Feminism: Legal Aspects

Catharine MacKinnon's critique of rape law was a small part of a larger argument about the social subordination of women. That critique has focused attention not only on violence itself but also on representations of violence. MacKinnon argued that pornographic representations of women as subordinated objects (for example, women who experienced rape as pleasure) was central to the construction of a sexuality of dominance and inequality: "[p]ornography is a means through which sexuality is socially constructed. . . . It constructs women as things for sexual use and constructs its consumers to desperately want women to desperately want possession and cruelty and dehumanization." Thus, MacKinnon goes on to state, "through pornography, among other practices, gender inequality becomes both sexual and socially real." (MacKinnon, 1989, pp. 139–140).

MacKinnon worked with Andrea Dworkin to draft a model anti-pornography ordinance that attacked both the violence of the pornography industry and its portrayals of violently subordinated women. The groundbreaking ordinance, adopted in Indianapolis in 1984, defined pornography as a practice that discriminated against women; it thus explicitly linked the law's notion of discrimination to violence against women. The Indianapolis law provided a civil cause of action to those victimized by pornography, allowing them to sue makers and distributors of pornography for damages caused by harmful representations. The two principal classes of potential plaintiffs envisaged by the statute were women who had been coerced into making pornographic films and battered or raped women who could show that the abusers' use of pornographic material had contributed to the abuse.

The MacKinnon fight against pornography proved to be quite controversial among feminists because it appeared to impinge on free speech and liberal ideals of choice. Critics argued that the MacKinnon/Dworkin ordinance invited censorship and played into Victorian notions of women as asexual beings. Liberal feminists argued that women should be able to decide for themselves the kind of material they found enjoyable, sexually arousing, or dominating. Critics further predicted that the ordinance would have a chilling effect upon representations of unorthodox sexual conduct, including the sexual conduct of lesbians and gays. Supporters of the ordinance replied that the statute was being misconstrued by critics and that it did not attempt to censor all sexually explicit material but only discriminatory representations that harmed and subordinated women. The harm in question, they argued, was not so vague as to prohibit all explicit material but, rather, a form of harm with an evidentiary basis that had to be proved in court. In American Booksellers Ass'n. v. Hudnut (771 F.2d 323 (7th Cir. 1985)), aff'd, 475 U.S. 1001 (1986)), the Seventh Circuit court of appeals struck down the Indianapolis ordinance as unconstitutional. Admitting, at least for the sake of argument, the statute's premise that pornography did subordinate women, the court of appeals nevertheless concluded that the law was a content-based regulation impermissible under the First Amendment. According to the court, the statute's definition of pornography was the equivalent of "thought control," establishing an "'approved' view of women."

The pornography battle revealed a significant rift within feminism between liberal and dominance feminists. That debate has certainly tempered enthusiasm for dominance-feminism. Yet, MacKinnon's argument has proved influential in other guises. For example, despite the failure of the Indianapolis ordinance, a statutory definition of pornography similar to MacKinnon's was ultimately sustained by the Supreme Court of Canada in Regina v. Butler (89 D.L.R. 4th (S.C.C. 1992)). MacKinnon's notion of "harm"—the harm caused by pornographic imagery—has been invoked in other debates within the criminal law, in particular, debates about hate crime statutes. More importantly, the link between violence and discrimination has proved quite influential, both legally and politically. Indeed, despite the judicial criticism of MacKinnon's ordinance, by 1990, legislators began to propose a federal statute linking civil rights to anti-female violence.