untenable the assumption that the one who reports sexual abuse is a lying slut, and that is changing everything already. Sexual harassment law prepared the ground, but it is today’s movement that is shifting gender hierarchy’s tectonic plates.
In the past, this would be viewed as unprincipled, especially coming from a law professor. That the one-time irrational ranting of a lunatic against the presumption of innocence, against every precept of American jurisprudence, in furtherance of an understanding of evidence that suffices whether it’s overwhelming or totally inadequate, based on a nonsensical narrative, has gained acceptance is an extraordinary accomplishment.
It’s taken MacKinnon a lifetime to undermine the legal system, to create a narrative that eliminates all reason, all principle, from the rage of the mob. She was the high priestess of a religion, and she managed to get people to believe in her god. Now the god demands sacrifices.