Article: 30562 of misc.legal Newsgroups: misc.legal Path: parc!decwrl!elroy.jpl.nasa.gov!usc!snorkelwacker.mit.edu!bloom-picayune.mit.edu!news From: wdstarr@athena.mit.edu (William December Starr) Subject: The Complete Catharine MacKinnon Column Message-ID: <1992Jan5.182719.23989@athena.mit.edu> Sender: news@athena.mit.edu (News system) Nntp-Posting-Host: e40-008-13.mit.edu Organization: Northeastern Law, Class of '93 Date: Sun, 5 Jan 92 10:27:19 PST Lines: 115 A while ago, someone posted excerpts from a New York Times column that U. of Michigan Law School professor Catherine A. MacKinnon wrote shortly after the conclusion of the William Smith rape trial in Palm Beach. For the record, here's a transcript of the complete column. -=-=-=- cut here -=-=-=- cut here -=-=-=- cut here -=-=-=- [From page 15 (the "OP-ED" page) of the Sunday, December 15, 1991, New York Times] The Palm Beach Hanging ---------------------- by Catherine A. MacKinnon San Francisco Watching the second public hanging of a woman who accused a powerful man of sexual violation reflects the way in which sexual assault in the United States today resembles lynching in times not long past. One is lynched and raped as a member of a socially subordinated group. Each is an act of torture, a violent sexual humiliation ritual in which victims are often killed. When it happens, the target population cringes, withdraws, identifies and disidentifies the terror. When the abusers get away with it, the group becomes smaller, quieter, more ingratiating. The legal system is dominated by members of the same group who aggress, so that the atrocities are formally illegal but seldom rally against the law. There are differences. Some rapists act alone, but gang rapes, such as those committed in fraternities, parallel the Ku Klux Klan's communal night rides. Another difference is that nobody ever said black men enjoyed or consented to lynching, but some said they asked for it. In place of the 50-cent photographs of lynchings for those who missed the hanging body, we have the $10 billion-a-year pornography industry. The biggest difference, apart from the gender of the victims, is that lynching is recognized as a civil rights violation. The inequality is acknowledged: lynching happens because of race. There is no acknowledgement that rape happens because of sex. It does, and the law should recognize it. Women are raped because we are women: neither individually nor at random, but on the basis of gender. Sexual violation is both a practice and an index of inequality between the sexes, both a symbol and an act of women's subordinate social status to men. The legal system collaborates in this. Few rapes are reported, most women citing distrust of the criminal justice system. Fewer are prosecuted and even fewer result in convictions. Most convicted rapists rape again. In other words, most rapists continue to live in society undetected, unreported, unpunished and unrehabilitated, and this in a legal system in which expressions of sex bias are commonplace. If this system of sex-based disparity were recognized, it would be clear that it violates the 14th Amendment's guarantee of equal protection under the laws. What if Florida's case against William Kennedy Smith had been a sex equality case? Instead of asking did this individual commit a crime of battery against that individual, the court would ask did this member of a group sexually trained to woman- hating aggression commit this particular act of woman-hating aggression? Because the case would be civil not criminal, the would not have to prove this "beyond a reasonable doubt" but only by "a preponderance of the evidence." A sex equality right to keep one's name out of the newspaper, in the interest of promoting women's equal access to justice, could outweigh the First Amendment right to print it. Set in the context of women's enforced inequality to men, the alleged victim would not have been seen as an exception. It would be clear that infinitely more rapes that _do_ happen are _not_ reported than _are_ reported and do _not_ happen. The testimony of other women victims, barred from the Palm Beach trial, would be central: how does this man treat women sexually? Is he a sex bigot? Expert testimony on rape trauma could set each woman's experience in the context of all women's experience. The victim's statement that she did not "want to be responsible for him [William Kennedy Smith] doing it to someone else" would not have been the possible basis for a mistrial; it would have been the whole point. The misogyny of Roy E. black, the defendant's lawyer, using words like "hysteria" and other standard ploys to destroy women's sexual credibility, would be exposed as gender bias. We might have learned whether pornography, used in some medical schools to desensitize students, was part of the defendant's training. It might explain his possible incomprehension of the meaning of the word "no." Would this alter outcomes? Recognizing lynchings as systematic acts of racial bigotry, not deranged crimes of isolated maniacs, has helped abolish them. At least rape would be called in law what it is in life: sex discrimination. -=-=-=- cut here -=-=-=- cut here -=-=-=- cut here -=-=-=- By the way, folks, if you decide to include any quotes from the MacKinnon column in any replies to this article, *please* attribute them correctly, e.g., "In article , William Starr reported that Catherine MacKinnon said..." and *not* "In article , William Starr said..." Thank you. -- William December Starr