THE OPEN MIND
Host: Richard D. Heffner
Guest: Catharine A. MacKinnon
Title: “Men, Women and Violence”
I’m Richard Heffner, your host on THE OPEN MIND. Several times now, at this table, I’ve referred to having shared Liberty Conference, the cerebral rather than the celebratory part of the Liberty Weekend 100th Anniversary bash for the statue of Liberty. Not only was it an extraordinary coming together of distinguished Americans from all sections and segments of our nation, it was a meeting ground for many who have thought long and hard about liberty and responsibility. And one of the great pleasures for me was to meet men and women who have joined us since here on The Open Mind, or who will in the future. Now, today my guest is a person who was very, very much present at Liberty Conference, Catharine A. MacKinnon, feminist, lawyer, teacher, writer, and activist, whose field is constitutional law and who invented sexual harassment as a legal claim for sex discrimination. Professor MacKinnon co-authored, with Andrea Dworkin, various local ordinances recognizing pornography as a civil rights violation. And I want to begin today by asking her, in her opinion, why efforts to have sexually explicit portrayals of the subordination of women seen as civil rights violations, have been frustrated in court, including the Supreme Court of the united states. Professor MacKinnon, why?
MacKinnon: Well, I think that the answer to why pornography is protected, both socially and legally to this point, is really the answer to the question that you asked. Actually, the Supreme Court has not explicitly addressed itself to the ordinance that Andrea Dworkin and I originated. The popularity of pornography socially has been heightened certainly by the media. It’s also the case that a great many legitimate interests – for instance, the ACLU – have defended it. And both of those forces, that is the media and groups like the ACLU, have widely given the impression that the united states Supreme Court has found our ordinance unconstitutional. Actually, the Supreme Court declined to review a lower court. So the state that we’re in at this point is that any law making body could pass the ordinance, recognizing women’s civil rights against pornographers, at any point in time. But your real question, the reason why the efforts have been frustrated, I think is due to the power of the pornographers, in part. The pornographers are largely organized crime, they have a great deal of power, a great deal of money, a great deal of subterranean influence, they intimidate a lot of people. The pornographers also have a great deal of legitimacy through the support of and the fronting of legitimate groups like the ACLU and like the media. One also cannot neglect the fact that if you are, as the pornographers are, producing eight billion dollars a year gross receipts, that means you have a great many consumers. So the consumers who get sexual pleasure from pornography, that is from using women for their own sexual pleasure in this way, are a major force in…in frustrating efforts to do something about it.
Heffner: But Professor MacKinnon, that then leads me to what I consider to be the key question. Talk about eight billion dollars in returns on pornography – what does that say about us as a people, what does it say about the potential for successfully taking action in legislatures, in the courts finally?
MacKinnon: Well, I think what it says is that a great many people, most of them men, enjoy sexually using women. And in many cases what that means is that pornography is an industry that is built on force, it is built on hurting women as well as merely exploiting and using women, in some cases murdering women, in many cases engaging in…in acts of torture, acts that if they had been committed against men, or if they were committed in say the prisons of Argentina, or as they have been committed in the concentration camps of Auswitz and Dachau, are recognized as torture. But in the case of the making of pornography they’re not. They’re considered to be sex. So…
Heffner: But is that because we don’t know or we don’t care?
MacKinnon: I think that the people who know don’t care, and the people who care don’t know, in part. That is, a great many people know a great deal about pornography from rather intimate acquaintance – they use it, they enjoy it. In particular, they masturbate with it. Once – and at least studies have shown this and it’s something that women know from our own experience – once one has had an orgasm with pornography, particularly if one has done it from being very young and over time, that then becomes what one’s sexuality is. So that when you enjoy it in that way, you are very less likely to see that the person who is used in that way was hurt or was simply used so that you could use her. And you are also less likely to see that, for instance, someone who has been the victim of a rape, when they’re telling you what the rape was, one is less likely to see that that was a rape. In other words, pornography desensitizes men, the consumer, to women’s pain, particularly when it’s done through sex. It desensitizes the viewer to violence against women and makes some think that that’s what women want, that’s what women really are like, that’s what women enjoy, that’s what a woman’s sexuality really is, that’s how women are fulfilled. And that makes it very difficult to persuade a population that is essentially saturated with pornography, and a population in particular for whom pornography is, in a certain sense, sex education. It is how a vast number of young me learn about what sex is. So it makes it very difficult to do anything about it because it’s seen as innocuous pleasure, harmless fantasy. And for men it’s seen as something that is there for them, they can have that. Someone at age thirteen says, ‘here’ and hands them a Playboy or a Penthouse.
Heffner: Do you think that, uhm…you say men. Do you think that most men…are you using the word generically? Are you assuming that men quo males enjoy/participate in pornography?
MacKinnon: No, it’s really a statistical term for…
Heffner: …What do you mean, statistical term?
MacKinnon: …that is to say, statistically the consumers of pornography are overwhelmingly men. So when I’m talking about the consumers of pornography, it is in fact men about whom I’m talking on the whole.
Heffner: But in terms of the potential that you have for seeing justice done in your terms, I’m really questioning whether you are talking about a country…you used the word ‘saturated’ before.
Heffner: You said that men are saturated in terms of viewing this kind of material. What hope is there then for you to achieve what you want to achieve? And I’m not challenging you. I’m not challenging the rightness of it. I’m asking what possibility there is because you seem to posit this in such extraordinary terms that tone would say, ‘Listen, if MacKinnon was right, the game is over, there is no way of doing anything’.
MacKinnon: Well, I think that anyone who does conclude that…from looking at the immense difficulty of confronting this question, I couldn’t necessarily say that you’re wrong. In other words, I’m not saying that there are many good reasons for hope because this is probably…I mean, certainly the most difficult issue I’ve encountered or thought about when it comes to questions of women’s rights, when it comes to questions of sex equality. I think that it’s not so much that one looks at this question and decides, ‘Hey, you know this is possible, we can do something about this.’ If one looks at this and decides, ‘This is necessary, if we don’t do something about this, we’re not going to get anywhere, not really, not on anything.’ So I think it’s a question of…I mean, if you were looking at say slavery, pre-Civil War, if you look at that, would you look at that and say, ‘You know, I think there is some real potential for change here, it would be possible to do this.’ I think if you looked at that situation realistically, you swathe force that contained it, you saw the mindset that made one look at a black person and see a slave by nature. One looks at the economics of it and sees how powerful the system is, how it is quote unquote necessary to a lot of people, how people enjoy it, how people profit from it, and how simply the use of these human beings in this way is taken for granted as social structure. I think one would not see that there was a great deal of hope, but that doesn’t mean that people give up. It only means that the greater the atrocity, the greater the necessity. The more one has to do something, or you don’t really have a survival chance.
Heffner: I think your metaphor is…is…is well taken, well made and it’s a fascinating one. But it leads one to say then that at the time of the coming of the Civil War there was a powerful constituency for those how led the anti-slavery forces. But even during the war it took a long, long time into the war before Lincoln was willing to make abolition the reason, the cause, the basis for war. And I’m not trying to say, ‘Look, you’ve lost, you can’t win.’ I hope you win. I’m just wondering what the key must be to having victories that you need. And also, of course, I wonder about the nature of the victories. You mentioned before that very respectable groups, not the pornographers, join in taking exception to your legal efforts – the ACLU for instance. I wonder if you as a lawyer, well versed in constitutional law, have any sense of a downside to the ordinances you’re drawn up, any sense of the downside to the nature of your effort to make the picturing of pornography a cause for legal action. I mean, we’re talking here about something that is parallel to the way Jews feel perhaps about The “Merchant of Venice” the way blacks have felt historically about Uncle Tom’s Cabin. Not that, but about Birth of a Nation, and about many of the books and plays, but the role that Step-and-Fetchit played. I mean, is there any sense on your part of the downside to your efforts?
MacKinnon: Well, the parallel that I made between the way, say, black people were treated under slavery and the way women are treated through pornography was not a metaphor. As a matter of fact, if one wants to see black women being treated in the way the black women were exactly treated on the plantations, one needs merely to look in pornography and you will see that treatment being done. It was more a political parallel. And of course, it is not an exact one. What I see to be…I mean, there’s always a potential downside with any attempt at social change.
MacKinnon: And, for example, to continue this parallel, immediately after the Civil War, a great many black people had what they called only freedom. In other words, before the Civil War there was a…and before emancipation, there was a situation in which, yes, one was the slave, but some slaves, for example, were taken care of in certain ways or had jobs or whatever. This is not a rationale for slavery, but the minute that was over what were their possibilities? Tenant farming. That is to say, the economic solidity of the situation, however horrible, was one that existed, which then after the situation of women…I mean, people don’t look at say battery of women and say, ‘What’s the downside of doing something about this?’ But in fact, there is one. If a woman isn’t being battered in a home, she will not be a battered wife, but what will she be doing?
Heffner: …but then I ask you…
MacKinnon: …So what I’m saying is, there’s always a downslide to social change when a group of people has been, and is being fundamentally oppressed. The question is, is the society in a sense going to accommodate their freedom by accommodating them as whole human beings. And, you know, there’s that level of question here. I also wanted to respond to what you said about this being like “The Merchant of Venice” and Uncle Tom’s Cabin, although I think Birth of a Nation might be a little closer as a parallel, you recognized that. I think if you had to lynch someone to actually make the lynching scene in Birth of a Nation, the parallel would be correct. I think that if one actually had to perform anti-Semitic atrocities to people in order to create the art or literature of anti-Semitism, then that would be an adequate parallel. What we have here is essentially, you have to use women…it’s as if you had to grind women up to make the ink…
Heffner: …But you know, I’m really puzzled…
MacKinnon: …there’s a much more immediate process than any of these quote unquote literatures.
Heffner: I’m a little puzzled. I understand that, when you say an act of violence takes place in the use of women in making these films, I understand that.
MacKinnon: I’m saying that they do.
Heffner: I understand that, but I was under the impression, and I’ve always been very much moved by your insistence that it is the creation of a way of thinking, of a frame of reference, that is the true violation of women. It is the treatment, it is not the what is done to one woman or seven women or seventy or seven thousand, but rather an attitude. Which is, of course, why blacks have been concerned about they have historically, traditionally been pictured in American film, in American theater, and in American literature, why Italians are concerned about the god father image, why Jews have been concerned about “The Merchant of Venice”. Now, that’s the level on which I…I wonder if you would address the downside there because what you lead to…similar demands and what happens to what we used to call the First Amendment.
MacKinnon: Well, and still do, especially those of us who, as political dissidents value it highly and find, in fact, too little access to it.
Heffner: No dangers in what you are suggesting?
MacKinnon: Well, what I do want to…to make clear is that the parallel to pornography as…sort of an attitude creation – that level does exist for pornography. But there are so many levels of violation of pornography that it’s important, I think, to have them all in front of you when you are thinking about it. We don’t plan to neglect the one woman, the seven women, the thousands of women who are used in the pornography. That is to say, it cannot be made unless they are abused in these ways. And for that reason our ordinance has a provision that anyone who is coerced into pornography can sue the pornographers and attempt not only to get relief for the ways they were abused and coerced into making the pornography, but also for…
Heffner: …if you went that far…
MacKinnon: …for…for the profits that are made off of their bodies. So that’s one…
Heffner: …if you went…if you went that far…
MacKinnon: …that is only one violation of pornography…
Heffner: …right. But if you went that far and no further, do you think you would have the respectable elements of the community who oppose what you are suggesting…
MacKinnon: …they oppose that also…
Heffner: …on your side.
MacKinnon: No, we would not. That is to say, the…um…it may be surprising, and it is t me, that the people who oppose our ordinance also, in particular, do oppose our coercion section. That is, they oppose a woman who has been coerced into pornography being able to get the material that was made off of her out of the market. They just want to make sure that even if something is done about the act of coercion itself, that the materials which provided the incentive for that coercion, the materials which are the product of that coercion, can continue to be trafficked. In other words, she can be trafficked. Like, for example, Linda Marchiano, who was coerced into the film Deep Throat. She is being trafficked today and the position of all these legitimate members of our community is that maybe something should be done about that original pimp who put the gun to her head and forced her to do the acts against her will. But those pornographic…the pornographers, those pimps, should be left free to traffic in this product. You see? And that is their position. That also was their position on child pornography. And the same groups – the ACLU – opposed the laws against child pornography all the way to the Supreme Court. The Supreme Court fortunately sat through this and they said child pornography is a form of child abuse. So what you now hear is some of these groups saying, oh, that’s alright, you know. Pornography is a…child pornography is a form of child abuse, we’re against those acts too, but what we oppose was the dissemination. Well, what’s happened, however, is that the production and the dissemination of those quote unquote images is what the Supreme Court recognized is the child abuse. And we’re making an argument that is, on this level, very similar to that.
Heffner: I’m not a lawyer, as you know, and I’m sure that ACLU representatives could do justice in combating what you’ve said. Harriet Pilpell, at our Liberty Conference, did. That’s why I ask you, as an attorney, whether you don’t have some concerns, some real concerns…we’re talking here about very responsible people, we’re not talking about pornographers…
MacKinnon: …We are talking about people who have not, in fact, read and understood the ordinance, who do not comprehend its approach, and who do, in fact, distort it in discussion.
Heffner: Okay. I come back to the same question – do you have any concerns, as a lawyer, as an attorney, as someone concerned as you said a moment ago, with the First Amendment, about the efforts that you are making; efforts that have been supported by those who have not traditionally been friends of freedom of speech? I’m really asking you, just between us, whether there is any concern that you have.
Heffner: …I’m not doing battle with you and you know that.
MacKinnon: …Well, of course we have concerns and that’s why we framed the ordinance in the way that we did. We also do have concerns for…I mean, the ordinance is very concrete, it’s very narrow. Unlike, for example, obscenity law which is now the law of the land, about which I have a great many concerns, which does empower the state, is criminal, is in the hands of the prosecutors, is in the hands of the police, is in the hands now of those who have not traditionally been friends of the First Amendment, and is extremely vague – has a great many indefinite terms in it. And yet, of course, coexists beautifully with an industry which has doubled its gross since the obscenity law has been created. Now I’ll tell you what I learned from that and why it is that I may not be as concerned as you might wish I were about what would happen to our ordinance. Alright? Our ordinance puts power in the hands of women, particularly women who can prove that they have been hurt by pornography. No one could get any relief under this law unless they could prove that either all women or they as individuals, or they as individuals in instances of all women, had been hurt. Right now obscenity law requires no such proof of harm. I feel that putting that kind of power in the hands of women and placing the requirement of showing harm in the hands of juries and in courts and providing for the possibility of actual material relief to victims who have been directly harmed are…is an extremely good way to go about the process of social change that you asked me about earlier. It empowers direct victims. It gives them legitimacy, it gives them access to court, it gives them a forum, it gives them the right to say, as we did with sexual harassment, at a time in which it was not recognized as harming anybody – if you do this, this hurts me in this way and I can get relief from that…
Heffner: …in a society…in a society such you have described, as our own, where billions of dollars are involved in pornography each year, why are you satisfied to let it all go at the proof before a jury that direct harm as been done? Isn’t that a very, very, very weak read indeed?
MacKinnon: What’s weak about it? I mean, that’s the entire theory of the argument.
Heffner: The capacity to prove it.
MacKinnon: Ah. Well, it will be difficult.
Heffner: Why do you want something to…that will…that you’ve designed to achieve something so fundamental to be so difficult to achieve?
MacKinnon: Well, because the entire point of it is that pornography does harm women and it is because it harms women that we want something done about it. So what that means is that, you know, our politics, our analysis, and the reason why this is a civil rights violation is because pornography subordinates women. Pornography makes women into second class citizens. It also participates in an entire range of concrete harm such as rape, battery, sexual abuse of children, forced prostitution, sexual harassment at…in all…in all levels. And so what we’re saying is…I mean, it’s taken to be a, you know, a sort of blanket and…and very broad and almost sort of Sumerian/Utopian approach to the problem. But it isn’t. It’s a …the approach that it take sis as difficult as you’re recognizing. And the reason why we take that approach is because that is our analysis of the problem. Basically, the pornographers can’t do what they’re doing – they can’t make it and the consumers can’t use it without hurting women.
Heffner: But the question is whether you can prove, in court, that an individual…
MacKinnon: …we’re asking for the chance to try. All we are asking for is the chance to try.
Heffner: Someone might come along and say that’s a diversion. It’s so farfetched that it’s a diversion – in a complex society.
MacKinnon: So all we’re say…I don’t see what’s…a diversion from what? A diversion from the fact women are being harmed though pornography?
Heffner: No, no, no, no. well perhaps. The diversion from some more direct action. Maybe extend the definition of obscenity.
MacKinnon: We have no interest in the definition of obscenity. It’s extended beyond where it should be. I mean, the definition of obscenity on its…you know, materials that appeal to the prurient interest that you know, that violate contemporary community standards. Well, contemporary community standards are set by pornography. I mean, what were contemporary community standards or black in the pre-Civil War South? What were contemporary community standards for Jews in…in…in the thirties – in Germany? I mean, it’s…the entire thing has the entire thing has the wrong analysis of the problem…
Heffner: …But you know, in a society in which…
MacKinnon: …and it puts the power in the hands of the prosecutors, of…of the police, of those people who not only have not been tremendous friends necessarily of the First amendment, but have done very little for women in those areas in which they now hold all the power. For instance, the things that are done through pornography – rape, battery. I mean, why should we give them that power? We’re saying, let us do it.
Heffner: But you know, so many times in a court, the matter of rape…in the matter of rape, the assumption is that the woman has asked for it, to use the traditional phrase…
MacKinnon: …but a very pornographic assumption.
Heffner: …in…absolutely. But in…
MacKinnon: …which has never been addressed through pornography.
Heffner: …but in a situation where there is an immediate victim – now how, when that has been such a successful defense all through the years, in a society that has been characterized by that defense, do you have an effective law accomplishing what you want to accomplish when you are saying that the social mores of a community must be demonstrated to have brought about a vicious result for an individual woman when we can’t even get away in an individual rape situation from the ‘she asked for it’ argument?
MacKinnon: I agree that that’s a tremendous problem. And what we’re trying to do is to devise a tool that will allow…give us a way in to work at that problem on terms that we find work-withable. You see, it’s very…it’s such a polite law. It’s so minimal. You know? And all we’re asking for is a basically fair set of ground rules, you know, that don’t essentially assume that, you know, what we…what we exist for is to be sexually used. It essentially raises the question that if a woman says, ‘this hurt me’, that somebody might think sometimes women are hurting this way and maybe this is one of them. That’s all that it is.3so it guarantees nothing. It doesn’t solve the problem which you’re raising. It gives us an attempt to try to solve the problem that you’re raising.
Heffner: And I hope, Professor MacKinnon, as we reach the end of our program, I hope that we can as a society meet the challenge that…that you raise. Again, not as a lawyer and as one who has been brushed or tarned with the brush of civil liberties concerns, I have my real questions. But by gosh and by golly I hope that you achieve so much of what you want to achieve and thank you for joining me today on The Open Mind.
MacKinnon: Well, thank you very much.
Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s guest, today’s theme, and it’s a controversial one, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck.”
Continuing production of this series has generously been made possible by grants from: The Rosalind P Walter Foundation; the M. Weiner Foundation of New Jersey; the Mediators and Richard and Gloria Manney; the Richard Lounsbery Foundation; the Lawrence A. Wein; Pfizer Incorporated; and the New York Times Company Foundation.