Fem.inism.

U N M O DIFIED
Discourses on Life and Law
CATHARINE A. MACKINNON

HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts, and London, England 1987
Copyright © 1987 by the President and Fellows
of Harvard College
All rights reserved
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1

This book is printed on acid-free paper, and its binding

materials have been chosen for strength and durability.

Library of Congress Cataloging-in-Publication Data

MacKinnon, Catharine A.
Feminism unmodified.

Bibliography: p.
Includes index.
1. Women-Legal status, laws, etc.-United States.
2. Feminism-United States. I. Title.
KF478.M25 1987 346.7301'34 86-25694
ISBN 0-674-29873-X (alk. paper) 347.306134
For Andrea Dworkin
 Contents

INTRODUCTION The Art of the Impossible 1

I. APPROACHES
1 Not by Law Alone: From a Debate with Phyllis Schlafly 21
2 Difference and Dominance: On Sex Discrimination 32
3 Desire and Power 46
4 W hose Culture? A Case Note on Martinez v. Santa Clara
Pueblo 63
5 On Exceptionality: Women as Women in Law 70

II. APPLICATIONS
6 A Rally against Rape 81
7 Sex and Violence: A Perspective 85
8 Privacy v. Equality: Beyond Roe v. Wade 93
9 Sexual Harassment: Its First Decade in Court 103
10 Women, Self-Possession, and Sport 117

III. PORNOGRAPHY
11 Linda's Life and Andrea's Work 127
12 "More Than Simply a Magazine": Playboy's Money 134
13 Not a Moral Issue 146
14 Francis Biddle's Sister: Pornography, Civil Rights, and
Speech 163
15 On Collaboration 198
16 The Sexual Politics of the First Amendment 206

AFTERWORD 215

Notes 231
Acknowledgments 307
Index 309
Feminism Unmodified
introduction
The Art of the Impossible
Brian Coyle: It's sometimes said politics is the art of the possible ...
Sandra Hilary: Sometimes I think it's more the art of the impossible.
Debate on the civil rights law against pornography, Minneapolis City Council,
July 24, 1984

T
his is a second look at the second wave of feminism in the
United States, after fifteen years of trying to change the status
of women by law and every other available means. Because I
want you to hear me speaking, rather than read me writing, many of
the texts in this collection appear exactly as they were spoken. The
formality varies with the occasion, but they were all spoken first with­
out a written text, even those that were later revised. These are en­
gaged works, occasioned by the urgency of the problems women
face, not by abstract agendas or academic imperatives. In retrospect,
during the years these speeches encompass, 1981 to 1986, the wom­
en's movement has been moving toward a crossroads.
The Equal Rights Amendment, designed to make sex legally irrel­
evant, was lost, in part through opposition by women. The abortion
right, framed as a right to privacy rather than a right to sex equality,
was recognized, only to be taken almost immediately from women
who have least access to it.1 Losing it entirely is an ever-current dan­
ger, and its opponents include women. Women are poor, and pay is
at least as far from being sex-equal as it was before the passage of
legislation guaranteeing pay equality by law.2 Women are more and
more losing custody of their children,3 in part because of legal re­
forms feminists helped put in place. The rape rate is increasing sig­
nificantly, while the conviction rate for rape is not,4 in spite of legal
changes feminists fought for and won over the last decade.5 We are
headed for another showdown on pregnancy, this time framed as a
debate on whether states that provide maternity benefits are violat­
ing the view of sex equality that organized feminism has sought to
institutionalize.6 In this string of defeats and declines, the law on
sexual harassmene and some legal advances against domestic battery
of women and marital rape-the social impact of all of which is as
yet unknown-are among the few exceptions. To this picture, add

1
Introduction

the feminist attempt to get civil rights for women exploited by por­
nographers, an attempt that was opposed by some claiming feminist
ground for their opposition, and it begins to seem like time for a real
reassessment.
Feminism has not changed the status of women. It is not enough
to observe that social change is glacial, law is inadequate to move
anything basic, and power is powerful. These truisms parade solip­
sism, the complacency of privilege, and despair as sophistication, cri­
tique, even radical politics. And to describe a state of affairs is not to
explain it. An explanation of the failure of feminism to change the
world for women must be a study in that world as well as of it.
Because we need to know them, these speeches are looking for
answers to the big questions of the subordination of women to men:
its roots, damage, pervasiveness, tenacity, enforcement, and capacity
for change. We need to know how the inequality of the sexes is lived
out, threaded from one moment to the next through millions of life­
times of habit into individual identities and social relations. We need
to know more about how women experience and respond to being
second class, from unconsciousness and denial and collaboration to
consciousness and resistance and confrontation. We need to know
precisely how the benefits and burdens of this system are allocated­
including the way showcase indulgences to a few women in a rich
liberal state purchase legitimacy for a system that functions nation­
ally and internationally at the expense of all women. We need to
know how this system gives each woman a survival stake in the sys­
tem that is killing her.
We urgently need to comprehend the emerging pattern in which
gender, while a distinct inequality, also contributes to the social em­
bodiment and expression of race and class inequalities, at the same
time as race and class are deeply imbedded in gender. For example,
the sexualization of racial and ethnic attributes like skin color or
stereotypes is no less a dynamic within racism for being done
through gender. The masculinity of money as a form of power takes
nothing from its function as capital, although it does undermine
some models of economic rationality, including leftist ones. Women
get their class status through their sexual relations with men of par­
ticular classes; perhaps their racial status, also no less real for being
vicarious, similarly derives from racial hierarchies among men. From
these and other examples, gender in this country appears partly to
comprise the meaning of, as well as bisect, race and class, even as
race and class specificities make up, as well as cross-cut, gender. A

2
 Introduction

general theory of social inequality is prefigured, if inchoately, in these

connections.
I am thinking all the time about power: the simplicity of the force
and the complexity of the authority that make male supremacy a spe­
cific politics, and the changing shades of complicity, its feminine face.
Some day, probably a day marked by no one at the time, but some
time after the beginning of the end of this system, the questions con­
sidered here will simply become part of "the political." How sister­
hood became powerful8 while women were powerless will take its
place among the classic alchemies of political history. How did they
do that? students will be encourged to wonder.
My arguments and meditations to this end provide the themes that
unify this volume. The first theme is the analysis that the social re­
lation between the sexes is organized so that men may dominate and
women must submit and this relation is sexual-in fact, is sex.9 Men
in particular, if not men alone, sexualize inequality, especially the in­
equality of the sexes. The second theme is a critique of the notion
that gender is basically a difference rather than a hierarchy. To treat
gender as a difference (with or without a French acccent10) means to
treat it as a bipolar distinction, each pole of which is defined in con­
trast to the other by opposed intrinsic attributes.11 Beloved of left and
right alike, construing gender as a difference, termed simply the gen­
der difference, obscures and legitimizes the way gender is imposed
by force. It hides that force behind a static description of gender as a
biological or social or mythic or semantic partition, engraved or in­
scribed or inculcated by god, nature, society (agents unspecified), the
unconscious, or the cosmos. The idea of gender difference helps keep
the reality of male dominance in place.
The third theme identifies pornography in America as a key means
of actualizing these two dynamics in life. Pornography turns sex in­
equality into sexuality and turns male dominance into the sex differ­
ence. Put another way, pornography makes inequality into sex,
which makes it enjoyable, and into gender, which makes it seem nat­
ural. By packaging the resulting product as pictures and words, por­
nography turns gendered and sexualized inequality into "speech,"
which has made it a right. Thus does pornography, cloaked as the
essence of nature and the index of freedom, turn the inequality be­
tween women and men into those twin icons of male supremacy, sex
and speech, and a practice of sex discrimination into a legal entitle­
ment.
Confronting pornography through civil rights law12-meaning,

3
Introduction

with a concrete intention of actually doing something about the dam­

age pornography does to women's safety and status-has somewhat
illuminated the social meaning of state power. The terms of the por­
nography debate have been altered through the feminist exposure of
pornography as an industry, not just an iconography; as a trade in
female flesh, not just imagery or ideas; as more practice than theory;
as a means as well as a metaphor for the oppression of women. Lib­
eral convention imagines a state hostile to sexuality and to speech,
especially dissident sexuality and dissident speech. The state, in this
view, would leap at any opportunity to restrict pornography. The ut­
ter failure of this state to do anything effective about it-with the
extremely elastic obscenity standard in its hands and all of its power
at its disposal-should suggest that this theory of the state is lacking.
The hostile, even contemptuous, response of the courts to the first
round of women's attempt to gain civil rights against pornographers13
should suggest that this theory of the state is wrong. At the least,
this response implies that the dissident and the conventional have
been misdiagnosed. The behavior of the state better supports the
view that its interest, expressed through its law, is to guarantee that
the pornography stays. Just as aesthetics defines and protects por­
nography as art, literary criticism defines and protects it as literature,
and sexology defines and protects it as sex, the First Amendment
defines and protects it as speech. And for the same reasons: political
reasons, reasons of sexual politics, reasons of the power of men over
women. One wonders which came first, the canon or the pornog­
raphy.
With few exceptions, feminism applied to law has provided no cri­
tique of the state of its own, and little insight into specific legal con­
cepts from the standpoint of women's experience of second-class cit­
izenship. Particularly in its upper reaches, much of what has passed
for feminism in law has been the attempt to get for men what little
has been reserved for women or to get for some women some of the
plunder that some men have previously divided (unequally) among
themselves. This is not to argue that women should be excluded from
the spoils of dominance on the basis of sex, exactly. Rather, it is to
say that it is antithetical to what women have learned and gained, by
sacrifice chosen and unchosen, through sheer hanging on by bloody
fingernails, to have the equality we fought for turned into equal ac­
cess to the means of exploitation, equal access to force with impunity,
equal access to sex with the less powerful, equal access to the privi­
lege of irrelevance. As male academics have been able to afford to talk

4
 Introduction

in ways that mean nothing, so also women; as male pornographers

have been permitted to subordinate women sexually through pic­
tures and words, so also women. In the words of Andrea Dworkin,
if this is feminism, it deserves to die.
I think the fatal error of the legal arm of feminism has been its
failure to understand that the mainspring of sex inequality is misog­
yny and the mainspring of misogyny is sexual sadism. The misogyny
of liberal legalism included.14 This, at least, is my understanding
of the popular denial that sexual violation is a sexual practice. The
determined belief that sex and violence are mutually exclusive is a
wish fulfillment that has clouded the theory and confused the ac­
tivism, including the legal activism, of the movement.15 Related is the
equally popular assumption that the gender inequality we confront
is really only a natural biological harmony to be restored, rather than
a fundamental social conflict to be resolved. So, too, the alternating
and simultaneous rejection and embrace of sex as a difference16 has
evaded the issues of power and left the hierarchy that is gender right
in place.

Sexuality

They said, "You are a savage and dangerous woman." [I said] "I am speaking
the truth. And the truth is savage and dangerous."
Nawal El Saadawi, Woman at Point Zero (1983), the story of a prostitute

Since 1970, feminists have uncovered a vast amount of sexual abuse

of women by men. Rape, battery, sexual harassment, sexual abuse of
children, prostitution, and pornography, seen for the first time in
their true scope and interconnectedness, form a distinctive pattern:
the power of men over women in society. These abuses are as allowed
de facto as they are prohibited de jure. Formal prohibition has done
little to alter their frequency; it has helped make it hard to believe
that they are so common. The reports that are believed are treated as
if the events and their victims are statistically deviant, because the
events they report have been branded as morally and legally deviant.
In fact, it is the woman who has not been sexually abused who de­
viates.
The reason feminism uncovered this reality, its methodological se­
cret, is that feminism is built on believing women's accounts of sexual
use and abuse by men.17 The pervasiveness of male sexual violence
against women is therefore not denied, minimized, trivialized, erot-

5
Introduction

icized, or excepted as marginal or episodic or placed to one side while

more important matters are discussed. The fact that only 7.8 percent
of women in the United States have not been sexually assaulted or
harassed in their lifetime18 is not considered inconsequential or iso­
lated. The fact that sexual violation is a sexual practice is faced. A
new paradigm begins here, one that fits the reality of the experience
to be explained. All the ways in which women are suppressed and
subjected-restricted, intruded on, violated, objectified-are recog­
nized as what sex is for women and as the meaning and content of
femininity.
If this is done, sexuality itself is no longer unimplicated in women's
second-class status. Sexual violence can no longer be categorized
away as violence not sex.19 Women do not thrive on violation,
whether or not it is done through sex. But our rapists,2° serial mur­
derers ("I killed my mother for the same reason I've killed all those
other women. The reason was sex."),21 and child molesters ("It's as
natural for me to have sex with children the way it's natural for some
people to have sex with women.")22 enjoy their acts sexually and as
men, to be redundant. It is sex for them . What is sex except that which
is felt as sexual? When acts of dominance and submission, up to and
including acts of violence, are experienced as sexually arousing, as
sex itself, that is what they are. The mutual exclusivity of sex and
violence is preserved in the face of this evidence by immunizing as
"sex" whatever causes a sexual response and by stigmatizing ques­
tioning it as repressive, knowing that what is thereby exempted in­
cludes humiliation and brutality and molestation and murder as well
as rape by any definition. Violence is sex when it is practiced as sex.23
If violation of the powerless is part of what is sexy about sex, as well
as central in the meaning of male and female, the place of sexuality
in gender and the place of gender in sexuality need to be looked at
together.
When this is done, sexuality appears as the interactive dynamic of
gender as an inequality. Stopped as an attribute of a person, sex in­
equality takes the form of gender; moving as a relation between
people, it takes the form of sexuality. Gender emerges as the con­
gealed form of the sexualization of inequality between men and
women. So long as this is socially the case, the feelings or acts or
desires of particular individuals notwithstanding, gender inequality
will divide their society into two communities of interest. The male
centrally features hierarchy of control. Aggression against those with
less power is experienced as sexual pleasure, an entitlement of mas-

6
 Introduction

culinity. For the female, subordination is sexualized, in the way that

dominance is for the male, as pleasure as well as gender identity, as
femininity. Dominance, principally by men, and submission, princi­
pally by women, will be the ruling code through which sexual plea­
sure is experienced. Sexism will be a political inequality that is sex­
ually enjoyed, if unequally so.
Sexual abuse works as a form of terror in creating and maintaining
this arrangement. It is a terror so perfectly motivated and systemati­
cally concerted that it never need be intentionally organized-an ar­
rangement that, as long as it lasted, would seal the immortality of
any totalitarianism. I have come to think that the unique effectiveness
of terrorism, like that against Jews in Argentina/4 is that it is at once
absolutely systematic and absolutely random: systematic because one
group is its target and lives knowing it; random because there is no
way of telling who is next on the list. Just to get through another day,
women must spend an incredible amount of time, life, and energy
cowed, fearful, and colonized, trying to figure out how not to be next
on the list. Learning by osmosis what men want in a woman and
trying to give it to them, women hope that being the wanted image
will alter their odds. Paying attention to every detail of every incident
of a woman's violation they can get their hands on, women attempt
not to be her. The problem is, combining even a few circumstances,
descriptions, conditions, and details of acts of sexual abuse reveals
that no woman has a chance. To be about to be raped is to be gender
female in the process of going about life as usual. Some things do
increase the odds, like being Black. One cannot live one's life attempt­
ing not to be a Black woman. As Black women well know, one cannot
save it that way, either.
Because the inequality of the sexes is socially defined as the enjoy­
ment of sexuality itself, gender inequality appears consensual. This
helps explain the peculiar durability of male supremacy as a system
of hegemony as well as its imperviousness to change once it exists.
It also helps explain some of the otherwise more bewildering modes
of female collaboration. The belief that whatever is sexually arousing
is, ipso facto, empowering for women is revealed as a strategy in
male rule. It may be worth considering that heterosexuality, the pre­
dominant social arrangement that fuses this sexuality of abuse and
objectification with gender in intercourse, with attendant trauma,
torture, and dehumanization, organizes women's pleasure so as to
give us a stake in our own subordination. It may even be that to
be "anti-sex," to be against this sex that is sex, is to refuse to affirm

7
Introduction

loyalty to this political system of inequality whose dynamic is male

control and use and access to women-which would account for the
stigma of the epithet.

Gender

I wish I had been born a doormat, or a man.

Jean Harris, headmistress of Madeira School and convicted killer of Herman Tarnower,
her former lover. She testified she had intended to kill herself instead.

Gender is an inequality of power, a social status based on who is

permitted to do what to whom. Only derivatively is it a difference.
Differences between the sexes do descriptively exist; being a doormat
is definitely different from being a man. That these are a woman's
realistic options, and that they are so limiting, calls into question the
explanatory value and political agenda implicit in terming gender a
difference. One is not socially permitted to be a woman and neither
doormat nor man.
The differences we attribute to sex are lines inequality draws, not
any kind of basis for it. Social and political inequality are, I think,
basically indifferent to sameness and difference. Differences are in­
equality's post hoc excuse, its conclusory artifact, its outcome pre­
sented as its origin, the damage that is pointed to as the justification
for doing the damage after the damage has been done, the distinc­
tions that perception is socially organized to notice because inequal­
ity gives them consequences for social power. Distinctions of body or
mind or behavior are pointed to as cause rather than effect, without
realizing that they are so deeply effect rather than cause that pointing
to them at all is an effect.
Inequality comes first; differences come after. Inequality is substan­
tive and identifies a disparity; difference is abstract and falsely sym­
metrical. If this is so, a discourse of gender difference serves as ide­
ology to neutralize, rationalize, and cover disparities of power, even
as it appears to criticize them. Difference is the velvet glove on the
iron fist of domination. This is as true when differences are affirmed
as when they are denied, when their substance is applauded or when
it is disparaged, when women are punished or whey they are pro­
tected in their name. A sex inequality is not a difference gone wrong,
a lesson the law of sex discrimination has yet to learn.25 One of the
most deceptive antifeminisms in society, scholarship, politics, and
law is the persistent treatment of gender as if it truly is a question of

8
 Introduction

difference, rather than treating the gender difference as a construct

of the difference gender makes.26
Gender inequality pervades the way we think. If a concept like dif­
ference is a conceptual tool of gender inequality, it cannot deconstruct
the master's house. Especially when it has built it. Difference is what
the gender system says gender is; dominance it denies-only this
should be a clue. Consider legal reasoning, in which analogy and
distinction are methodologicaJ.27 Like and unlike, similar and dissim­
ilar, have been the meta-metaphor through which the law has put its
systemic norm of equal treatment into effect: like and unlike are
"like" equal and unequal. Like many metaphors, its hold is more te­
nacious than its applicability often warrants. Why should women
have to be "like" men to be treated as equal citizens? Why should sex
inequality have to be "like" racial inequality to be treated as an invid­
ious inequality? As Benjamin Cardozo said of metaphor, "[T]he word
starts out to free thought and ends by enslaving it."28 To make a deep
change in something that, once it exists, apparently has never not
existed-and sex inequality has changed little if sex equality is your
standard-requires a new way of thinking, not just thinking about
new things.
Try thinking without apology with what you know from being vic­
timized. Give up the Olympian partiality of objectivity and try for a
fairness and an authority that neither dominates nor submits to your
material or your audience. Keeping time and change moving in your
mind, make order intelligible without the crutch of variance. Think
the determinism of structural force and the possibility of freedom at
the same time. Look for the deepest meanings in the least elevated
places. Be more radical than anyone has ever been ·about the un­
known, because what has never been asked is probably what we
most need to know. Take the unknowable more seriously than any­
one ever has, because most women have died without a trace; but
invent the capacity to act, because otherwise women will con­
tinue to.
These are largely new conceptual problems, but this is not primar­
ily a conceptual program. This may be what is most new about it. If
it does not track bloody footprints across your desk, it is probably not
about women. Feminism, the discipline of this reality, refuses to ab­
stract itself in order to be recognized as being a real (that is, axio­
matic) theory. In terms of existing theory, the distinctive intellectual
challenge of feminism is to retain its specificity without being con­
fined to the parochial; its distinctive practical challenge is to stay con-

9
Introduction

crete without being crushed. In feminist terms, it is difficult to be

narrow if you truly are talking about the situation of 53 percent of the
population, but it is almost impossible to survive if you do-which
makes these one and the same challenge.

Pornography

She gave up, deciding to end this torture once and for all . . . [she] began
eagerly to await her death . . . When she had nearly achieved her goal, her
Grandmother Clara . . . appeared with the novel idea that the point was not
to die, since death came anyway, but to survive, which would be a miracle
. . . She suggested that she write a testimony that might one day call atten­
tion to the terrible secret she was living through, so that the world would
know about this horror that was taking place parallel to the peaceful exis­
tence of those who did not want to know, who could afford the illusion of a
normal life, and of those who could deny that they were on a raft adrift in a
sea of sorrow, ignoring, despite all evidence, that only blocks away from their
happy world there were others . . .
Isabel Allende, The House of the Spirits (1985), an episode about torture under a Latin
American dictatorship

Almost everything that needs to be said about pornography can be

said about Linda Marchiano, because everything people think about
it, they think about her. As recounted in her book Ordeal,29 Linda
Marchiano was coerced by abduction, systematic beatings, surveil­
lance, and torture into the persona of "Linda Lovelace," the center­
piece of the pornographic film Deep Throat. During her two and a half
years of captivity, she was never out of the sight of the pimp Charles
Traynor. When she tried to leave, he threatened her life and the lives
of her family. He guarded her with weapons. She had to ask his per­
mission to go to the bathroom, where he watched her through a hole
in the wall. He prostituted her; johns who beat her got her for free.
He slept on top of her at night. He listened to her telephone calls on
an extension. When he recaptured her after escape attempts, he tor­
tured her horribly. He forced her to marry him and, with a gun, to
have sex with a dog. These are the conditions under which Deep
Throat, a paean to women's sexual freedom, was made. In it "Linda
Lovelace" finds sexual ecstasy in fellatio because her clitoris is in her
throat.
Men. The stunning and durable success of the film suggests that it
is enjoyed by many. An equally stunning and durable part of their
enjoyment is the belief that Deep Throat is true and Ordeal is false.

10
 Introduction

Linda was willing; she loved it. Men, the best of them, don't want to
believe what she says happened, because they try to think of women
as human beings like them, and they just can't believe it would hap­
pen to them. Which, for the most part, it wouldn't. So much for hu­
manism. Men, the rest of them, don't want to know that she didn't
like it. She loved it, see, she was paid. Never mind that consent in
sex-and pornography is a form of sex-is supposed to mean free­
dom of desire expressed, not compensation for services rendered,
which is what it means in commodity exchange. To show she did it
for the sex should be to show that she did it for free. Not that Linda
saw any of the money.
Maybe because this is a bourgeois culture, which cherishes the be­
lief that individuals freely act, it is important that she personally
loved taking a penis to the bottom of her throat, as if women really
are like that. To hear that Linda Marchiano had to be hypnotized
under threat of death to suppress the normal gag response seems to
take something away; it is somehow detumescent. But every actual
act of force it took to get her to look as though she was having such
a wonderful time would have been completely in context had por­
nography been made of it. Her screams and cries and terror and in­
ert despair and empty eyes would all have been sex in one of the
many pornographic Pygmalions: mere biological female becomes real
woman through being raped until she discovers she loves it, that is,
she discovers her true self.
Had the slave training of Linda Lovelace been presented in por­
nography instead of in Ordeal, it would have been a sex act. As a sex
act, the fact that it happened would have been believed. But even if
all the force had been shown, the fact that she was forced would still
not have been believed, not even then. Men believe what turns them
on. What else can one think about the fact that no one had ever seen
a woman deep-throat like that-an act whose verisimilitude ap­
proaches absolute zero, especially compared with the violence of
pimps, which is known-yet it was believed. When a woman be­
comes the pornographer's "speech," her violation is sex and is there­
fore the truth. When a woman speaks for herself, her violation be­
comes an atrocity and is therefore a lie. So Deep Throat is protected
speech30 and Ordeal is sued for libeJ.31
Women. A lot of women know that what Linda says is true, and
some are willing to face it: "I got away and she didn't."32 A lot of
women know that what Linda says is true but are not willing to face
it. It means that what happened to her could happen to them at any

11
Introduction

time, and nothing would be done about it. A very few, who naturally
are given the highest visibility, seemingly would rather see Linda
being used, or know that they could, than work to keep anyone, even
themselves, from being used like her. Perhaps, particularly with
some educated women, who have become accustomed to interpolat­
ing themselves into culture as a survival and advancement strategy­
reading the Nietzschean man and substituting she for he, reading the
Freudian man and finding the oedipal problems more personally res­
onant than the electra ones-it should be no surprise if they relate to
the pornography more as for them than as of them. Within the frame
of reference they have adopted, everything is supposed to be for
them. It is harder to explain why such women have not also learned
that most men cannot really tell the difference between them and
Linda-men who live out the class definition of women that both the
women and the men deny exists. Yet even among the most privileged
women, this is an anomalous reaction. Most do not relate to pornog­
raphy as for them, even if they do not see it as of them. Not yet.
The politics of the pornography issue do remind one that some
women, however nominally, are compensated for women's status
better than others. This gives the relatively advantaged a stake in the
status quo, which they hang on to with all the tenacity of having
something to lose. As things stand, all women who are not prosti­
tutes or in pornography get the benefit of not being that class of
woman. A precarious status, and a matter of degree, but very real
nonetheless. Women who know that men value them in terms of the
sexual access they provide as surely as they know the laws of gravity,
and who identify and value themselves as the accessed just as the
apple values its ability to fall from the tree, see the attack on pornog­
raphy as an attack on them. The attack is, instead, on the terms by
which all women have had no choice but to be identified and limited
and used.
Pornography is a complex issue, but on this level it is really simple:
if you are a woman, that could have been you, it is you; if you are a
man, it is for you, in your name. Most women do not think the
woman in the pornography is them, and most men don't, either. The
men are mostly right and the women are mostly wrong.
Law. Before working with the pornography issue, I was taught that
inalienable rights was a normative principle of natural law that sup­
posedly underlay positive law. Its idea was, individuals were not to
be treated in certain ways. Linda Marchiano's numerous and so far
unsuccessful attempts to get relief through the legal system and to

12
 Introduction

end the abuse to her person, including stopping Deep Throat, reveals
the utter sentimentality and deceptiveness of these ideas in law. An
individual whose rights are systematically and cumulatively vio­
lated-for instance, a woman hurt as a woman, as a member of the
gender female-does not seem to be what the law had in mind. Usu­
ally, a great deal less happens to people, or they are never heard from
again. Lawyers considering whether anything can be done for a
woman who is damaged in ways that make her less than the perfect
case rarely conclude that they should confront or change the law.
They look at cases the way surfers look at waves.
It is apparently difficult to carry on about the ultimate inviolability
of the person in the face of a person who has been so ultimately
violated. The shame and denial over the term "victim" has the same
structure. The embarrassment of Linda's existence in the face of her
victimization must be made ideologically comfortable. This is done
by turning her into a nonperson and the natural law dogma into a
simple empirical tautology: whoever is so cumulatively violated as to
be an emblem of collective violation is simply not that bundle of
rights termed "the individual." If it happened and it hurt her, she
deserved it. If she didn't deserve it, either it didn't happen or it didn't
hurt her. If she says it hurt her, she's oversensitive or unliberated. If
she says it happened, she's a liar or a natural-born whore. Either it
didn't happen or she loved it.
At one American Civil Liberties Union meeting at which I spoke,
a woman told me she thought all speech should be protected, includ­
ing Deep Throat. Asked what Ms. Marchiano should do now, she re­
plied, "Deal with whatever in herself allowed her to let this happen
to her." Linda's desire not to be dead, is what she was referring to. In
this way of thinking, to be a victim, if one is a woman, becomes a
statement of status, rather than the noun form of an imposed con­
dition. In this logic, instead of Linda's resilience and dignity being
taken as proof that something, unaccountably, is not destroyed, the
violations she suffered are taken as the measure of her individual
worth. What was done to her is attributed to her. Thus do the women
in pornography become, in Andrea Dworkin's words, "the sexual dis­
appeared of this society."33 When your life is pornography, it's por­
nograpy for life. On bad days, asking why so much less of it destroys
most women looks like a hopeful question.
Even those who believe it did happen and Linda did not love it,
don't seem to care. It is this indifference, finally, that gets to you over
time. Linda becomes a subject to evade, as if she is not really the

13
Introduction

issue. How could she not be the issue? The erasure and trivialization of
what was done to Linda, and to countless other women hurt through
pornography in countless ways, is the key to all the opposition to
women having civil rights against pornographers. Turning that key
could break the lock of liberalism on women's advancement through
law. Linda's violation is made insignificant by making it sex.
One of the advantages of male supremacy, along with money and
speech and education and respectability, is sexual access to women,
of which pornography is one form. Women being the universal sex
object under male supremacy, sexual access to women makes you
human. It makes you real, like money. 34 The promise that qualified
women can have access to whatever men as a gender have had access
to, is the promise of liberal equality. Men as a gender have had access
to women.
Abstract equality undermines substantive inequality, but it rein­
forces it at the same time. For example, sexual choice that is abstract
as to gender, say men sexually choosing men, can challenge the
premises of masculinity. It also, in substance, can affirm male su­
premacist sexuality: men come first. Similarly, women sexually
choosing women can challenge the position of women as the sexually
acted-upon. This choice undermines the automatic exclusivity of
male sexual access to women. But so long as gender is a system of
power, and it is women who have less power, like any other benefit
of abstract equality, it can merely extend this choice to those women
who can get the power to enforce it. The price of this equal access to
sex, which means equal access to those with less power without re­
gard to gender, the price of this so-called abstract equality is loyalty
to and defense of the substantive system that delivers up all women
as a class to all men.35 Women who defend this system are, in effect,
procuring women for men.
In other words, I think the systemic indifference to Linda's suffer­
ing is based on sexual self-interest. It is sexual self-interest whether
it is done by women or men, whether by those who gain sexual ac­
cess through it because they like it or by those who are sexually ac­
cessed because of it whether they like it or not, but are trying to make
the best of a situation that they think (not without reason) they can­
not change. So long as male supremacy exists and is sexual, male
identification will exist and be sexual also, and sexuality will be gen­
dered and unequal. Women like Linda will be defined the way
women are defined: by what is sexually done to them. And we will
be told that no sexuality is safe unless what was done to Linda can

14
 Introduction

be done. And this will mean that no woman is safe so long as what
was done to Linda can be done. I hope the substantive misogyny of
liberal neutrality requires no further demystification.
Tolerance is the solution liberalism offers. A very substantive sex­
ual blackmail lies at the heart of this liberal tolerance. In order not to
criticize anyone's sexuality, it is women, specifically, who are used
and abused by men, women who are sacrificed by calling it sex,
everyone hoping they will be left alone with theirs. By the same logic,
the defense of lesbian sadomasochism would sacrifice all women's
ability to walk down the street in safety for the freedom to torture a
woman in the privacy of one's basement without fear of intervention,
in the name of everyone's freedom of choice. Obscured in this deal is
the fact that the status quo has real risks, not just dangerous sexy
thrills-real risks run by all women who are targeted for sexual use
and abuse on the basis of a condition of birth, such that when that
use and abuse is found pleasurable it is called sex and therefore dei­
fied, when it is done in private it is called consensual and thereby
exonerated, and when it is done through words and pictures it is
called speech and thereby constitutionalized.
In this protection racket37 of tolerance, everybody's sexual bottom
line is rhetorically defended as freedom of expression, which has the
political genius of making everybody potentially complicit through
the stirring between their legs. But anyone with an ounce of political
realism knows that the promise is illusory: sexual freedom is not and
will not be equally delivered, no matter how many women are sac­
rificed on its altar. And anyone with an ounce of political analysis
should know that freedom before equality, freedom before justice,
will only further liberate the power of the powerful and will never
free what is most in need of expression. If what turns you on is not
your bottom line, and if you understand that pornography literally
means what it says, you might conclude that sexuality has become
the fascism of contemporary America and we are moving into the last
days of Weimar.

Women have been deprived not only of terms of our own in which
to express our lives, but of lives of our own to live. The damage of
sexism would be trivial if this were not the case. A feminism that
seeks to understand women's situation in order to change it must
therefore identify, criticize, and move those forms and forces that
have circumscribed women in the world and in the mind. Law, like

15
Introduction

pornography, inhabits both. To remake society so that women can

live here requires a feminism unqualified by preexisting modifiers.
Obviously this has not been done, or things would not be as they
are. Qualifying feminism by socialism or liberalism, while descrip­
tively accurate to socialist feminism and liberal feminism, signals the
limitation of feminism to that province of liberalism where we reason
together about women's issues, to that moment on the left when we
take up the woman question. Until these theories abandon their
gender-neutral absolutes, such as difference and sexuality and
speech and the state, they will not only attribute the products of very
non-gender-neutral inequality, such as femininity and submission
and silence and exclusion, to women as such, as if these are not im­
posed on us daily, but they will participate in reducing us to them.
Searching for a ground for feminism without giving up its romance
with gender, keeping sexuality as modus vivendi and difference as
frame, liberal theory looks for the truth of women in the mirror of
nature. Left theory looks for the truth of women in the mirror of
social materiality. In nature, liberalism discovers the female. In soci­
ety, the left discovers the feminine. Having located a ground for
women's equality within conditions of women's inequality, they
speak feminism in the liberal voice, feminism in the left voice. But
feminism in its own voice does not speak this way. Feminism has
revealed nature and society to be mirrors of each other: the male gen­
der looking at itself looking at itself. Intending to convey something
rather different, Norman Mailer deploys the same epistemic conver­
gence to discuss a photograph of Marilyn Monroe. Is a woman nature
or society, or do we even exist, when he says, "She is a mirror of the
pleasure of those who stare at her"? 38 Suppose this is true and she
knew it and killed herself. A feminism that does nothing about that,
does nothing for her, does nothing.
Among the accomplishments of this wave of feminism are some
voices who, when we say that very little has been done for women,
might possibly be heard. Hear this: the abstract equality of liberalism
permits most women little more than does the substantive inequality
of conservatism. One genius of the system we live under is that the
strategies it requires to survive it from day to day are exactly the op­
posite of what is required to change it. Of women it requires silent
sexual submission, just as of workers it requires work. Until the cost
of this is collectively experienced as unacceptable by those who have
drawn the best of men's options for women, and glimpsed as change­
able by those who have drawn the worst, we will continue to live-

16
 Introduction

if it can be called living-under its aegis. And issues like pornogra­

phy and access to abortion, as surely from the left as from the right,
will mark the end of the women's movement in this century, rather
than what could be its beginning, or its rededication.

17
I. APPRO ACHES

[Men] think themselves superior to women, but they mingle that with
the notion of equality between men and women. It's very odd.
Jean Paul Sartre, quoted in Adieux by Simone de Beauvoir
one

Not by Law Alone:

From a Debate with Phyllis Schlafly
(1982)

I
am here to discuss the meaning and future of women's rights.
Mrs. Schlafly claims to speak as a woman, to and for all women.
So do I. She claims to speak from the woman in all women. So
do I. She claims to speak about what women know from our own
lives. So do I. And about our deepest fears and aspirations.
We bring you two views on women's situation. The differences be­
tween us require asking one of the most important and neglected
questions of history: What is it to speak as a woman? Who speaks for
women?
I speak as a feminist, although not all feminists agree with every­
thing I say. Mrs. Schlafly speaks as a conservative. She and I see a
similar world, but we portray it differently. We see similar facts but
have very different explanations and evaluations of those facts.
We both see substantial differences between the situations of
women and of men. She interprets the distinctions as natural or in­
dividual. I see them as fundamentally social. She sees them as inevi­
table or just-or perhaps inevitable therefore just-either as good and
to be accepted or as individually overcomeable with enough will and
application. I see women's situation as unjust, contingent, and im­
posed.
In order to speak of women as a feminist, I need first to correct
Mrs. Schlafly's impression of the women's movement. Feminism is
not, as she implicitly defines it, liberalism applied to women. Her
attack on the women's movement profoundly misconstrues femi­
nism. Her critique of the women's movement is an artifact, an appli­
cation, of her long-standing critique of liberalism, just as her attack
on the ERA is an artifact of her opposition to the federal government.

In the waning days of the last attempt to ratify the Equal Rights Amendment, I twice
debated Phyllis Schlafly, a leading conservative opponent. One debate took place at
Stanford Law School, Stanford, California, Jan. 26, 1982; the other was at the School of
Theology, Claremont, California, Mar. 16, 1982.

21
Approaches

Women as such are incidental, a subplot, not central, either to liber­

alism or to her critique.
Liberalism defines equality as sameness. It is comparative. To
know if you are equal, you have to be equal to somebody who sets
the standard you compare yourself with. According to this approach,
gender difference is the evil of women's situation because it enforces
the nonsameness of women and men. Feminism-drawing from so­
cialist feminism lessons about class and privilege, from lesbian fem­
inism lessons about sexuality, from the feminism of women of color
lessons about racism and self-respecting communities of resistance­
does not define equality this way. To feminism, equality means the
aspiration to eradicate not gender differentiation, but gender hier­
archy.
We stand for an end to enforced subordination, limited options,
and social powerlessness-on the basis of sex, among other things.
Differentiation, to feminism, is just one strategy in keeping women
down. Liberalism has been subversive for us in that it signals that we
have the audacity to compare ourselves with men, to measure our­
selves by male standards, on male terms. We do seek access to the
male world. We do criticize our exclusion from male pursuits. But
liberalism limits us in a way feminism does not. We also criticize male
pursuits from women's point of view, from the standpoint of our so­
cial experience as women.
Feminism seeks to empower women on our own terms. To value
what women have always done as well as to allow us to do every­
thing else. We seek not only to be valued as who we are, but to have
access to the process of the definition of value itself. In this way, our
demand for access becomes also a demand for change.
Put another way, Mrs. Schlafly and I both argue that in a sense
"women are not persons," but with very different meanings. When
the right affirms women as women, it affirms woman's body as a de­
terminant of woman's existing role, which it sees as her rightful
place. Feminists criticize the social disparities between the sexes that
not only exclude women from personhood as that has been defined,
that not only distort woman's body and mind inseparably, but also
define personhood in ways that are repugnant to us. Existing soci­
ety's image of a person never has represented or encompassed what
we, as women, with women's experience, either have had access to
or aspire to.
Mrs. Schlafly opposes feminism, the Equal Rights Amendment,
and basic change in women's condition, as if the central goal of the

22
 Not by Law Alone

women's movement were to impose a gender-free society; as if we

defined equality as sameness. This is not accurate. Our issue is not
the gender difference but the difference gender makes, the social meaning
imposed upon our bodies-what it means to be a woman or a man
is a social process and, as such, is subject to change. Feminists do
not seek sameness with men. We more criticize what men have made
of themselves and the world that we, too, inhabit. We do not seek
dominance over men. To us it is a male notion that power means
someone must dominate. We seek a transformation in the terms and
conditions of power itself.
I have asserted that women's place is not only different but inferior,
that it is not chosen but enforced. To document that, I need to ask:
what is women's situation? Because it happens to each of us in iso­
lation, one at a time, it looks individual, even chosen. Mrs. Schlafly
teaches that if we follow the rules for women's role, are energetic,
cheerful, diligent, "positive," and make smart choices, the world is
ours. To confront her requires us to ask not only what happens to
women who step out of women's place, but also what happens to us
in that place. What about women who do not seek different bargains
with society; but live out society's traditional bargain for women, the
bargain she defends?
I want to share with you a body count from women's collective
experience in America. We all start as little girls. One of two hundred
of us, conservatively estimated, is sexually molested as a child by her
father. When brothers, stepfathers, uncles, and friends of the family
are included, some estimate that the rates rise to two out of five.1 As
we grow, we are pressured into sex for popularity and out of sex for
virtue and are told not to go crazy with this or we will be institution­
alized. And we are, for behavior that is not punished, is even en­
couraged, in little boys. I would like Mrs. Schlafly to explain that.
Any one of us can be raped on the street at any time; conserva­
tively; we are at a rate of one every six minutes. A recent random
study in San Francisco showed 44 percent of women have been vic­
tims of rape or attempted rape at least once in their lives, not count­
ing in their marriages. The chances are worse for women of color.2
What does Mrs. Schlafly propose to do against rape? What is her
position on rape in marriage? Is there any such thing, or is it women's
.
duty to submit? Could that be part of why rape is so prevalent? In
the same random study; only 7.8 percent of women reported experi­
encing no sexual assault or harassment.3 How does Mrs. Schlafly's
vision of society account for or respond to this?

23
Approaches

Women are systematically beaten in our homes by men with whom

we are close. It is estimated that between one quarter and one third
of married women experience serious violence in their homes-some
studies find as many as 70 percent.4 Four out of five murdered
women are killed by men; between one third and one half are mar­
ried to their murderers.5 When you add boyfriends and former
spouses, the figures rise. Mrs. Schlafly's defense of the family rein­
forces the guilt that keeps women in these vicious, emotionally and
physically deadly situations. We should stay, stick it out, do more of
what he wants, maybe it will get better. Believe him when he repents.
But how does she explain men's violence toward us? Will she tell us
it is just "some men," they are deviant exceptions? A third to a half
of them? Or will she tell us to be grateful-the family civilizes men,
think how much worse it could be? I say the family legitimizes vio­
lence to women and calls that civilization.
Most women work outside the home as well as inside it-in the
female job ghetto, in high-heeled, low-status jobs with low pay. Mrs.
Schlafly purports to be for equal pay for equal work, but unequal pay
is a function of the traditional male-headed family she defends, in
which a man's higher wage is justified because he supports a family.
A woman's wages are extra. This is part of why women's work, even
when we head families, as increasingly we do, brings home fifty­
three to fifty-nine cents to the average male dollar. Even adjusted for
education and years worked, women make less.6 How does Mrs.
Schlafly explain this?
Marriage is women's destiny, a destiny she defends and seeks to
extend. Now, three of five marriages end in divorce after about five
years, leaving the woman with approximately one child, approxi­
mately no income, and a standard of living drastically below that of
her former husband.? Who among us can afford Mrs. Schlafly's
"choice" of exclusive horne and motherhood? The privileged few,
mostly white and upper-class women. Why doesn't she demand a
wage for the housework she vaunts-and with it social security, pen­
sion rights, and disability insurance for her work, not his. Every right
she seeks for homemakers is based on the man's work, not the wom­
an's. Doesn't she know that housework is work? The government
doesn't have to pay for it: private business or families can.
In this context, it is instructive to ask: What is woman's best eco­
nomic option? In 1981, the average streetwalker in Manhattan earned
between $500 and $1,000 a week.8 Aside from modeling (with which
it has much in common), hooking is the only job for which women

24
 Not by Law Alone

as a group are paid more than men. Check that out in terms of what
we are valued for. A recent study shows that the only difference be­
tween hookers and other women with similar class background is
that the prostitutes earn twice as much. 9 Thirteen percent of us are
or have been prostitutes. 10 She can "reject" it it she wants. But instead
of calling us immoral, why doesn't Mrs. Schlafly target the conditions
that make prostitution fundamental to women's social status?
Now consider how similar the condition of prostitutes is not only
to that of women who make a more permanent sex-for-survival ex­
change, but to those of us who must make it daily. Sexual harassment
on the job amounts to that, except we have to do all that other work
too. A study of the federal workplace found that 42 percent of all
female employees reported being sexually harassed in the preceding
two years, 1 7 percent severely. n Mrs. Schlafly tells us that virtuous
women, with rare exceptions, are seldom harassed. In the federal
workplace study alone, the women reporting sexual harassment
make a group the size of Denver, Colorado. Does she think we ask
for rape too?
While all this goes on, poor women suffer botched abortions, and
Mrs. Schlafly works to return us to the days before 1973 when illegal
abortion was the leading cause of maternal death and mutilation.
None of us can afford this risk, but it is disproportionately borne by
women of color. In New York in 1970, half of the women who died
from abortion-related causes were Black; 44 percent were Puerto Ri­
can.12 Mrs. Schlafly works to make abortion once again criminal, or
as burdened a choice as it can be made, without in any way empow­
ering women to refuse forced sex. Why doesn' t she ask whether
women really have power over the sex act when she blames us for
getting pregnant? What is her position on contraception? What is she
doing to make abortion unnecessary?
The feminist view of women's situation comes to this: across time
and space, there is too much variance in women's status, role, and
treatment for it to be biological, and too little variance for it to indi­
vidual. In this view, women and men appear biologically more alike
and socially more different than is generally supposed. Our social
treatment certainly is different-the difference between power and
powerlessness. Woman's commonality, which includes our diversity,
comes from our shared social position. This is our explanation of our
situation. I want to know: does Mrs. Schlafly think rape, battery,
prostitution, incest, sexual harassment, unequal pay, and forced ma­
ternity express, to use her phrase, "the differences reasonable people

25
Approaches

wish to make" between women and men? Are they sex differences?
If not, how does she explain them?
Feminists are the first to take women's situation seriously from
women's standpoint. We have exposed the outrages of forced sex and
forced motherhood. Women respond to feminism: before, I thought
it was my fault. Mrs. Schlafly says, it is your fault. Women respond
to feminism: before, I thought I was alone. Mrs. Schlafly says, you
are alone.
Now I want to consider with you the role of the law in the future
of women's rights. The law alone cannot change our social condition.
It can help. So far, it has helped remarkably little. The way the crime
of rape is defined and what we have to prove to be believed do not
fit our experience of the injury. The reality is that not only married
women, but also women men know or live with, can be raped at will.
Men know this. Rape is not illegal, it is regulated. When a man as­
saults his wife, it is still seen as a domestic squabble, as permissible;
when she fights back, it is a crime. On the other hand, it has been
empowering to women that sexual harassment has become illegal. It
has meant that a woman who resists a man's incursions knows she
is not alone, that someone besides her thinks that access to her body
is not automatically his right. The law has also helped women not to
be considered criminals when we need to end a pregnancy. We pun­
ish ourselves enough.
I see the ERA in this context. The law-like the hunt, warfare, and
religion-has been a male sphere. The values and qualities of these
pursuits have defined both the male role and public life. They have
defined what power means.
The feminist question for the future of women's rights is: if we ac­
quire and use these forms of power, including economics (the mod­
ern equivalent of the hunt), the use of physical force (of which war
is a form), and the tools of law (the secular religion), will we use them
differently? Will we use them as women, for all women? The final
issue is not whether biological males or females hold positions of
power, although women must be there. The issue is: what are our
identifications? what are our loyalties? to whom are we accountable?
Women who oppose the ERA see it as making them neutered "per­
sons" yet fear they will be treated as women. This is not an illusory
fear. Women say to the state: we do not trust you to give as much as
you take. Feminists concur. But opposing the ERA on this basis plays
on these fears without confronting the fact that it is an unequal so-

26
 Not by Law Alone

ciety-a society that the ERA in women's hands could improve­

which makes these fears rational. I am for the ERA. I think it is pro­
gressive if not transformative. It is one of many small initiatives we
can use. Whenever I hear the right attack it, I am more for it than I
was before, because they think it will be so far-reaching. The reality­
and I do not concede that the ERA is dead-is more modest. It would
give women a place in the Constitution, strengthen some gains we
have made, and provide one basis for going further.
Two of the right's favorite problems with ERA are the draft and gay
marriages. ERA would probably compel the military to be gender­
neutral on some level. I am against involuntary conscription. I think
if a war is truly called for, people will mobilize. I also think a male­
only draft is profoundly anti male. Every man drafted would have a
50 percent chance of not being if women were. The male-only draft
discriminates against men. It is also profoundly inconsistent for Mrs.
Schlafly to be involved in defense policy while maintaining that
women have no place in the military. We have had enough of policies
made by people who are categorically exempt from the personal con­
sequences of those policies. As to the civilian effects of the military,
it trains men in violence. Battered women complain that their hus­
bands learned abusive skills in the military. Don't they want us to
learn to kill?
On the issue of gay marriages, I doubt the ERA would be inter­
preted to legalize them, although I would not be against that. Most
marriages would continue to be heterosexual; persons secure in their
heterosexuality would not be threatened by the availability of this
option. I do wonder, though, why gay men and lesbians would want
marriage, even as feminists are exposing some of its problems as a
social institution. I understand the desire to legitimate unions, and
the legal consequences are not minimal. I do think it might do some­
thing amazing to the entire institution of marriage to recognize the
unity of two "persons" between whom no superiority or inferiority
could be presumed on the basis of gender.
I am clear that everything women need will not be accomplished
by the ERA, and not by law alone. To have a future, women's rights
will have to mean an end to pornography-not its containment or
suppression or regulation, but an end to the demand for eroticizing
women's degradation. I mean a world in which men are no longer
turned on by putting women down. I would like Mrs. Schlafly to
address herself to the question: why do they want it? Until the day

27
Approaches

women's bodies are not used to sell cars, cosmetics are not a necessity
to the success of a woman's image, and we are not humiliated and
tortured for male pleasure, women will have no rights.
The ERA is most positive when we remember what it is part of,
when we remember what it would be like to have rights worth hav­
ing. Not only to be allowed to play with the boys, but to question
why the point and ethic of sports is competition. Not just to be taken
seriously, but to ask why the definition of merit is membership in an
elite. Not only to survive, with dignity and sexuality intact, but to be
able to measure achievement in other than dollars and to inhabit our
bodies and express our sexuality in ways that are not scripted out of
scraps of stereotype. We want not only to be able to defend ourselves,
but not to have to, every minute of every day, and to change the
conditions that have made the test of strength not whether one can
bring forth life, but whether one can end it.
So that we remember where we are going-and, in Monique Wit­
tig's words, "failing that, invent,"13 I propose we ponder a further
step. I call it the women's rights amendment. It reads: the subordi­
nation of women to men is hereby abolished .

Look: Women resent the society that defines rape as something other
than a violation of us, that does not believe us when we protest that
violation, that looks to make it all right by asking whether we de­
served it or desired it or enjoyed it. We resent the society that protects
pornography as freedom of speech without considering that it also
terrorizes and silences women, or, as the right would have it, the
society that imagines suppressing pornography without addressing
why men want it, while defending the social relations that require it.
This is a society that turns away from the beating of women in the
home, which it calls a haven, and affirms the family to which battery
is endemic. It resists paying women for housework, the work most
of us do, saying our reward is commendation and appreciation. We
would like to be able to eat that. It resists equal jobs for us, and equal
pay when we do the same or comparable work, yet refuses to see that
our so-called options are connected: work for nothing at home, little
in the marketplace, a little more (at least for a while) in the street. We
resent having motherhood forced on us by unwanted sex, being de­
prived of or discouraged from using contraception, having guilt or
poverty keep us from abortions, and then being saddled with the
entire care of children-alone. We want to be able to want our chil-

28
 Not by Law Alone

dren. We resent being blamed for what men do to us, being told we
provoked it when we are raped or sexually harassed, living in con­
stant fear if we face the fact that it could happen to us at any minute,
becoming willing, being shrunk to the size of a life trying just not to
be next on the list of victims, knowing that most men could probably,
statistically, get away with it. We have had enough of the glorification
of this heterosexuality, this erotization of dominance and submis­
sion,14 while woman-centered sexual expression is denied and stig­
matized.
I would like to return to the issue of who speaks for women and
ask a feminist question to answer it. How do our lives express our
analysis? Mrs. Schlafly tells us that being a woman has not gotten in
her way. That she knows what she is saying because it happened to
her. She could be one of the exceptional 7.8 percent, although who's
to know? I do submit to you, though, that any man who had a law
degree and had done graduate work in political science; had given
testimony on a wide range of important subjects for decades; had
done effective and brilliant political, policy, and organizational work
within the party; had published widely, including nine books; was
instrumental in stopping a major social initiative to amend the Con­
stitution just short of victory dead in its tracks; and had a beautiful,
accomplished family-any man like that would have a place in the
current administration. Having raised six children, a qualification not
many men can boast of (and if so probably with less good reason)
did not make the difference. I would accept correction if I am wrong,
and she may yet be appointed. She was widely reported to have
wanted such a post, but I don't believe everything I read, especially
about women. She certainly deserved a place in the Defense Depart­
ment. Phyllis Schlafly is a qualified woman.
I charge that the Reagan administration has discriminated against
Phyllis Schlafly on the basis of her sex. Not that she's "running with
the wrong crowd"-her phrase for women whom men victimize. She
has been excluded by the image that women are unfit for the things
she is good at, rejected by the men she helped put in power, unfairly
presented as shrewish and uncongenial and odd and cold by the
press. But like many women, although on a grander scale than most,
and taking many of us with her, she has also been enlisted as a par­
ticipant in her own exclusion. She has actively furthered the image
of women as properly outside of official power, as at best volunteers,
a role she continues to play-although notice she had to leave home
to defend its primacy to her as a woman-so that now she has no

29
Approaches

explanation for her exclusion other than her own less than totally
"positive woman" attitude.
For it is the values of the traditionally male spheres that define the
underlying continui� the central coherence, the guiding preoccu­
pations of Mrs. Schlafly's life: the hunt-material success individu­
ally, economic policy on the political level; warfare-triumph in com­
petition in her personal life, defense policy on the national level;
religion and morality-the virtues of motherhood and family life,
and the pursuit of traditional social values on the level of social de­
sign, as in her opposition to abortion, and her career in law, the sec­
ular religion.
Before she decided that feminists create the problems we fight,
back in 1967, she knew sexism when she encountered it. When she
was attacked for having six children as a disqualification for a party
post, she placed a cartoon in her book Safe-Not Sorry showing a door
labeled "Republican Party Headquarters," with a sign reading "Con­
servatives and Women Please Use Servants' Entrance." Now the con­
servatives are in. Are women still to use the back door?
I am not saying that her finger near the nuclear trigger would make
me feel particularly safe-just that by the standards set by the men
in the job, she should be there. I privately believe she has been triv­
ialized by her association with women's issues. I'm saying her anal­
ysis of her own experience is wrong. Their foot is on her neck, too,
and I, for one, am willing to give her this chance to change her mind.

How do you know when a group is on the bottom? It may be some

indication when they can be assaulted, and authorities ignore them;
physically abused, and people turn away or find it entertaining; eco­
nomically deprived, and it is seen as all they are worth; made the
object of jokes, and few ask what makes the jokes funny; imaged as
animallike, confined to a narrow range of tasks and functions, and
told it is all harmless or inevitable and even for their benefit as well
as the best they can expect, given what they are. These are all true
for women. In addition, we are excluded from inner circles and then
rejected because we don't know the inside story; told we can't think
and had our thoughts appropriated for the advancement of others;
told the pedestal is real and called ungrateful and lacking in initiative
when we call it a cage; and blamed for creating our conditions when
we resist them. When a few of us overcome all this, we are told we
show there are no barriers there and are used as examples to put

30
 Not by Law Alone

other women down. She made it-why can't you? We are used as
tokens while every problem we share is treated as a special case.
"Look around you," as Mrs. Schlafly says. If the fact that women
are physically less able than men is proven by our comparative ab­
sence in physically demanding roles, why isn't the fact that women
are not as smart as men proven by our comparative lack of presence
in tenured faculties, Congress, the courts, executive boardrooms,
university presidencies, editorships of newspapers and publishing
houses? 15 Why don't the few women who achieve athletically prove
that any woman can, just as Mrs. Schlafly tells you the tokens in the
roles I have mentioned prove that we are all capable of such achieve­
ments, if only we would try? She says, any woman can. I say, all
women can't so long as those who make it are the privileged few. The
feminist question is not whether you, as an individual woman, can
escape women's place, but whether it is socially necessary that there
will always be somebody in the position you, however temporarily,
escaped from and that someone will be a woman. You can't claim to speak
for 53 percent of the population and support changes for a few.
Let's return to the question of personhood and rights. Women of
the right know that women are socially not persons. Either they ac­
quiesce in this or are fearful of embracing the illusory image of life as
"person," knowing they will still be treated as women. No wonder they
want protection. But male supremacy is a protection racket. It keeps
you dependent on the very people who brutalize you so you will
keep needing their protection. Feminists know that protection pro­
duces the need for more protection--and no rights of your own. 16
I have often wanted to ask Mrs. Schlafly: why are you so afraid of
our freedom? Now I am beginning to see that if you assume, as she
does, that sex inequality is inalterable, freedom looks like open sea­
son on women. We deserve better, and we will have it. I personally
promise you, Mrs. Schlafly, that the only question for the future of
women's rights, as with the ERA, is not whether but when. 17

31
two

Difference and Dominance:

On Sex Discrimination
(1984)

W
hat is a gender question a question of? What is an inequal­
ity question a question of? These two questions underlie
applications of the equality principle to issues of gender,
but they are seldom explicitly asked. I think it speaks to the way
gender has structured thought and perception that mainstream legal
and moral theory tacitly gives the same answer to them both: these
are questions of sameness and difference. The mainstream doctrine
of the law of sex discrimination that results is, in my view, largely
responsible for the fact that sex equality law has been so utterly in­
effective at getting women what we need and are socially prevented
from having on the basis of a condition of birth: a chance at produc­
tive lives of reasonable physical security, self-expression, individua­
tion, and minimal respect and dignity. Here I expose the sameness/
difference theory of sex equality, briefly show how it dominates sex
discrimination law and policy and underlies its discontents, and pro­
pose an alternative that might do something.

According to the approach to sex equality that has dominated poli­

tics, law, and social perception, equality is an equivalence, not a dis­
tinction, and sex is a distinction. The legal mandate of equal treat­
ment-which is both a systemic norm and a specific legal doctrine­
becomes a matter of treating likes alike and unlikes unlike; and the
sexes are defined as such by their mutual unlikeness. Put another
way, gender is socially constructed as difference epistemologically;

The most memorable occasions on which I delivered a version of this speech were:
Harvard Law School, Cambridge, Massachusetts, Oct. 24, 1984; Conference on the
Moral Foundations of Civil Rights Policy, Center for Philosophy and Public Policy, Uni­
versity of Maryland, College Park, Maryland, Oct. 19, 1984; and the James McCormick
Mitchell Lecture, State University of Buffalo Law School, Buffalo, New York, Oct. 19,
1984. I thank the students of Harvard Law School for their response to so many of my
initial thoughts.

32
 Difference and Dominance

sex discrimination law bounds gender equality by difference doctrin­

ally. A built-in tension exists between this concept of equality; which
presupposes sameness, and this concept of sex, which presupposes
difference. Sex equality thus becomes a contradiction in terms, some­
thing of an oxymoron, which may suggest why we are having such
a difficult time getting it.
Upon further scrutiny; two alternate paths to equality for women
emerge within this dominant approach, paths that roughly follow the
lines of this tension. The leading one is: be the same as men. This
path is termed gender neutrality doctrinally and the single standard
philosophically. It is testimony to how substance gets itself up as form
in law that this rule is considered formal equality. Because this ap­
proach mirrors the ideology of the social world, it is considered ab­
stract, meaning transparent of substance; also for this reason it is con­
sidered not only to be the standard, but a standard at all. It is so far
the leading rule that the words "equal to" are code for, equivalent to,
the words "the same as"-referent for both unspecified.
To women who want equality yet find that you are different, the
doctrine provides an alternate route: be different from men. This
equal recognition of difference is termed the special benefit rule or
special protection rule legally, the double standard philosophically. It
is in rather bad odor. Like pregnancy; which always calls it up, it is
something of a doctrinal embarrassment. Considered an exception to
true equality and not really a rule of law at all, this is the one place
where the law of sex discrimination admits it is recognizing some­
thing substantive. Together with the Bona Fide Occupational Quali­
fication (BFOQ), the unique physical characteristic exception under
ERA policy, compensatory legislation, and sex-conscious relief in par­
ticular litigation, affirmative action is thought to live here.1
The philosophy underlying the difference approach is that sex is a
difference, a division, a distinction, beneath which lies a stratum of
human commonality; sameness. The moral thrust of the sameness
branch of the doctrine is to make normative rules conform to this
empirical reality by granting women access to what men have access
to: to the extent that women are no different from men, we deserve
what they have. The differences branch, which is generally seen as
patronizing but necessary to avoid absurdity; exists to value or com­
pensate women for what we are or have become distinctively as
women (by which is meant, unlike men) under existing conditions.
My concern is not with which of these paths to sex equality is pref­
erable in the long run or more appropriate to any particular issue,

33
Approaches

although most discourse on sex discrimination revolves about these

questions as if that were all there is. My point is logically prior: to
treat issues of sex equality as issues of sameness and difference is to
take a particular approach. I call this the difference approach because it
is obsessed with the sex difference . The main theme in the fugue is
"we're the same, we're the same, we're the same." The counterpoint
theme (in a higher register) is "but we're different, but we're differ­
ent, but we're different." Its underlying story is: on the first day, dif­
ference was; on the second day, a division was created upon it; on
the third day, irrational instances of dominance arose. Division may
be rational or irrational. Dominance either seems or is justified. Dif­
ference is.
There is a politics to this. Concealed is the substantive way in
which man has become the measure of all things. Under the same­
ness standard, women are measured according to our correspon­
dence with man, our equality judged by our proximity to his mea­
sure. Under the difference standard, we are measured according to
our lack of correspondence with him, our womanhood judged by our
distance from his measure. Gender neutrality is thus simply the male
standard, and the special protection rule is simply the female stan­
dard, but do not be deceived: masculinity, or maleness, is the referent
for both. Think about it like those anatomy models in medical school.
A male body is the human body; all those extra things women have
are studied in ob/gyn. It truly is a situation in which more is less.
Approaching sex discrimination in this way-as if sex questions are
difference questions and equality questions are sameness ques­
tions-provides two ways for the law to hold women to a male stan­
dard and call that sex equality.

Having been very hard on the difference answer to sex equality ques­
tions, I should say that it takes up a very important problem: how to
get women access to everything we have been excluded from, while
also valuing everything that women are or have been allowed to be­
come or have developed as a consequence of our struggle either not
to be excluded from most of life's pursuits or to be taken seriously
under the terms that have been permitted to be our terms. It negoti­
ates what we have managed in relation to men. Legally articulated as
the need to conform normative standards to existing reality, the
strongest doctrinal expression of its sameness idea would prohibit
taking gender into account in any way.

34
 Difference and Dominance

Its guiding impulse is: we're as good as you. Anything you can do,
we can do. Just get out of the way. I have to confess a sincere affection
for this approach. It has gotten women some access to employment2
and education,3 the public pursuits, including academic,4 profes­
sional,5 and blue-collar work;6 the military;? and more than nominal
access to athletics. 8 It has moved to change the dead ends that were
all we were seen as good for and has altered what passed for women's
lack of physical training, which was really serious training in passiv­
ity and enforced weakness. It makes you want to cry sometimes to
know that it has had to be a mission for many women just to be
permitted to do the work of this society, to have the dignity of doing
jobs a lot of other people don't even want to do.
The issue of including women in the military draft9 has presented
the sameness answer to the sex equality question in all its simple
dignity and complex equivocality. As a citizen, I should have to risk
being killed just like you. The consequences of my resistance to this
risk should count like yours. The undercurrent is: what's the matter,
don't you want me to learn to kill . . . just like you? Sometimes I see
this as a dialogue between women in the afterlife. The feminist says
to the soldier, "we fought for your equality." The soldier says to the
feminist, "oh, no, we fought for your equality."
Feminists have this nasty habit of counting bodies and refusing not
to notice their gender. As applied, the sameness standard has mostly
gotten men the benefit of those few things women have historically
had-for all the good they did us. Almost every sex discrimination
case that has been won at the Supreme Court level has been brought
by a man. 10 Under the rule of gender neutrality, the law of custody
and divorce has been transformed, giving men an equal chance at
custody of children and at alimony. 11 Men often look like better "par­
ents" under gender-neutral rules like level of income and presence
of nuclear family, because men make more money and (as they say)
initiate the building of family units.12 In effect, they get preferred be­
cause society advantages them before they get into court, and law is
prohibited from taking that preference into account because that
would mean taking gender into account. The group realities that
make women more in need of alimony are not permitted to matter,
because only individual factors, gender-neutrally considered, may
matter. So the fact that women will live their lives, as individuals, as
members of the group women, with women's chances in a sex­
discriminatory society, may not count, or else it is sex discrimination.
The equality principle in this guise mobilizes the idea that the way to

35
Approaches

get things for women is to get them for men. Men have gotten them.
Have women? We still have not got equal pay, 13 or equal work, 14 far
less equal pay for equal work,15 and we are close to losing separate
enclaves like women's schools through this approach.16
Here is why. In reality, which this approach is not long on because
it is liberal idealism talking to itself, virtually every quality that dis­
tinguishes men from women is already affirmatively compensated in
this society. Men's physiology defines most sports,17 their needs de­
fine auto and health insurance coverage, their socially designed bi­
ographies define workplace expectations and successful career pat­
terns, their perspectives and concerns define quality in scholarship,
their experiences and obsessions define merit, their objectification of
life defines art, their military service defines citizenship, their pres­
ence defines family, their inability to get along with each other-their
wars and rulerships-defines history, their image defines god, and
their genitals define sex. For each of their differences from women,
what amounts to an affirmative action plan is in effect, otherwise
known as the structure and values of American society. But whenever
women are, by this standard, "different" from men and insist on not
having it held against us, whenever a difference is used to keep us
second class and we refuse to smile about it, equality law has a par­
adigm trauma and it's crisis time for the doctrine.
What this doctrine has apparently meant by sex inequality is not
what happens to us. The law of sex discrimination that has resulted
seems to be looking only for those ways women are kept down that
have not wrapped themselves up as a difference-whether original,
imposed, or imagined. Start with original: what to do about the fact
that women actually have an ability men still lack, gestating children
in utero. Pregnancy therefore is a difference. Difference doctrine says
it is sex discrimination to give women what we need, because only
women need it. It is not sex discrimination not to give women what
we need because then only women will not get what we need. 18 Move
into imposed: what to do about the fact that most women are segre­
gated into low-paying jobs where there are no men. Suspecting that
the structure of the marketplace will be entirely subverted if compa­
rable worth is put into effect, difference doctrine says that because
there is no man to set a standard from which women's treatment is a
deviation, there is no sex discrimination here, only sex difference.
Never mind that there is no man to compare with because no man
would do that job if he had a choice, and of course he has because
he is a man, so he won't.19

36
 Difference and Dominance

Now move into the so-called subtle reaches of the imposed cate­
gory, the de facto area. Most jobs in fact require that the person, gen­
der neutral, who is qualified for them will be someone who is not the
primary caretaker of a preschool child.20 Pointing out that this raises
a concern of sex in a society in which women are expected to care for
the children is taken as day one of taking gender into account in the
structuring of jobs. To do that would violate the rule against not no­
ticing situated differences based on gender, so it never emerges that
day one of taking gender into account was the day the job was struc­
tured with the expectation that its occupant would have no child care
responsibilities. Imaginary sex differences-such as between male
and female applicants to administer estates or between males aging
and dying and females aging and dying21-I will concede, the doc­
trine can handle.
I will also concede that there are many differences between women
and men. I mean, can you imagine elevating one half of a population
and denigrating the other half and producing a population in which
everyone is the same? What the sameness standard fails to notice is
that men's differences from women are equal to women's differences
from men. There is an equality there. Yet the sexes are not socially
equal. The difference approach misses the fact that hierarchy of
power produces real as well as fantasied differences, differences that
are also inequalities. What is missing in the difference approach is
what Aristotle missed in his empiricist notion that equality means
treating likes alike and unlikes unlike, and nobody has questioned it
since. Why should you have to be the same as a man to get what a
man gets simply because he is one? Why does maleness provide an
original entitlement, not questioned on the basis of its gender, so that
it is women-women who want to make a case of unequal treatment
in a world men have made in their image (this is really the part Ar­
istotle missed)-who have to show in effect that they are men in
every relevant respect, unfortunately mistaken for women on the ba­
sis of an accident of birth?
The women that gender neutrality benefits, and there are some,
show the suppositions of this approach in highest relief. They are
mostly women who have been able to construct a biography that
somewhat approximates the male norm, at least on paper. They are
the qualified, the least of sex discrimination's victims. When they are
denied a man's chance, it looks the most like sex bias. The more un­
equal society gets, the fewer such women are permitted to exist.
Therefore, the more unequal society gets, the less likely the difference

37
Approaches

doctrine is to be able to do anything about it, because unequal power

creates both the appearance and the reality of sex differences along
the same lines as it creates its sex inequalities.
The special benefits side of the difference approach has not com­
pensated for the differential of being second class. The special bene­
fits rule is the only place in mainstream equality doctrine where you
get to identify as a woman and not have that mean giving up all claim
to equal treatment-but it comes close. Under its double standard,
women who stand to inherit something when their husbands die
have gotten the exclusion of a small percentage of the inheritance tax,
to the tune of Justice Douglas waxing eloquent about the difficulties
of all women's economic situation.22 If we're going to be stigmatized
as different, it would be nice if the compensation would fit the dis­
parity. Women have also gotten three more years than men get before
we have to be advanced or kicked out of the military hierarchy, as
compensation for being precluded from combat, the usual way to
advance.23 Women have also gotten excluded from contact jobs in
male-only prisons because we might get raped, the Court taking the
viewpoint of the reasonable rapist on women's employment oppor­
tunities.24 We also get protected out of jobs because of our fertility.
The reason is that the job has health hazards, and somebody who
might be a real person some day and therefore could sue-that is, a
fetus-might be hurt if women, who apparently are not real persons
and therefore can't sue either for the hazard to our health or for the
lost employment opportunity, are given jobs that subject our bodies
to possible harm.25 Excluding women is always an option if equality
feels in tension with the pursuit itself. They never seem to think of
excluding men. Take combat.26 Somehow it takes the glory out of the
foxhole, the buddiness out of the trenches, to imagine us out there.
You get the feeling they might rather end the draft, they might even
rather not fight wars at all than have to do it with us.
The double standard of these rules doesn't give women the dignity
of the single standard; it also does not (as the differences standard
does) suppress the gender of its referent, which is, of course, the
female gender. I must also confess some affection for this standard.
The work of Carol Gilligan on gender differences in moral reasoning27
gives it a lot of dignity, more than it has ever had, more, frankly, than
I thought it ever could have. But she achieves for moral reasoning
what the special protection rule achieves in law: the affirmative rather
than the negative valuation of that which has accurately distin-

38
 Difference and Dominance

guished women from men, by making it seem as though those attri­

butes, with their consequences, really are somehow ours, rather than
what male supremacy has attributed to us for its own use. For women
to affirm difference, when difference means dominance, as it does
with gender, means to affirm the qualities and characteristics of pow­
erlessness.
Women have done good things, and it is a good thing to affirm
them. I think quilts are art. I think women have a history. I think we
create culture. I also know that we have not only been excluded from
making what has been considered art; our artifacts have been ex­
cluded from setting the standards by which art is art. Women have a
history all right, but it is a history both of what was and of what was
not allowed to be. So I am critical of affirming what we have been,
which necessarily is what we have been permitted, as if it is women's,
ours, possessive. As if equality, in spite of everything, already in­
eluctably exists.
I am getting hard on this and am about to get harder on it. I do not
think that the way women reason morally is morality "in a different
voice."28 I think it is morality in a higher register, in the feminine
voice. Women value care because men have valued us according to
the care we give them, and we could probably use some. Women
think in relational terms because our existence is defined in relation
to men. Further, when you are powerless, you don't just speak dif­
ferently. A lot, you don't speak. Your speech is not just differently
articulated, it is silenced. Eliminated, gone. You aren't just deprived
of a language with which to articulate your distinctiveness, although
you are; you are deprived of a life out of which articulation might
come. Not being heard is not just a function of lack of recognition,
not just that no one knows how to listen to you, although it is that;
it is also silence of the deep kind, the silence of being prevented from
having anything to say. Sometimes it is permanent. All I am saying
is that the damage of sexism is real, and reifying that into differences
is an insult to our possibilities.
So long as these issues are framed this way, demands for equality
will always appear to be asking to have it both ways: the same when
we are the same, different when we are different. But this is the way
men have it: equal and different too. They have it the same as women
when they are the same and want it, and different from women when
they are different and want to be, which usually they do. Equal and
different too would only be parity.29 But under male supremacy, while

39
Approaches

being told we get it both ways, both the specialness of the pedestal
and an even chance at the race, the ability to be a woman and a per­
son, too, few women get much benefit of either.

There is an alternative approach, one that threads its way through

existing law and expresses, I think, the reason equality law exists in
the first place. It provides a second answer, a dissident answer in law
and philosophy, to both the equality question and the gender ques­
tion. In this approach, an equality question is a question of the dis­
tribution of power. Gender is also a question of power, specifically of
male supremacy and female subordination. The question of equality,
from the standpoint of what it is going to take to get it, is at root a
question of hierarchy, which-as power succeeds in constructing so­
cial perception and social reality-derivatively becomes a categorical
distinction, a difference. Here, on the first day that matters, domi­
nance was achieved, probably by force . By the second day, division
along the same lines had to be relatively firmly in place. On the third
day, if not sooner, differences were demarcated, together with social
systems to exaggerate them in perception and in fact, because the sys­
tematically differential delivery of benefits and deprivations required
making no mistake about who was who. Comparatively speaking,
man has been resting ever since. Gender might not even code as dif­
ference, might not mean distinction epistemologically, were it not for
its consequences for social power.
I call this the dominance approach, and it is the ground I have been
standing on in criticizing mainstream law. The goal of this dissident
approach is not to make legal categories trace and trap the way things
are. It is not to make rules that fit reality. It is critical of reality. Its task
is not to formulate abstract standards that will produce determinate
outcomes in particular cases. Its project is more substantive, more
jurisprudential than formulaic, which is why it is difficult for the
mainstream discourse to dignify it as an approach to doctrine or to
imagine it as a rule of law at all. It proposes to expose that which
women have had little choice but to be confined to, in order to
change it.
The dominance approach centers on the most sex-differential
abuses of women as a gender, abuses that sex equality law in its dif­
ference garb could not confront. It is based on a reality about which
little of a systematic nature was known before 1970, a reality that calls
for a new conception of the problem of sex inequality. This new in-

40
 Difference and Dominance

formation includes not only the extent and intractability of sex seg­
regation into poverty, which has been known before, but the range
of issues termed violence against women, which has not been. It
combines women's material desperation, through being relegated to
categories of jobs that pay nil, with the massive amount of rape and
attempted rape-44 percent of all women-about which virtually
nothing is done;30 the sexual assault of children-38 percent of girls
and 10 percent of boys-which is apparently endemic to the patriar­
chal family;31 the battery of women that is systematic in one quarter
to one third of our homes;32 prostitution, women's fundamental eco­
nomic condition, what we do when all else fails, and for many
women in this country, all else fails often;33 and pornography, an in­
dustry that traffics in female flesh, making sex inequality into sex to
the tune of eight billion dollars a year in profits largely to organized
crime.34
These experiences have been silenced out of the difference defini­
tion of sex equality largely because they happen almost exclusively
to women. Understand: for this reason, they are considered not to
raise sex equality issues. Because this treatment is done almost
uniquely to women, it is implicitly treated as a difference, the sex
difference, when in fact it is the socially situated subjection of
women. The whole point of women's social relegation to inferiority
as a gender is that for t'ne most part these things aren't done to men.
Men are not paid half of what women are paid for doing the same
work on the basis of their equal difference. Everything they touch
does not turn valueless because they touched it. When they are hit,
a person has been assaulted. When they are sexually violated, it is
not simply tolerated or found entertaining or defended as the nec­
essary structure of the family, the price of civilization, or a constitu­
tional right.
Does this differential describe the sex difference? Maybe so. It does
describe the systematic relegation of an entire group of people to a
condition of inferiority and attribute it to their nature. If this differ­
ential were biological, maybe biological intervention would have to
be considered. If it were evolutionary, perhaps men would have to
evolve differently. Because I think it is political, I think its politics
construct the deep structure of society. Men who do not rape women
have nothing wrong with their hormones. Men who are made sick
by pornography and do not eroticize their revulsion are not under­
evolved. This social status in which we can be used and abused and
trivialized and humiliated and bought and sold and passed around

41
Approaches

and patted on the head and put in place and told to smile so that we
look as though we're enjoying it all is not what some of us have in
mind as sex equality.
This second approach-which is not abstract, which is at odds
with socially imposed reality and therefore does not look like a stan­
dard according to the standard for standards-became the implicit
model for racial justice applied by the courts during the sixties. It has
since eroded with the erosion of judicial commitment to racial equal­
ity. It was based on the realization that the condition of Blacks in
particular was not fundamentally a matter of rational or irrational
differentiation on the basis of race but was fundamentally a matter of
white supremacy, under which racial differences became invidious as
a consequence.35 To consider gender in this way, observe again that
men are as different from women as women are from men, but so­
cially the sexes are not equally powerful. To be on the top of a hier­
archy is certainly different from being on the bottom, but that is an
obfuscatingly neutralized way of putting it, as a hierarchy is a great
deal more than that. If gender were merely a question of difference,
sex inequality would be a problem of mere sexism, of mistaken dif­
ferentiation, of inaccurate categorization of individuals. This is what
the difference approach thinks it is and is therefore sensitive to. But
if gender is an inequality first, constructed as a socially relevant dif­
ferentiation in order to keep that inequality in place, then sex in­
equality questions are questions of systematic dominance, of male
supremacy, which is not at all abstract and is anything but a mistake.
If differentiation into classifications, in itself, is discrimination, as
it is in difference doctrine, the use of law to change group-based so­
cial inequalities becomes problematic, even contradictory. This is be­
cause the group whose situation is to be changed must necessarily
be legally identified and delineated, yet to do so is considered in fun­
damental tension with the guarantee against legally sanctioned in­
equality. If differentiation is discrimination, affirmative action, and
any legal change in social inequality, is discrimination-but the ex­
isting social differentiations which constitute the inequality are not?
This is only to say that, in the view that equates differentiation with
discrimination, changing an unequal status quo is discrimination, but
allowing it to exist is not.
Looking at the difference approach and the dominance approach
from each other's point of view clarifies some otherwise confusing
tensions in sex equality debates. From the point of view of the dom­
inance approach, it becomes clear that the difference approach adopts

42
 Difference and Dominance

the point of view of male supremacy on the status of the sexes.

Simply by treating the status quo as "the standard," it invisibly and
uncritically accepts the arrangements under male supremacy. In this
sense, the difference approach is masculinist, although it can be ex­
pressed in a female voice. The dominance approach, in that it sees
the inequalities of the social world from the standpoint of the sub­
ordination of women to men, is feminist.
If you look through the lens of the difference approach at the world
as the dominance approach imagines it-that is, if you try to see real
inequality through a lens that has difficulty seeing an inequality as
an inequality if it also appears as a difference-you see demands for
change in the distribution of power as demands for special protec­
tion. This is because the only tools that the difference paradigm offers
to comprehend disparity equate the recognition of a gender line with
an admission of lack of entitlement to equality under law. Since equal­
ity questions are primarily confronted in this approach as matters of
empirical fit36-that is, as matters of accurately shaping legal rules
(implicitly modeled on the standard men set) to the way the world is
(also implicitly modeled on the standard men set)-any existing dif­
ferences must be negated to merit equal treatment. For ethnicity as
well as for gender, it is basic to mainstream discrimination doctrine
to preclude any true diversity among equals or true equality within
diversity.
To the difference approach, it further follows that any attempt to
change the way the world actually is looks like a moral question re­
quiring a separate judgment of how things ought to be. This ap­
proach imagines asking the following disinterested question that can
be answered neutrally as to groups: against the weight of empirical
difference, should we treat some as the equals of others, even when
they may not be entitled to it because they are not up to standard?
Because this construction of the problem is part of what the domi­
nance approach unmasks, it does not arise with the dominance ap­
proach, which therefore does not see its own foundations as moral.
If sex inequalities are approached as matters of imposed status,
which are in need of change if a legal mandate of equality means
anything at all, the question whether women should be treated un­
equally means simply whether women should be treated as less.
When it is exposed as a naked power question, there is no separable
question of what ought to be. The only real question is what is and
is not a gender question. Once no amount of difference justifies treat­
ing women as subhuman, eliminating that is what equality law is for.

43
Approaches

In this shift of paradigms, equality propositions become no longer

propositions of good and evil, but of power and powerlessness, no
more disinterested in their origins or neutral in their arrival at con­
clusions than are the problems they address.
There came a time in Black people's movement for equality in this
country when slavery stopped being a question of how it could be
justified and became a question of how it could be ended. Racial dis­
parities surely existed, or racism would have been harmless, but at
that point-a point not yet reached for issues of sex-no amount of
group difference mattered anymore. This is the same point at which
a group's characteristics, including empirical attributes, become con­
stitutive of the fully human, rather than being defined as exceptions
to or as distinct from the fully human. To one-sidedly measure one
group's differences against a standard set by the other incarnates par­
tial standards. The moment when one's particular qualities become
part of the standard by which humanity is measured is a millenia!
moment.
To summarize the argument: seeing sex equality questions as mat­
ters of reasonable or unreasonable classification is part of the way
male dominance is expressed in law. If you follow my shift in per­
spective from gender as difference to gender as dominance, gender
changes from a distinction that is presumptively valid to a detriment
that is presumptively suspect. The difference approach tries to map
reality; the dominance approach tries to challenge and change it. In
the dominance approach, sex discrimination stops being a question
of morality and starts being a question of politics.
You can tell if sameness is your standard for equality if my critique
of hierarchy looks like a request for special protection in disguise. It's
not. It envisions a change that would make possible a simple equal
chance for the first time. To define the reality of sex as difference and
the warrant of equality as sameness is wrong on both counts. Sex, in
nature, is not a bipolarity; it is a continuum. In society it is made into
a bipolarity. Once this is done, to require that one be the same as
those who set the standard-those which one is already socially de­
fined as different from-simply means that sex equality is concep­
tually designed never to be achieved. Those who most need equal
treatment will be the least similar, socially, to those whose situation
sets the standard as against which one's entitlement to be equally
treated is measured . Doctrinally speaking, the deepest problems of
sex inequality will not find women "similarly situated"37 to men. Far
less will practices of sex inequality require that acts be intentionally

44
 Difference and Dominance

discriminatory.38 All that is required is that the status quo be main­

tained. As a strategy for maintaining social power first structure re­
ality unequally, then require that entitlement to alter it be grounded
on a lack of distinction in situation; first structure perception so that
different equals inferior, then require that discrimination be activated
by evil minds who know they are treating equals as less.
I say, give women equal power in social life. Let what we say mat­
ter, then we will discourse on questions of morality. Take your foot
off our necks, then we will hear in what tongue women speak. So
long as sex equality is limited by sex difference, whether you like it
or don't like it, whether you value it or seek to negate it, whether you
stake it out as a grounds for feminism or occupy it as the terrain of
misogyny, women will be born, degraded, and die. We would settle
for that equal protection of the laws under which one would be born,
live, and die, in a country where protection is not a dirty word and
equality is not a special privilege.

45
 three

Desire and Power

(1983)

T
his conference, however broad its inspiration, sophisticated
its conception, competent its organization, and elaborate in
what is called here articulation, is not, I've noticed, princi­
pally set up to maximize conferring. Conferring happens intersti­
tially. Those of us up here do what are called talks; however, we read
them. They are called works in progress; although many of them are
quite "done." You then respond with what are called questions, many
of which are in the form of statements. This event presents itself as
a dialogue but operates through a linear series of speeches. We are
presented as being engaged in a process, when in actuality we are
here to produce a product. We are in a production-consumption
cycle, the product being the book that will come out of all of this. The
silence that constitutes your half of the dialogue makes our half
sound like the sound of one hand clapping. An ominous sound, I
should think, for anyone trained on the left.
In partial, if entirely inadequate, response to these thoughts, I am
going to speak rather than read what I have to say. I gather that it
will still qualify as a text. At the beginning I will draw on parts of my
published work. This will help me be concise in laying out what, I
gather from people's responses to that work, is a fairly dense ground­
ing. Things will become a little more open-textured after that, more
raw than cooked. I am also now requesting that you interject. I will
take your "interruptions" as participation. I've been told that you
can, in fact, be heard without those phallic microphones. I say this
now because I think that once I get going, it's not going to seem all
that clear that there are spaces for you to come in. What I want you
to do is wave or say "Give an example" or "Say that again another
way" or "Come on, what difference does that make?" I mean this.
Audience: It's not all that easy to do.
C.M.: I know. Thank you. Manners are often taken more seriously
than politics. There's a politics to that. I wanted to break into small

This talk was delivered at the Conference on Marxism and the Interpretation of Cul­
ture, University of Illinois at Champaign-Urbana, July 11, 1983.

46
 Desire and Power

groups after Ellen Willis finished her critique, but I was talked out of
it. I will respond to heat on this if you want to do it. I was told that
part of the importance of this conference is to make it accessible to
people who are not able to be here. I was moved by that. Another
way of putting that is that the organizers want our conversations on
tape. If we disperse into small places, that won't happen.
Audience: But it won't be the same conversation.
C.M.: That's true; it won't at all. To help in that direction, I am
going to attempt, rather than referring to scholarship that has gone
on elsewhere, much of which has been adequately covered by people
speaking before me, to refer instead to remarks people have made
here, as examples for my theoretical points. This conference is an
experience I think I can rely on most of us having had. I will include
conversations I've had with some of you here, questions you've
asked from the floor, and things that have been said from this stage.
I will be particularly interested to refer to those anonymous among
you who have referred to my work without knowing it was me sitting
at the next table or in the row in front of you. These expository
choices are an attempt to make this more dialogic and open-textured,
even if only marginally so.
One more thing about the politics of this situation and my place in
it. We purport to want to change things, but we talk in ways that no
one understands. We know that discourses have fashions, that we're
in the midst of a certain fashion now, that a few years from now it
will be another, that ten years ago it was different. We know better
than to think that this is the pure onward progress of knowledge. We
participate in these fashions, are swept along in them, but we don't
set them. I'm particularly concerned that in talking fashionably about
complicated realities-and what we have said here is central to real
concerns-we often have highly coded conversations. Not only one­
sided, but coded. What conditions create access to the latest code
book?
Sometimes I think to myself, MacKinnon, you write. Do you re­
member that the majority of the world's illiterates are women? What
are you doing ? I feel that powerfully when I think about what brings
us all here, which is to make the changes we are talking about. When
someone condemns someone else for the use of jargon, they tend to
suppose that they themselves speak plain plate glass. I'm not ex­
empting myself from this criticism, I'm saying that I see it as funda­
mental to developing a politics of language that will be constructive
as well as deconstructive.

47
Approaches

This talk is in three parts. The first is in the form of an argument:

I will state what I take to be feminism. I will take from and converse
around my articles that appeared in Signs. I do take it upon myself
to define feminism. I challenge everyone to do the same. I would like
to open a discourse on what feminism means, rather than on who
we think we are to think that we can define what it means. In other
words, I'd rather talk substance than relative postures of authority. I
undertake this in critical awareness that each of our biographies lim­
its the experience from which we will make such a substantive defi­
nition, knowing that none of us individually has the direct experi­
ence of all women, but that together we do, so that this theory must
be collectively created. We are here to engage that process. Here and
now. This is why the hierarchical structure of this conference is such
a problem. What kind of theory does one create this way?
In the second part I will attempt to unpack and extend some of the
implications from the initial, compressed declarative argument. It
will get more discursive. The implications of the initial argument for
some central concerns in marxist theory, including the aspiration to­
ward a unified theory of social inequality, will be extended and di­
rected principally to questions of method.
I will end with what I take to be some urgent questions on our
agenda. Not that there aren't urgent questions unanswered through­
out, but I want to end with some problems I have not yet adequately
addressed . The posture of authority I take to speak to you comes
because I agree with what I'm saying. Not to shove it down your
throats, but to take responsibility for my position.
The first part. In my view, sexuality is to feminism what work is to
marxism. (Those of you who know my work will recognize this from
the first Signs article.)! By saying that sexuality is to feminism what
work is to marxism, I mean that both sexuality and work focus on
that which is most one's own, that which most makes one the being
the theory addresses, as that which is most taken away by what the
theory criticizes. In each theory you are made who you are by that
which is taken away from you by the social relations the theory crit­
icizes. In marxist theory, we see society fundamentally constructed
of the relations people form as they do and make those things that
are needed to survive humanly. Work is the social process of shaping
and transforming the material and social worlds, the process that cre­
ates people as social beings, as their interactions create value. Work
is that activity by which the theory comprehends people become who
they socially are. Class is the social structure of their work, produc-

48
 Desire and Power

tion is its process, capital is one congealed form. Control is its prin­
cipal issue, that which is contested, that which we care about, the
relations of which Marx wrote to attempt to alter.
A parallel argument is implicit in feminism. In my view-you will
notice that I equate "in my view" with "feminism" -this argument
is that the molding, direction, and expression of sexuality organize
society into two sexes, women and men. This division underlies the
totality of social relations; it is as structural and pervasive as class is
in marxist theory, although of course its structure and quality of per­
vasion are different. Sexuality is the social process that creates, or­
ganizes, expresses, and directs desire. Desire here is parallel to value
in marxist theory, not the same, though it occupies an analagous
theoretical location. It is taken for a natural essence or presocial im­
petus but is actually created by the social relations, the hierarchical
relations, in question. This process creates the social beings we know
as women and men, as their relations create society. Sexuality to fem­
inism is, like work to marxism, socially constructed and at the same
time constructing. It is universal as activity, yet always historically
specific, and jointly comprised of matter and mind. As the organized
expropriation of the work of some for the use of others defines the
class, workers, the organized expropriation of the sexuality of some
for the use of others defines the sex, woman. Heterosexuality is its
predominant structure, gender is its social process, the family is a
congealed form, sex roles are its qualities generalized to two social
personas, and reproduction is a consequence . (Theorists sometimes
forget that in order to reproduce one must first, usually, have had
sex.) Control is also the issue of gender.
In this analysis, both marxism and feminism are theories of power
and of its unequal distribution. They each provide an account of how
a systematically unequal social arrangement (by arrangement I don't
mean to suggest it's equally chosen by all) is internally coherent and
internally rational and pervasive yet unjust. Both theories are total
theories. That is, they are both theories of the totality, of the whole
thing, theories of a fundamental and critical underpinning of the
whole they envision. The problem of the relation between marxism
and feminism then becomes how both can be true at the same time.
As the focus of my attempt to address this issue, I have taken the
relationship between questions of power and questions of knowl­
edge, that is, the relation between the political and the epistemolog­
ical, as each theory conceives it. I will talk about the feminist theory
of power and the feminist theory of knowledge and then move into

49
Approaches

their implications for an array of marxist methodological issues. I will

then say what I think the relationship between marxism and femi­
nism is.
By political, I mean here questions of power. The feminist theory
of power is that sexuality is gendered as gender is sexualized. (This
comes from the second Signs article .)2 In other words, feminism is a
theory of how the erotization of dominance and submission creates
gender, creates woman and man in the social form in which we know
them. Thus the sex difference and the dominance-submission dy­
namic define each other. The erotic is what defines sex as an inequal­
ity, hence as a meaningful difference. This is, in my view, the social
meaning of sexuality and the distinctly feminist account of gender
inequality. The feminist theory of knowledge begins with the theory
of the point of view of all women on social life. It takes as its point of
departure the criticism that the male point of view on social life has
constructed both social life and knowledge about it. In other words,
the feminist theory of knowledge is inextricable from the feminist
critique of male power because the male point of view has forced
itself upon the world, and does force itself upon the world, as its way
of knowing.
An epistemology is an answer to the question, how do you know?
What makes you think you know? Not exactly why should I believe
you, but your account of why your account of reality is a true account.
The content of the feminist theory of knowledge begins with its crit­
icism of the male point of view by criticizing the posture that has
been taken as the stance of "the knower" in Western political
thought. That is the stance Stanley Aronowitz previously referred to,
the neutral posture, which I will be calling objectivity-that is, the
nonsituated, distanced standpoint. I'm claiming that this is the male
standpoint socially, and I'm going to try to say why. I will argue that
the relationship between objectivity as the stance from which the
world is known and the world that is apprehended in this way is the
relationship of objectification. Objectivity is the epistemological
stance of which objectification is the social process, of which male
dominance is the politics, the acted-out social practice. That is, to
look at the world objectively is to objectify it. The act of control, of
which what I have described is the epistemological level, is itself erot­
icized under male supremacy. To say women are sex objects is in this
way redundant. Sexualized objectification is what defines women as
sexual and as women under male supremacy.
I now want to develop some of the implications of this thesis. First,

50
 Desire and Power

what is gender; then, what is sexuality; then, what kind of analysis

this feminism is-in particular, why objectification is specifically
male (that's for David Kennedy). I will digress slightly on the subject
and object question. Then I will talk about the consequences of set­
ting up a theory this way for questions like falsifiability and uncer­
tainty, and the verb "to be" in feminist discourse.
Gender here is a matter of dominance, not difference. Feminists
have noticed that women and men are equally different but not
equally powerful. Explaining the subordination of women to men, a
political condition, has nothing to do with difference in any funda­
mental sense. Consequentially, it has a lot to do with difference, be­
cause the ideology of difference has been so central in its enforce­
ment. Another way to say that is, there would be no such thing as
what we know as the sex difference-much less would it be the social
issue it is or have the social meaning it has-were it not for male
dominance. Sometimes people ask me, "Does that mean you think
there's no difference between women and men?" The only way I
know how to answer that is: of course there is; the difference is that
men have power and women do not. I mean simply that men are not
socially supreme and women subordinate by nature; the fact that so­
cially they are, constructs the sex difference as we know it. I mean to
suggest that the social meaning of difference-in this I include differ­
ance-is gender-based.
For those of you who think this is a lot of rhetoric, I want to specify
the facts I have in reference. When I speak of male dominance, I
mean as its content facts from this culture. The facts have to do with
the rate of rape and attempted rape of American women, which is 44
percent. If you ask a random group of women, "Have you ever been
raped or been the victim of an attempted rape?" and do not include
marital rape, that is the figure.3 Some 4.5 percent of all women are
victims of incest by their fathers, an additional 12 percent by other
male family members, rising to a total of 43 percent of all girls before
they reach the age of eighteen, if sexual abuse within and outside the
family is included. These data, by the way, are predicated on believ­
ing women, which Freud had a problem with. You know that the
theory of the unconscious was devised to explain how women came
to invent experiences of childhood sexual abuse, because Freud did
not believe, finally, that they could have happened? If you ask women
whether they've been sexually harassed in the last two years, about
15 percent report very serious or physical assaults; about 85 percent
of all working women report sexual harassment at some time in their

51
Approaches

working lives. Between a quarter and a third of all women are bat­
tered by men in the family. If you look at homicide data, between 60
percent and 70 percent of murdered women have been killed by a
husband, lover, or ex-lover. The sam� is not true for murdered men.
(Men also kill each other in great numbers.) About 12 percent of
American women are or have been prostitutes. Prostitution, along
with modeling, is the only thing for which women as a group are
reputed to be paid-by men-more than men. But then, most pros­
titutes may never get the money; pimps do. The pornography indus­
try, an exemplary synthesis of the erotization of dominance and sub­
mission with capitalism's profit motive, is put at eight billion dollars
a year, with three to four times as many outlets as McDonald's res­
taurants.4 To conceptualize these data as "the sex difference" ac­
quiesces in and obscures the facts of male power they document and
suggest are systematic.
By the way, I mean the word male as an adjective. The analysis of
sex is social, not biological. This is not to exempt some men or valor­
ize all women; it is to refer to the standpoint from which these acts I
have documented are done, that which makes them invisible, glo­
rious, glamorous, and normal. By male, then, I refer to apologists for
these data; I refer to the approach that is integral to these acts, to the
standard that has normalized these events so that they define mas­
culinity, to the male sex role, and to the way this approach has sub­
merged its gender to become "the" standard. This is what I mean
when I speak of the male perspective or male power. Not all men
have equal access to male power, nor can men ever fully occupy
women's standpoint. If they do, on occasion, they pay for it; and they
can always reclaim male power, which is theirs by default unless con­
sciously disavowed. A woman can also take the male point of view
or exercise male power, although she remains always a woman. Our
access to male power is not automatic as men's is; we're not born and
raised to it. We can aspire to it. Me, for instance, standing up here
talking to you-socially this is an exercise of male power. It's hierar­
chical, it's dominant, it's authoritative. You're listening, I'm talking;
I'm active, you're passive. I'm expressing myself; you're taking notes.
Women are supposed to be seen and not heard.
Audience: Isn't the relationship between mother and child hierar­
chical and dominant?
C.M.: In a way, but not exactly in the same sense. It comes to have
some hierarchical and dominant aspects under male supremacy,

52
 Desire and Power

which also unites women and children in powerlessness. In short, I

disagree with the Chodorow-Dinnerstein analysis5 that the mother/
child relation is an explanation for male dominance. I think it is only
within a context where male power already exists that the relation
between mother and child can be characterized as one in which the
mother is seen as powerful in the sense that the relation becomes one
of horror, anxiety, betrayal, cruelty, and-crucially-eroticism. I
don't think this relation is why male supremacy exists.
Audience: But isn't that the situation we are in-male dominance?
C.M. : It is its reality, yes. But I'm attempting to explain that reality.
The mother/child relation, described as a relation of dominance, is a
consequence of male supremacy, not its causal dynamic. Female
mothering does not explain to me why hierarchy is eroticized or even
why it is gendered. It doesn't explain why girls don't grow up dom­
inating other women, either. If heirarchy were not eroticized in male­
dominant sexuality, I do not think hierarchy would mean what it
does, exist where it does, much less be attached to gender, hence to
"mother," who remains a woman. I don't think female mothering is
a why of male supremacy; I do think women and children are linked
in eroticized powerlessness under male supremacy.
Audience: What about female power?
C.M. : Since I think that is a contradiction in terms, socially speak­
ing, I am going to resume what I had planned to say at this point,
because I think it will become clear why I think "female power" is a
misnomer. Let me know if it doesn't.
Now I want to speak to the question of what sexuality is in this
theory. I do not see sexuality as a transcultural container, as essential,
as historically unchanging, or as Eros. I define sexuality as whatever
a given society eroticizes. That is, sexual is whatever sexual means in
a particular society. Sexuality is what sexuality means. This is a polit­
ical hermeneutical view. Hermeneutics concerns matters of meaning.
If sexuality is seen in this way, it is fundamentally social, fundamen­
tally relational, and it is not a thing-which, by the way, does not
mean it is not material, in a feminist sense of materiality. Because
sexuality arises in relations under male dominance, women are not
the principal authors of its meanings. In the society we currently live
in, the content I want to claim for sexuality is the gaze that constructs
women as objects for male pleasure. I draw on pornography for its
form and content, for the gaze that eroticizes the despised, the de­
meaned, the accessible, the there-to-be-used, the servile, the child-

53
 Approaches

like, the passive, and the animal. That is the content of the sexuality
that defines gender female in this culture, and visual thingification is
its method.
Michelle Barrett asked earlier, how do women come to want that
which is not in our interest? (This is a slight reformulation, but I think
it is in the spirit of her question. ) I think that sexual desire in women,
at least in this culture, is socially constructed as that by which we
come to want our own self-annihilation. That is, our subordination
is eroticized in and as female; in fact, we get off on it to a degree, if
nowhere near as much as men do. This is our stake in this system
that is not in our interest, our stake in this system that is killing us.
I'm saying femininity as we know it is how we come to want male
dominance, which most emphatically is not in our interest. Such a
critique of complicity-I say this to Gayatri [Spivak]-does not come
from an individualistic theory.
The kind of analysis that such a feminism is, and, specifically, the
standard by which it is accepted as valid, is largely a matter of the
criteria one adopts for adequacy in a theory. If feminism is a critique
of the objective standpoint as male, then we also disavow standard
scientific norms as the adequacy criteria for our theory, because the
objective standpoint we criticize is the posture of science. In other
words, our critique of the objective standpoint as male is a critique of
science as a specifically male approach to knowledge. With it, we
reject male criteria for verification. We're not seeking truth in its fe­
male counterpart either, since that, too, is constructed by male
power. We do not vaunt the subjective. We begin by seeking the truth
of and in that which has constructed all this-that is, in gender.
Why is objectivity as a stance specifically male? First of all, familiar
to all of you is the social specificity, the particularity; the social situ­
atedness of thought. Social situation is expressed through the con­
cepts people construct to make sense of their situation. Either gender
is one such social situation, or it is not. If it is, then theories con­
structed by those with the social experience of men, most particularly
by those who are not conscious that gender is a specific social circum­
stance, will be, at the least, open to being male theories. It would be
difficult, it would take a lot of conscious effort, for them not to be. To
repeat myself, it is not that I have a biological theory of gender, so
that every utterance out of a biologically gendered person's mouth is
socially gendered in the same way. I'm saying it is not foreign to us
that social conditions shape thought as well as life. Gender either is
or is not such a social condition. I'm claiming that it is.

54
 Desire and Power

Objectivity is a stance only a subject can take. This is all very in­
teresting on a verbal plane. Gayatri turned this question around; I'll
turn it one more time. It is only a subject who gets to take the objec­
tive standpoint, the stance which is transparent to its object, the
stance that is no stance. A subject is a self. An object is other to that
self. Anyone who is the least bit attentive to gender since reading
Simone de Beauvoir knows that it is men socially who are subjects,
women socially who are other, objects. Thus the one who has the
social access to being that self which takes the stance that is allowed
to be objective, that objective person who is a subject, is socially
male. When I spoke with David Kennedy about this earlier, he said
that the objective subject didn't have to be male, so he didn't see how
it was gendered. It could be any way at all, he said. Well, yes; but my
point is that it isn't any way at all; it is gendered, in fact in the world.
If, in order to be gendered, something has to be gendered, those of
us in the social change business could pack up and go . . . where?
We would give up on changing gender, anyway. Of course it could
be any way at all. That it could be and isn't, should be and isn't, is
what makes it a political problem.
We notice in language as well as in life that the male occupies both
the neutral and the male position. This is another way of saying that
the neutrality of objectivity and of maleness are coextensive linguis­
tically, whereas women occupy the marked, the gendered, the differ­
ent, the forever-female position. Another expression of the sex spec­
ificity of objectivity socially is that women have been nature. That is,
men have been knowers, mind; women have been "to-be-known,"
matter, that which is to be controlled and subdued, the acted upon.
Of course, this is all a social matter; we live in society, not in the
natural world.
Questions of falsifiability look different in this context. One con­
sequence of women's rejection of science in its positivistic form is that
we reject the head-counting theory of verification. Structural truths
about the meaning of gender may or may not produce big numbers.
For example, to say "not only women experience that" in reply to a
statement characterizing women's experience, is to suggest that to be
properly sex-specific, something must be unique to one sex. Simi­
larly, to say "not all woman experience that," as if that contraindicates
sex specificity, (this point is to Larry Grossberg) is to suggest that to
be sex-specific, something must be true of 100 percent of the sex af­
fected. Both of those are implicitly biological criteria for sex: unique
and exclusive. Never mind that the biology of sex is not bipolar or

55
Approaches

exclusive. This is the way the biology of gender is ideologically con­

ceived .
Methodological assumptions have political consequences. One re­
sult of this implicitly biological notion of sex specificity is that differ­
ences among women (notice differences again), such as, crucially; race
and class, are seen to undercut the meaningfulness or even the reality
of gender. If I say such and so is true of women, and someone re­
sponds, but it's not the same for all women, that is supposed to un­
dercut the statement, rather than to point out features that make up
the sex specificity of the thing. If gender is a social category; gender
is whatever it socially means. All women either will or will not be hit
in particular ways by the reality of gender, the totality of which will
then comprise the meaning of gender as a social category. In other
words, to show that an observation or experience is not the same for
all women proves only that it is not biological, not that it is not gen­
dered. Similarly; to say that not only women experience something­
for example, to suggest that because some men are raped rape is not
an act of male dominance-only suggests that the status of women
is not biological. Men can be feminized too, and they know they are
when they are raped. The fact that sometimes whites have been
slaves does not make Black slavery not racist. That some non-Jews,
such as gypsies and gays, were victims of the Holocaust does not
mean the Holocaust was not, or was less, anti-Semitic. We know
something about the content of Black slavery-that is, of white rac­
ism-and about the content of the Holocaust, I trust, that makes it
impossible to present isolated if significant counterexamples as if
they undercut the specific meaning of the atrocities for the groups
who were defined by their subjection to them. The fact that lots of
white people are poor does not mean that the poverty of Blacks has
nothing to do with white racism. It just means that social relations
cannot be understood by analogy to machines or bodies or thermo­
dynamics or even quantum mechanics.
It has been suggested that men who experience feelings similar to
those women articulate as women may be expressing ways in which
being on the bottom of hierarchies can produce similar feelings in
people. The declassed status of student, for example, however tem­
porary; makes a lot of men feel the way most women feel most of the
time-except that the men tend to feel it, because they've fallen from
something. There is nothing like femininity to dignify one's indignity
as one's identity. Nor do women and men come to the status of "stu­
dent" the same. Women have been silenced as women: we have been

56
 Desire and Power

told we are stupid because we are women, told that our thoughts are
trivial because we are women, told that our experiences as women
are unspeakable, told that women can't speak the language of signif­
icance, had our ideas appropriated by men, only to find those ideas
have suddenly become worthy, even creative. Women have been ex­
cluded from education as women. This isn't to say we're the only
ones who have been excluded from education, but rather that the
specific history of that for us as women brings us to a structure like
that of this conference-in which there's authoritative discourse ema­
nating from the podium and silent receptivity in a mass-in a way
that specifically intimidates and has specific exclusionary resonances
for us. To those of you who denied this yesterday, I claim the sex
specificity of that aspect of this experience.
The next thing I want to address is the methodological question of
uncertainty. I want your thoughts on all of this, but in particular on
this. I'm coming to think that because men have power over women,
women come to epistemological issues situated in a way that sheds a
rather distinct light on the indeterminacy/determinacy question as
men have agonized over it. Take the problem of "is there a reality and
how do I know I'm right about it?" The "is there a there there?" busi­
ness. How do we deal in the face of Cartesian-updated as existen­
tial-doubt? Women know the world is out there. Women know the
world is out there because it hits us in the face. Literally. We are
raped, battered, pornographed, defined by force, by a world that be­
gins, at least, entirely outside us. No matter what we think about it,
how we try to think it out of existence or into a different shape for us
to inhabit, the world remains real. Try some time. It exists indepen­
dent of our will. We can tell that it is there, because no matter what
we do, we can't get out of it. Male power is for us-therefore is-this
kind of fact.
The point of science, as I get it, has been to replace opinion with
certainty, to replace religion and faith with the empirical hard stuff.
Social science does this by analogy to the physical world: as things
move, so society moves. Its laws of motion make society predictable
and controllable, or try to. By the way, this analogy, between the so­
cial and physical worlds, which underlies the whole "science of so­
ciety" project, which I'm here calling a specifically male project, has
not been very deeply looked into to see whether it applies. Women's
situation with respect to that project is that we have been "world" for
an implicitly male-centered social science. We come to this project as
the to-be-known-about, as part of that world to be transformed and

57
Approaches

controlled. Cartesian doubt-this anxiety about whether the world is

really there independent of our will or of our representations, if I can
doubt it, maybe it doesn't exist-comes from the luxury of a position
of power that entails the possibility of making the world as one thinks
or wants it to be. Which is exactly the male standpoint. You can't tell
the difference between what you think and the way the world is-or
which came first-if your standpoint for thinking and being is one of
social power.
Consider the example of faking orgasms, which Gayatri brought
up. Men have anxiety that women fake orgasms. Take women's or­
gasms as an example of something about which one can have Carte­
sian doubt. "How do I know" she's satisfied, right? Now consider
why women fake orgasms, rather than how too bad it is that men
can't, so that therefore they're unequal to us. I would bet that if we
had the power men have, they would learn. What I'm saying is, men's
power to make the world here is their power to make us make the
world of their sexual interaction with us the way they want it. They
want us to have orgasms; that proves they're virile, potent, effective.
We provide them that appearance, whether it's real for us or not. We
even get into it. Our reality is, it is far less damaging and dangerous
for us to do this, to accept a lifetime of simulated satisfaction, than
to hold out for the real thing from them. For them, we are "world"
to their knowledge of world. Their Cartesian doubt is entirely justi­
fied: their power to force the world to be their way means that they're
forever wondering what's really going on out there .
Heisenberg's uncertainty principle comes close to this awareness.
If the way you know the world is this intervention, piercing the veil,
making penetrating observations, incisive analyses . . . well, wom­
en's social powerlessness gives us the opposite problem. We're for­
ever wondering whether there's anything other than the reality of the
world men make. Whether there is any sphere of the world that re­
sponds to our will, our thought. Women are awash in doubt, but ours
has never had the credibility of Descartes' . It is our reality, even before
our knowledge, that is in doubt. Thus I think that the indeterminacy
that arises in discourse theory; and in the social text, describes some­
thing that, as genders, we are unequally situated in. If you don't de­
termine reality, its indeterminacy-its unfixity-is a good deal less
apparent to you. Your world is very determinate; it is all too fixed. It
can't just be any way at all.
Now I want to say something about the use of the verb "to be" in
feminist theory. If the analysis I have given is right, to be realistic

58
 Desire and Power

about sexuality socially is to see it from the male point of view. To be

feminist is to do that with a critical awareness that that is what you
are doing. This explains why feminist insights are often criticized for
replicating male ideology, why feminists are called "condescending
to women," when what we are doing is expressing and exposing how
women are condescended to. Because male power has created in re­
ality the world to which feminist insights, when they are accurate,
refer, many of our statements will capture that reality, simply expos­
ing it as specifically male for the first time. For example, men say all
women are whores . We say men have the power to make this our
fundamental condition. So feminism stresses the indistinguishability
of prostitution, marriage, and sexual harassment. See: what a woman
"is" is what you have made women "be." That "is" women, as men
make women mean. They have the power to; they do-otherwise
power means nothing. It's a very empirical "is." Men define women
as sexual beings; feminism comprehends that femininity "is" sexual.
Men see rape as intercourse; feminists say much intercourse "is"
rape. Men say women desire degradation; feminists see female mas­
ochism as the ultimate success of male supremacy and marvel at its
failures.
If male power makes the world as it "is," theorizing this reality
requires capturing it in order to subject it to critique, hence to change.
Feminists say women are not individuals. To retort that we "are" will
not make it so; it will obscure the need to make change so that it can be
so. To retort to the feminist charge that women "are" not equal, "Oh,
you think women aren't equal to men" is to act as though saying we
"are" will make it so. What it will do instead, what it has done and
is doing, is legitimize the vision that we already "are" equal. That this
life as we live it now is equality for us. It acts as if the purpose of
speech is to say what we want reality to be like, as if it already is that
way, as if that will help move reality to that place. This may work in
fiction, but it won't work in theory. Rather, if this is reality, nothing
needs changing: this is freedom; we choose this. To me, this answer
is about denial and is the opposite of change.
Stanley Aronowitz talked pretty extensively about marxist method.
I see two strains in marxist method; it is not monolithic. One is the
more objectivist strain, which purports to take the neutral position.
The other, which I draw on, is more critical of the necessary situat­
edness of its own standpoint. This strain purports to capture as
thought the flux of history, and it understands itself-more in Lu­
kacs' mode-as reflexive, as participating in an ongoing situation,

59
Approaches

trapped in it in a way, needing to be self-critical and also having, by

virtue of that involvement, some access to the truth of the situation.
Feminism has widely been thought to contain tendencies of liberal
feminism, radical feminism, and socialist feminism. Too often, so­
cialist or marxist feminism has applied the objectivist strain in marx­
ism to women and called that marxist feminism. Liberal feminism has
applied to women the same objectivism that marxism shares with
liberalism, resulting in liberalism applied to women. This, especially
on questions of sexuality, is markedly similar to the left view, because
of the common maleness of the epistemological posture. What I am
calling feminism includes at least some versions of radical feminism,
not the biological determinist, but the socially based ones. This fem­
inism is methodologically postmarxist. It is a move to resolve the re­
lationship between marxism and feminism on the level of method.
Methodologically, a post-marxist analysis treats women as a social
group, not in individualist, naturalist, idealist, moralist, voluntarist,
or harmonist terms. (In those terms, we're all really equal, and so­
cially we have a naturally harmonious relation between the genders,
which needs, at most, marginal reequilibration). I've noticed that for
many people liberal views of sexuality-treating it in terms that are
individual, natural, ideal, moral, and voluntarist-seem to coexist re­
markably well with otherwise marxist views. In my opinion, no fem­
inism worthy of the name is not methodologically post-marxist.
As an example of post-marxist feminism, I want to consider the
often-raised question of whether "all women" are oppressed by het­
erosexuality. The question is posed as if sexual practice were a matter
of unconstructed choice. If heterosexuality is the dominant gendered
form of sexuality in a society where gender oppresses women
through sex, sexuality and heterosexuality are essentially the same
thing. This does not erase homosexuality, it merely means that sex­
uality in that form may be no less gendered. Either heterosexuality is
the structure of the oppression of women or it is not. Most people
see sexuality as individual and biological and voluntary; that is, they
see it in terms of the politically and formally liberal myth structure.
If you applied such an analysis to the issue of work-anyone who
thinks this is not a valid parallel should target this peculiarly sensitive
example-would you agree, as people say about heterosexuality, that
a worker chooses to work? Does a worker even meaningfully choose
his or her specific line or place of work? If working conditions im­
prove, would you call that worker not oppressed? If you have com­
paratively good or easy or satisfying or well-paying work, if you even

60
 Desire and Power

like your work, or have a good day at work, does that mean, from a
marxist perspective, your work is not exploited? Those who think
that one chooses heterosexuality under conditions that make it com­
pulsory should either explain why it is not compulsory or explain
why the word choic.e can be meaningful here. And I would like you
to address a question that I think few here would apply to the work­
place, to work, or to workers: whether a good fuck is any compen­
sation for getting fucked. And why everyone knows what that
means.

How to make change. Marxism teaches that exploitation and degra­

dation somehow produce resistance and revolution. It's been hard to
say why. What I've learned from women's experience with sexuality
is that exploitation and degradation produce grateful complicity in
exchange for survival. They produce self-loathing to the point of ex­
tinction of self, and it is respect for self that makes resistance con­
ceivable. The issue is not why women acquiesce but why we ever do
anything but. I would like us to see this as a particular question for
explanation and for organizing. My second urgent question has to do
with class and with race. I would like to see some consideration of
the connections between the theory of sexuality I have outlined and
the forms of property possession and ownership and the erotization
of racial degradation and money. A third urgent issue is the relation
between everything I've said and all forms of inequality. Am I de­
scribing only one form within a larger system, or is this the system,
or is this too abstract a question?
I do believe that none of our work can be done the way it has been
done if what I am saying is taken seriously. We cannot address aes­
thetics without considering pornography. We cannot think about sex­
uality and desire without considering the normalization of rape, and
I do not mean rape as surplus repression. We cannot do or criticize
science without talking about the masculinity of its premises. We can­
not talk about everyday life without understanding its division by
gender, or about hegemony without understanding male dominance
as a form of it. We cannot talk about production without pointing out
that its sex division, as well as sexual harassment and prostitution
(and housework), underpins and constitutes the labor market. We
cannot talk about the phallus in a way that obscures the penis, and
we cannot talk about woman as signifier in a way that loses sight of
woman the signified. We need to systematically understand in order

61
Approaches

to criticize and change, rather than reproduce, the connection be­

tween the fact that the few have ruled and used the many in their
own interest and for their own pleasure as well as profit and the fact
that those few have been men.

62
four
Whose Culture? A Case Note
on Martinez v. Santa Clara Pueblo
(1983)
We made the fires. We are the fire-tenders. We are the ones who do not allow
anyone to speak for us but us.
Beth Brant, Sinister Wisdom (1983)

T
he white man's law, recognizing what he calls equality, has
since the late 1950s prohibited discrimination. Under this law,
equal treatment, without regard to race, ethnicity, and sex
(among other characteristics) is thought to be secured in many areas
of social life. The idea is that people should be free from arbitrary
and unreasonable treatment on the basis of qualities that have no fair
or reasonable or just relation to the purpose for which they are being
used. People shouldn't encounter built-in bias everywhere they go.
In this idea of equality, group characteristics have no necessary rela­
tion to one's ability to perform tasks, to merit, to potential contribu­
tions to society, or to needs for particular benefits.
I am sure it will surprise no one at the Survival School when I say
that the white man has kept the meaning of this principle in his own
hands. Or, he has placed it in the hands of people who may not be
white or male but adopt and agree with the point of view of the white
man's culture, which is the dominant culture . This has tended to
mean that the principle of equality has been interpreted to affirm spe­
cific white and male cultural values as "the standard." Arbitrariness
is measured as deviance from this standard. "Equality has come to
mean a right to be treated like the white man when you can show
you are like him.lOther rules for interpreting the equality principle
include the i� requirement: something is discriminatory only if
the person doing it meant it to be.l The white man has to know what

This talk was given at the request of Native American women at the North American
Survival School, Red Earth, St. Paul, Minnesota, March 12, 1983. It grew considerably
from the dialogue that followed the presentation. I dedicate these thoughts to Glenn
Morris.

63
Approaches

he's doing. That certainly keeps the definition of victimization in the

victimizer's hands. If a whole set of people who, as they put it, "just
happen to be" women or "just happen to be" Black or Chicano or
Native are hurt, if it wasn't intentional or can't be proved to be· inten­
tional then it's just too bad. It doesn't count as discrimination. Given
such notions, it makes sense that to date most of the cases that have
shaped the highest law against sex discrimination have been brought
and wo;'by white men.2
Also consistent with this is that laws guaranteeing equality tend
not to apply to some of the most extreme instances of enforced in­
equality. For example, most women work in jobs that mostly women
work in.3 If there is no man around who is being treated better than
you to compare yourself with, to set the standard, the fact that you're
segregated into an entire category of occupation, and that the whole
occupation pays very little, has not been seen as a problem to be
addressed by the law against sex inequality. You're just in a "differ­
ent" situation, even though what makes it different is segregation.
There has been a similar circularity to the way the laws against
racial and ethnic discrimination have been applied in the white man's
courts. When discrimination in one area of society creates inequality
in other areas, that has often been seen as just the way it happens to
be, as just facts, not as discrimination.4 The courts limit the scope of
the issues they are willing to recognize in each case; in this way seg­
regation in housing can become a reason that schools are not found
to be segregated. It's just that only certain people live in these com­
munities, so the fact that the schools are segregated just reflects the
local community. The school boards are not segregating anyone. Why
is the housing segregated? It just happens that some folks who just
happen not to be white don't happen to make so much money, so
they can't afford this housing, so they don't live here. Why don't
these folks happen to make enough money to live here? That is not
really discrimination, it's just that the jobs they do just happen to pay
a lot less than other jobs because those people don't happen to have
the educational qualifications that would enable them to get the
higher-paying jobs. Why don't they have the educational qualifica­
tions? They just didn't happen to go to such good schools. Why?
Because they live in poor communities that tend to have the less good
schools. Everything is seen as if it were happenstance, at each step.
Nobody discriminates, everybody just takes things as they really are,
as they just happen to be. Whenever it's real, whenever it's a trap,

64
 Whose Culture?

whenever it's a closed system, it isn't discrimination. The more un­

equal it is in life, the less discriminatory it looks to the law.
In a society that is anything but sex-blind and color-blind, courts
insist on color blindness and sex blindness as the rule for discerning
inequality and enforcing equality.5 The moment you complain in
court about discrimination is probably the first moment in your life
when your color, your race, your ethnicity, or your sex becomes "ir­
relevant." This is supposed to be a principled and neutral stance. But
the white man's standard for equality is: are you equal to him? That
is hardly a neutral standard. It is a racist, sexist standard. If you can
prove that you have what are socially white and male qualifications­
money, education, credibility-and that you are basically white and
male in every cultural way but were oddly mistaken for, say, a Third
World woman and so were turned down for some benefit, at that
moment the white man may see that you have not been treated
equally. But if you present yourself as affirmatively and self­
respectingly a member of your own culture or sex, deprived or dam­
aged or contributing as such, if you insist that your cultural diversity
be affirmatively accommodated and recognized in ways equal to the
ways theirs has been, that's not seen to be an equality challenge at all.
If you say: I am a woman; I insist that what it is and what it means
to be a woman-for example, the fact that I am pregnant or the fact
that I need an abortion-shall not be a reason to deny employment
or health benefits when you cover all the employment or health
needs that men have, they say: that's not an equality right. You' re
different. You' re asking for special treatment for your differences. The
white man's meaning of equality is being equal to him, which is the
same as being the same as him. This meaning of equality has not
valued any cultural or sexual distinctiveness except his own.
In this context, I want to raise and consider, far from resolve, some
of the issues from the case of Julia Martinez against the Santa Clara
Pueblo,6 a lawsuit a Native American woman brought against her
tribe. This case is important not because the most pressing inequali­
ties involve discriminations against Native women by Native tribes.
Genocide in all its forms is a massive imposition of inequality on Na­
tive peoples and Native cultures by white people and white culture.
I raise this case because its poses difficult tensions, even conflicts,
between equality of the sexes, on the one hand, and the need to ap­
proach those questions within their particular cultural meanings, in
an awareness of history and out of respect for cultural diversity and

65
Approaches

the need for cultural survival, on the other. If questions of sex and
sexism are not to be separated from questions of race and racism
under the specific cultural and historical conditions in which both
arise, as I think they cannot be, we need to ask: who will define what
equality means? White man's equality law has largely defined it the
way I have sketched. The issue I want to raise, which the Martinez
case in the end leaves open, is how Native people will define it.
Julia Martinez sued her tribe in United States federal court over a
tribal rule. The rule said that if Native women married outside the
tribe, the children of that union were not full tribal members; if Na­
tive men married out, there were no such consequences. Julia Mar­
tinez married a Navaho man. Her children, who sued with her, could
therefore not be full members of her Santa Clara tribe. They could
not vote or inherit her rights in communal land, for example. Chil­
dren of men who married non-Santa Clara women remained full
members of the tribe and succeeded to all their rights. When men
marry outside the tribe, the families they create become families of
the tribe; when women marry outside the tribe, the families they cre­
ate are not families of the tribe. Julia Martinez apparently tried to get
the tribe to change this rule. When she was unsuccessful, she went
to federal court-the white man's court-and argued that this was
discrimination under the Indian Civil Rights Act, which has a provi­
sion against denying equal protection of the laws.
The United States Supreme Court, in a departure from its more
common posture toward Indian tribal rights, said that this was a
question of Indian sovereignty to be resolved by the tribe.7 In this,
the United States Supreme Court will respect tribal sovereignty. Per­
haps the control of Indian women matters less to the United States
than does the control of land, fish, minerals, and foreign relations,
as to which tribes are not as sovereign.8 Whatever you think of the
reasons, the result is that the tribes will define what equality of the
sexes is going to mean, at least on the question of who is an Indian.
I find Martinez a difficult case on a lot of levels, and I don't usually
find cases difficult. Missing from the Supreme Court's account of the
case is the history of the tribal rule. I am told that the rule was made
in 1939 after the General Allotment Act9 divided up communal lands
into individually held parcels, in something like an attempt to make
Indians into proper agrarians. Although this law did not apply to the
Pueblos, they recognized that Congress could apply it to them at any
time. In the experience of tribes it did apply to, lands were being

66
 Whose Culture?

taken away by white men marrying Native women.The Santa Clara

rule was passed to prevent women who married out from passing
land out, in an attempt to secure the survival of a culture for which
land is life. Without knowing this, which I have by word of mouth,
it is hard to understand what the Supreme Court meant when it said
that this rule was "'no more or less than a mechanism of social ...
self-definition,' and as such [was] basic to the tribes' survival as a
cultural and economic entity."10 The rule was seen as basic to survival
because it discouraged Native women from marrying white men-or
white men from marrying Native women, depending on how you
see who does what-because that was taking away Native land.
When Native men married white women, the experience apparently
had been that white women more often integrated with the tribe.
Given this history, which the tribe did not choose or make, I imag­
ine the tribe saying, we need this rule. I imagine Julia Martinez re­
plying: I understand that history, it is also my history, but this is a
male supremacist solution to a problem male supremacy created.The
rule keeps Indian women for Indian men at the price of loss of tribal
rights, from a time when Native women did not have formal power
in rule-making. What would be wrong with preventing any child
from inheriting land from parents who were not both tribal mem­
bers? Whose system is it that ties ownership of land to ownership of
women? Is that our tradition? Why is it seen as a matter of cultural
survival when men guarantee exclusive access to Indian women as a
requirement of tribal membership, but when an Indian woman at­
tempts to claim that her family is an Indian family, to choose who to
make a family with, it's called a threat to cultural survival? Whose
culture is this culture? Is male supremacy sacred because it has be­
come a tribal tradition? Under what conditions?
The tribe says: how can you apply the white cultural idea of equal­
ity to take us into this foreign court that has historically justified the
atrocities that have subjected our people? Julia Martinez responds,
how can you say that my desire for equality is not an Indian idea?
When I say I am the equal of an Indian man, why do you say that I
do not speak as an Indian woman? Why do you make me choose
between my equality as woman and my cultural identity? The tribe
says: because of the white man's history of racism and genocide, this
is not an issue of sex discrimination.Your claim cannot be separated
from either our history or your forum. How can you go to them for
justice? Julia Martinez replies, how could the tribe make this rule?

67
Approaches

Why have you made me go to them for justice? Directly to me, I hear
her say: since when is the way a woman is treated anywhere strictly
an internal or national matter for you? If your country treated you
this way, wouldn' t you want somewhere else to go for justice?
As I said, the Supreme Court decided to stay out of this. I want to
suggest that cultural survival is as contingent upon equality between
women and men as it is upon equality among peoples. The sex di­
vision in this case undermined the ability of Native Americans to sur­
vive as autonomous cultures. It was certainly not a means of pro­
moting that survival. This is not the case because Julia Martinez
fought over it, and not because she fought it in the white man's court,
but because the tribe was willing to sacrifice her tribal connection, her
full membership in the tribal community, in the face of a white male
supremacist threat. Their rule did nothing to address or counteract
the reasons why Native women were vulnerable to white male land
imperialism through marriage-it gave in to them, by punishing the
woman, the Native person. Sex inequality, looked at close up, may
threaten the cultural survival of Native peoples just as going outside
the culture to resolve it threatens tribal sovereignty. But this only ap­
pears if one recognizes that the systematic vulnerability of Native
women to marriages that can destroy the tribe indicates the tribe has
a problem-and not a problem to be solved by punishing Native
women through their children to provide a disincentive. Why is ex­
cluding women always an option for solving problems men create
between men? Maybe women's loyalty would be more reliable if their
communities were more equitable.
In the Martinez case, the Supreme Court allowed the tribe to make
its own rules, allowing-even if for some reasons I might criticize­
that the most important meanings of equality are the meanings com­
munities make for themselves. The question now is, what will the
tribes make equality mean, and whose voice will speak for them?
When I discuss this issue, I find that some people consider equality
to be a white idea. If you think equality means what the white man
has made it mean-being the same as him-it definitely is a white
idea. But the aspiration of women to be no less than men-not to be
punished where a man is glorified, not to be considered damaged or
disloyal where a man is rewarded or left in peace, not to lead a de­
rivative life, but to do everything and be anybody at all-is an aspi­
ration indigenous to women across place and across time. I think the
tribal rule in the Martinez case is male supremacist, not just sex dif-

68
 Whose Culture?

ferentiated. Since when is male supremacy a tribal tradition? For at

least some tribes, since contact with European whites.11 At that point,
it looks more like inequality is the white idea. And what women like
Julia Martinez might make equality mean, no white man invented.

69
five
On Exceptionality:
Women as Women in Law
(1982)

S
isters and friends. I speak tonight to celebrate the victory, for
them and for all women, of the ascension of Rosalie and Mary
Jean to the Supreme Court of the state of Minnesota. I plan to
be critical and inspirational. When I told Rosalie that I planned to be
inspirational, she said, "Oh, really? not controversial?" I said, "Ros­
alie, you can't be inspirational in speaking about women and not be
controversial." I particularly plan not to be instrumental. You may
think that I'm not being very practical. I have learned that practical
means something that can be done while keeping everything else the
same. In that sense, the analysis and vision that I'm giving you to­
night is not practical. It is, however, a form of practice.
Dean Bob Stein said that this subject had everyone intrigued. I
think it has everyone's teeth on edge. From one traditional perspec­
tive (particularly given my reputation which seems, as people tact­
fully put it, to have preceded me) you expect a feminist diatribe. You
want to know why we can't all relax and just be persons. Why does
she have to say it twice, women as women, to get it across? Feminists,
hearing this subject, wonder whether I'm going to glorify our oppres­
sion and embrace it as identity. Will she shove the female stereotype
down our throats in the name of the eternal female and call that fem­
inism? Finally, successful women, whether traditional or feminist­
that is, women who have succeeded in a system that is not built for
women to be successful-feel a trash coming on. When a feminist
speaks about women as women in law; such a woman braces for a
critique of women who have succeeded for having succeeded. On the
assumption that they must have sold out, therefore are not real
women, because real women fail or die trying.
Instead I am going to do something that, at least in my experience,

This address was given in honor of Rosalie Wahl, Associate Justice, Minnesota Su­
preme Court, and Mary Jean Coyne, Associate Justice, Minnesota Supreme Court, at
the University of Minnesota Law School, Minneapolis, Minnesota, Oct. 4, 1982.

70
 On Exceptionality

has never been done. I will talk in a way that doesn't fall into any of
these categories that might have set your teeth on edge in anticipa­
tion. I will speak-and this is where we'll run into trouble with the
more concretely inclined among us-about something that has not
been allowed to exist, but also somehow nevertheless does. I will
make one argument: that the definition of women in law and in life
is not ours. There will be two parts: the law part and the life part. I
will argue that women, in sex discrimination law and in the experi­
ence of lawyering, do not exist as we, as women, see ourselves. In
these spheres we do not find women from women's point of view.
We do not have women for ourselves, women for all women, women
as members of a community of interest of women, women measured
by standards that reflect the experience and aspirations of women as
such. We are not allowed to be women on our own terms. Justice
Holmes (without quoting whom no discussion on law seems com­
plete) said in 1881, "The life of the law has not been logic: it has been
experience."1 As I think about law and life, the life of the law and a
life in law, I wonder, whose experience?
Now I will make some broad and sweeping generalizations about
sex discrimination doctrine. On my reading, sex discrimination-this
law under which we are offered a chance to assert equality with
men-offers women two routes to sex equality. The primary avenue
views women as if we were men. It measures our similarity with men
to see if we are or can be men's equals. This standard is called the
equality rule. It is considered gender-neutral, abstract, neutral, prin­
cipled, essentially procedural and objective. I will argue that it sub­
stantively embraces masculinity, the male standard for men, and
applies it to women. The second approach available under sex dis­
crimination doctrine views women as men view women: in need of
special protection, help, or indulgence. To make out a case, com­
plainants have to meet the male standard for women: femininity. It is
openly, if uncomfortably, recognized as substantive, not objective or
abstract. It is considered compensatory and sex-specific. This so­
called "benign discrimination" is considered the only way to analyze
women substantively as women for legal purposes. In other words,
for purposes of sex discrimination law, to be a woman means either
to be like a man or to be like a lady. We have to meet either the male
standard for males or the male standard for females.
The first approach, considered the gender-neutral equality rule, ig­
nores the fact that the indices and injuries of sex or sexism often make
certain that simply being a woman may mean seldom being in a po-

71
Approaches

sition sufficiently similar to that of a man to have different treatment

which hurts us be a matter of sex bias. This approach reinforces our
social disadvantages whenever it finds sex differences-which, given
sex inequality, is often. The second approach reflects rather than al­
ters the substance of women's inferior status. It presents as equal pro­
tection what looks more like a protection racket: you get so little out
of this that you are going to keep needing a lot more of it, but you
wouldn't even need it at all if they would stop keeping you down
with it. In these two ways, the legal forms for arguing the injuries of
sex inequality obscure the gender of equality's reference point while
effectively contradicting, not changing, and hardly compensating for,
the content of women's sex-specific grievances.
We are living out the combined consequences of both rules. At the
same time that very few women are gaining access to the precondi­
tions for being able to effectively assert equality on male terms under
the first standard, women created in the image of society's traditional
role are losing the guarantees of those roles-very often to men as­
serting sex equality under the first rule. Women who ask courts to
enforce the guarantees that have been an ideological part of the bar­
gain of women's roles are getting very little-and less and less­
while also not receiving the benefits of the social change that would
qualify them to assert rights on the same terms as men. Women who
wish to step out of women's traditional relations with men and be­
come abstract persons, to be exceptional to women's condition rather
than to receive the protections of it, are treated as if we are seeking
to be like men, without any realization that that concedes the gender
of the standard. Women who seek to meet this standard under sex
discrimination doctrine are served equality with a vengeance. To win
sex discrimination cases under the equality rubric, athletes, academic
women, professional women, blue-collar women, and military
women, for instance, have to meet the male standard: the standard
that men are trained and prepared for socially as men. They tell us
no, it's not a male standard, it is just the standard. If you protest that,
they say measure up or get out. Women in these roles are then re­
quired to pay the price of admission, to meet these socially stacked
standards-standards men are supposed to meet but very often
do not.
Women who assert sex discrimination claims in terms of traditional
roles, meaning in terms of women's traditional relations with men,
such as widows, mothers, wives, have to present ourselves as in need
of their protection. If we don't present that image, we are evaluated

72
 On Exceptionality

like men, rather than according to the specific vulnerabilities of all

women's current situation. For example, to apply this critique to a
case you may be familiar with, Dothard v. Rawlinson, women were
excluded from guard jobs in contact positions in male prisons be­
cause of what the court called "their very womanhood," meaning
their capacity to be raped.2 The plaintiffs were protected out of a job
they wanted while the conditions that create women's rapeability as
the definition of womanhood were not even seen as susceptible to
change. When courts learn that sexual harassment is as vicious and
pervasive and damaging to women in workplaces everywhere as
rape is to women guards in male prisons, and as disruptive to pro­
duction as rape is to prison security; will women be excluded from
the workplace altogether?
Now we will do a sex comparison. You're supposed to do that in
sex discrimination law. Apply everything just said about women to
men. From the list of women who receive the protections or compen­
satory benefits of women's situation, I'm granting that there are un­
doubtedly many widowers who are in the situation of most wid­
ows-poor. A few husbands are like most wives-financially
dependent on their spouse. It is also true that a few fathers, like most
mothers, are primary parents, to invoke another case.3 My point,
though, is that occupying those particular positions is consistent with
the norms for gender female. To be poor, financially dependent, and
a primary parent constitutes part of what being a woman means.
Most of those who are in those circumstances are women. A gender­
neutral approach to those circumstances obscures, while the protec­
tionist approach declines to change, the fact that women's poverty;
financial dependency; motherhood, and sexual accessibility (our
targeted-for-sexual-violation status) substantively make up women's
status as women. It describes what it is to be most women. That some
men find themselves in a similar situation doesn't mean that they
occupy that status as men, as members of their gender. They do so as
exceptions, both in norms and numbers.
Women, to claim being similarly situated with men in the sense sex
discrimination law demands, also have to be exceptions. Specifically,
they must be able to claim everything that gender inequality has in
general systematically denied to women as a sex: financial indepen­
dence, job qualifications, business experience, leadership capacities,
assertiveness and confidence, the esteem of your peers, physical stat­
ure, strength or prowess, combat skill, sexual inviolability; and at all
stages of legal proceedings, credibility. Taking the sexes as individu-

73
Approaches

als, meaning one at a time as if they did not belong to a gender,

perfectly obscures these collective realities behind the mask of rec­
ognition of individual rights. Given that women are not situated sim­
ilarly to men, but rather are socially unequal, looking at women one
at a time rather than as women ensures that it is only the exceptional
woman who escapes gender inequality enough to be able to claim
she is injured by it. It seems that we already have to be equal before
we can complain of inequality.
Nor have women as such, women as women in the sense I'm trying
to develop, under any doctrinal guise, defined the terms of discourse
or the standards of judgment from women's standpoint. Women ath­
letes or academics or military women may be allowed to play with
the boys, but we are not allowed to criticize competition or strength
or profitability as the standard for athletics, to question objectivity as
a measure of intellectual excellence or abstraction as the point of
scholarship, nor are we allowed to reject combat as a peculiarly ejac­
ulatory means of conflict resolution.
Now I want to talk about life in a different mode: in the practice of
law. Available to women in the practice of law are the same two roles
as those in standards of sex discrimination law, except that women
lawyers are held to both at once. I call them the man standard and
the lady standard. I think it will be apparent to most of us that a
successful lawyer is a man, in the sense that the role of a successful
lawyer is a male role regardless of the biology of its occupant. No
man is made to feel like less of a man for being a good lawyer, re­
gardless of his particular style. Being a lawyer is also substantially
more consistent with the content of the male role, with what men are
taught to be in this society: ambitious, upwardly striving, capable of
hostility, aggressive not just assertive, not particularly receptive or
set off from the track of an argument by what someone else might be
saying or, god forbid, feeling. It also requires one to be unserious. By
this I mean what I think Virginia Woolf meant when she spoke of
"unreal loyalties."4 Not being present in what you say in a way that
might make you vulnerable, skilled at false and manipulative passion
and manufactured intensity. The lawyer role has as its implicit norms
the same qualities that are the explicit norms of masculinity as it is
socially defined. It is a power role.
A successful lady, by contrast, is deferential, considerate, at most
assertive, receptive, and overly sincere, emotional. Emotional is the
word we get, not just when we are told we are being hysterical, but
when we really mean what we say and don't want to say things as if

74
 On Exceptionality

we mean them that we not only don't mean but oppose. I'm not say­
ing women have a corner on being principled. I'm saying that part of
a lawyer's role includes the ability not to care which side of the ar­
gument you are on, and women are regularly faulted for failing at
that. Now, given that you are a woman lawyer, are you feeling a little
schizoid?
The cardinal quality of the ability to successfully negotiate this par­
ticular schism, this demand to be professionally masculine and per­
sonally feminine at the same time at all times, is that you not identify
as a woman. I'm going to read a short excerpt from a statement an
attorney recently made at a placement seminar here. He was asked,
"Do you take sex into account in hiring?" His answer was:

As long as I've recruited I've kept records, talked to other attorneys, there is
a recruiters' network. Everyone gets together around now and violates the
Robinson-Patman Act on how much we are going to offer in terms of salaries
and so forth. [Laughter.] But one generalized comment about women in par­
ticular is that one reason that recruiting now of females is from a recruiter's
standpoint a lot easier is that there are more mainstream women going into
law school. You know where you were in 1970 or 1971 it was very often
almost a suffragette, very activist sort of person, and indeed it had to be to
break down some of the existing barriers in the private practice or in the
corporate area. People who were really willing to come out swinging that
made at least some of the initial assimilation process [this is a dramatic read­
ing] in some of the more silk-stocking law firms a bit more difficult at first,
but I think those are really old issues because the women who are going to
law school now for the most part and men too, for that matter, we're just
seeing a more mainstream type of candidate than we did in the very turbu­
lent period of the seventies.

Men who come out swinging are perhaps seen as lawyers that they
want, law being a form of combat. It also seems clear that their idea
is for women to assimilate to a standard men set, and that that is
contradicted by identifying with the interests of all women, in partic­
ular, to be activist, a suffragette sort. Women are supposed to take on
this male context and integrate-in his word, assimilate. To qual­
ify, interviewers want to know: are you man and lady enough for
this job?
So what do I mean by women? When I think about what women
as women see, about the point of view from the situation of all
women, I think about the fact that between 7 and 8 percent of us have
never been sexually assaulted or harassed.5 That we make half a
man's income and that the only occupations this society, as a struc-

75
Approaches

tural matter, pays women as a group more than men are prostitution
and modeling. The destiny of all of us is marriage. To those of you
who think that marriage is an equal bargain, I would suggest, just to
begin with, that in any place where one cannot prosecute for marital
rape, the woman's obligation to sexually deliver is effectively en­
forced by the state. The support obligation that men supposedly pro­
vide overwhelmingly is not.
Next, it is important to my comprehension of the situation of all
women that all women are not the same. That's what they think-all
women are the same. That does not mean we have nothing in com­
mon. The specificity of each woman's situation, all of our particular­
ities, to frame a dialectical sentence, makes up our commonality. For
example, the statement, woman's place is in the home. Stereotypes
become standards; people try to measure up to them. That's how
they work, that's what they're for; that's why they are so often true.
So is this stereotype in some way true of the situation of all women?
It strikes me that it is as a standard, as what we are measured against,
but as a description, it needs particularity. For instance, not all
women have had a choice of a home to be in, or had a choice to stay
in it all day. So if you say a woman's place is in the home, as if that
describes the generic situation of women, it is not true. Unless Black
women's place is in other people's homes. Which is not the same. My
suggestion is that what we have in common is not that our conditions
have no particularity in ways that matter. But we are all measured by
a male standard for women, a standard that is not ours.
This includes women lawyers. In addition to sharing the conditions
that I have described, of sexual assault and economics and marriage
and the definition of all women set by those circumstances, women
lawyers have found ourselves excluded from inner circles and then
rejected because we don't know the inside story or don't play by the
real rules of the game, the rules in the tacit curriculum. We are told
we can't think, while our thoughts are appropriated for the advance­
ment of others. We are told that the pedestal is real and called un­
grateful or lacking in initiative or in the ability to use the power we
have as women when we call it a cage, and then told by people like
Phyllis Schlafly that we have created these conditions when we resist
them. When a few of us, the exceptions, overcome all this, we are
told we prove that there are no barriers there and are used as ex­
amples to put other women down. She made it, why can't you? We
are used as tokens, vaunted as exceptions, while every problem that
we share is treated as itself an exception, as a special case. So to those

76
 On Exceptionality

who say, "Any woman can," as if there were no such thing as discrim­
ination, as if that were exceptional, I say this, and I say it as a woman:
all women can't. And that will be true so long as those who do make
it are the privileged few. Until all women can, none of us succeed as
women, but as exceptions. When we fail, we fail with 53 percent of
the population; when we succeed, we succeed alone. So the feminist
issue for me is not whether one of us, as an individual woman, can
escape some of the burdens of the condition of all women, but
whether it remains socially necessary that someone will remain in
the position we have temporarily escaped from, and that someone
will be a woman. To speak as a woman in this sense is to speak from
the perspective and in the interest of 53 percent of the population, a
community of interest based on a common reality of treatment. I'm
not saying that the meaning of this is easy or obvious in every case,
but it certainly is not a perspective of exceptionality.
When I think about Rosalie and Mary Jean on this Court, I ask
myself: will they use the tools of law as women, for all women? I
think that the real feminist issue is not whether biological males or
biological females hold positions of power, although it is utterly es­
sential that women be there. And I am not saying that viewpoints
have genitals. My issue is what our identifications are, what our loy­
alties are, who our community is, to whom we are accountable. If it
seems as if this is not very concrete, I think it is because we have no
idea what women as women would have to say. I'm evoking for
women a role that we have yet to make, in the name of a voice that,
unsilenced, might say something that has never been heard. I will
hazard a little bit about its content. In the legal world of win and lose,
where success is measured by other people's failures, in this world of
kicking or getting kicked, I want to say: there is another way. Women
who refuse to forget the way women everywhere are treated every
day, who refuse to forget that that is the meaning of being a woman,
no matter how secure we may feel in having temporarily escaped it,
women as women will find that way.

77
II. APPLICATION S

If you're living with a man, what are you doing running around the
streets getting raped?
Edward Harrington, defense attorney in New Bedford gang rape case.

Romance was her suicidal substitute for action; fantasy her suicidal
substitute for a real world, a wide world. And intercourse was her sui­
cidal substitute for freedom.
Andrea Dworkin, Intercourse (1987), discussing Emma Bovary
SlX

A Rally against Rape

(1981)

W
hen the wind blows, I hear the pitchforks rumbling in the
background over this P.A. system.
I want to speak with you about rape as a problem of
sexism, a problem of the inequality between women and men. We
are not in the midst of an epidemic of rape; we are in the midst of a
short flurry of rape reporting and rape publicity. Why are these rapes
being reported and, in particular, why are they being publicized? If
for every reported rape there are between two and ten unreported
rapes (a conservative estimate), it is extremely important to ask not
only why the ones that are reported are, but why the ones that are
not reported are not.
I think women report rapes when we feel we will be believed. The
rapes that have been reported, as they have been reported, are the
kinds of rapes women think will be believed when we report them.
They have two qualities: they are by a stranger, and they are by a
Black man. These two elements give you the white male archetype of
rape. When the newspaper says that these rapes are unusual, they
are right in a way. They are right because rapes by strangers are the
least common rapes women experience. And to the extent that these
are interracial, they are also the least common rapes women experi­
ence. Most rapes are by a man of the woman's race1 and by a man
she knows: her husband, her boss, an acquaintance, or a date.2
In considering the element of racism in this particular publicity and
the nerve that this rape reporting seems to hit, I think it is important
to tell you what I have been told. That is, that two of the victims of
this current rapist are women of color. I think that the nonreporting
of this aspect, although it may have been requested initially by the
women victims and may be an attempt to preserve confidentiality,
also plays into the racist image that what rape is about is Black men
defiling "our white womanhood." The invisibility of women of color

This talk was given at White Plaza, Stanford University, Stanford, California, Nov. 16,
1 981, where several hundred students gathered to grieve and protest a series of rapes
reported on campus.

81
Applications

is such that if you do not say that a woman is of color, it is assumed

that her race is nonexistent-therefore, oddly, white. It's also impor­
tant for us to be aware that women of color (this is specifically a sta­
tistic about Black women) are raped four times as often as white
women.3
Of the reasons raped women give for not reporting rape, the most
common4 is fear of retribution. The retaliation they usually have in
mind is that the rapist will come back after them, which he often says
he will do during the rape. Or they fear that their boyfriends or hus­
bands will beat them or reject them. Very young women, and also
older women, are often afraid that they will be kicked out of the
house. Women who have been victims of incest are particularly likely
to feel this. Women also feel fear and despair of police, hospitals, and
the legal system. Women believe that not only will we not be believed
by the police, not only will the doctors treat us in degrading ways,
but when we go to court, the incident will not be seen from our point
of view. It is unfortunate that these fears have, on the whole, proved
accurate. The fear of being treated poorly is not an invention of wom­
en's imaginations. It is the result of the way we have been treated.
I'm hoping that responsible officials at Stanford are taking notice of
the interest and the anger that women are expressing now to realize
that they are seeing only the tip of the iceberg and that they are part
of the reason why.
Women who do not report rape also say that we want to forget
about it; that we feel embarrassed and humiliated by it and that just
talking to someone else adds to that sense of exposure, the sense of
utter loss of privacy. The very loss we felt when we were raped is
compounded by complaining about the rape. That says something
about the receptiveness of the context we're in when we try to talk
about it. Our protest and resistance are turned into a continuation of
the violation. Women also blame ourselves. We fear being blamed by
other people, and they do blame us.
In what I've said so far, I've had in mind an entire range of rape
experiences. Politically, I call it rape whenever a woman has sex and
feels violated. You might think that's too broad. I'm not talking about
sending all of you men to jail for that. I'm talking about attempting
to change the nature of the relations between women and men by
having women ask ourselves, "Did I feel violated?" To me, part of the
culture of sexual inequality that makes women not report rape is that
the definition of rape is not based on our sense of our violation.

82
 A Rally against Rape

I think it's fairly common, and is increasingly known to be com­

mon, for men to seek sexual access to women in ways that we find
coercive and unwanted. On those occasions the amount and kind of
force are only matters of degree. The problem is that rapes do not
tend to be reported or prosecuted or sanctioned based on the force
that was used; not based on how coercive it was and not based on
how violated the woman feels; instead they are based on how inti­
mate she is with the person who did it. This is why most women
think we won't be believed in reporting the most common rapes, that
is, rapes by people we know. As a result, I agree with what people
have been saying, that rape is everyone's problem. But that doesn't
mean that it's men's problem and women's problem in the same way.
To men I want to say: have you ever had sex with a woman when
she didn't want it? Were you and are you really careful to find out?
Is it enough that you say to yourself now, "I don't know"? Are you
really afraid that nothing will happen between you and a woman if
you don't make it happen? Are you afraid of our rage today? That we
will turn it against you? Is there perhaps a reason for your fear? I
think you need to remember that we love you. And that as a result
it's often very unclear to us why you are so urgent. It's unclear to us
why you are so pressured in seeking sexual access to us. We want
you not to denigrate us if we refuse. We want you to support us, to
listen to us, and to back off a little. Maybe to back off a lot. And we
also want you to realize that supporting us is not the same as taking
over either our injuries or our pleasure.
To women I want to say: what do you really want? Do you feel that
you have the conditions under which you can ask yourself that ques­
tion? If you feel that you are going to be raped when you say no, how
do you know that you really want sex when you say yes? Do you feel
responsible for men's sexual feelings about you? What about their
responsibility for yours, including your lack of them? I also want to
say that women need self-protection; we do not need more paranoia.
The Stanford police tell us, "A little fear is a good thing right now." I
think we do not need more fear. We need to make fear unnecessary.
On an individual basis the only thing that I know that begins to
address this is something we have access to here: real training in self­
defense. Martial arts is not just physical preparation for a one-time
shot or a quick fix or a bag of tricks. It is a spiritual, integrated way
of relating to one's body as one's own, in which one acts and lives
and embodies oneself in the world. Not something that exists only

83
Applications

for carrying your head about or to be looked at by other people. Self­

defense, if it's done right, can begin to give us back a sense that we
have a self worth defending.
I have spoken with you about what holds women back from re­
porting rape in the context of what I think rape is. The only way for
us to have this episode not just blow over, as such episodes have for
centuries, is to use this occasion seriously to question and to change
our lives and to support all sisters who resist.

84
sev.en

Sex and Violence:

A Perspective
(1981)

I
want to raise some questions about the concept of this panel's
title, "Violence against Women," as a concept that may coopt us
as we attempt to formulate our own truths. I want to speak spe­
cifically about four issues: rape, sexual harassment, pornography,
and battery. I think one of the reasons we say that each of these issues
is an example of violence against women is to reunify them. To say
that aggression against women has this unity is to criticize the divi­
sions that have been imposed on that aggression by the legal system.
What I see to be the danger of the analysis, what makes it potentially
cooptive, is formulating it-and it is formulated this way-these are
issues of violence, not sex: rape is a crime of violence, not sexuality;
sexual harassment is an abuse of power, not sexuality; pornography
is violence against women, it is not erotic. Although battering is not
categorized so explicitly, it is usually treated as though there is noth­
ing sexual about a man beating up a woman so long as it is with his
fist. I'd like to raise some questions about that as well.
I hear in the formulation that these issues are violence against
women, not sex, that we are in the shadow of Freud, intimidated at
being called repressive Victorians. We're saying we're oppressed and
they say we're repressed. That is, when we say we're against rape,
the immediate response is, "Does that mean you're against sex?"
"Are you attempting to impose neo-Victorian prudery on sexual
expression?" This comes up with sexual harassment as well. When
we say we're against sexual harassment, the first thing people want
to know is, "What's the difference between that and ordinary male­
to-female sexual initiation?" That's a good question . . . The same is
also true of criticizing pornography. "You can't be against erotica?"
It's the latest version of the accusation that feminists are anti-male.

This early synthesis was framed in part to respond to panel members' concerns with
cooptation at the National Conference on Women and the Law, Boston, Massachusetts,
Apr. 5, 1981.

85
Applications

To distinguish ourselves from this, and in reaction to it, we call these

abuses violence. The attempt is to avoid the critique-we're not
against sex-and at the same time retain our criticism of these prac­
tices. So we rename as violent those abuses that have been seen to
be sexual, without saying that we have a very different perspective
on violence and on sexuality and their relationship. I also think a
reason we call these experiences violence is to avoid being called les­
bians, which for some reason is equated with being against sex. In
order to avoid that, yet retain our opposition to sexual violation, we
put this neutral, objective, abstract word violence on it all.
To me this is an attempt to have our own perspective on these out­
rages without owning up to having one. To have our point of view
but present it as not a particular point of view. Our problem has been
to label something as rape, as sexual harassment, as pornography in
the face of a suspicion that it might be intercourse, it might be ordi­
nary sexual initiation, it might be erotic. To say that these purport­
edly sexual events violate us, to be against them, we call them not
sexual. But the attempt to be objective and neutral avoids owning up
to the fact that women do have a specific point of view on these
events. It avoids saying that from women's point of view, intercourse,
sex roles, and eroticism can be and at times are violent to us as
women.
My approach would claim our perspective; we are not attempting
to be objective about it, we're attempting to represent the point of
view of women. The point of view of men up to this time, called
objective, has been to distinguish sharply between rape on the one
hand and intercourse on the other; sexual harassment on the one
hand and normal, ordinary sexual initiation on the other; pornogra­
phy or obscenity on the one hand and eroticism on the other. The
male point of view defines them by distinction. What women expe­
rience does not so clearly distinguish the normal, everyday things
from those abuses from which they have been defined by distinction.
Not just "Now we're going to take what you say is rape and call it
violence"; "Now we're going to take what you say is sexual harass­
ment and call it violence"; "Now we're going to take what you say is
pornography and call it violence." We have a deeper critique of what
has been done to women's sexuality and who controls access to it.
What we are saying is that sexuality in exactly these normal forms
often does violate us. So long as we say that those things are abuses
of violence, not sex, we fail to criticize what has been made of sex,

86
 Sex and Violence

what has been done to us through sex, because we leave the line be­
tween rape and intercourse, sexual harassment and sex roles, por­
nography and eroticism, right where it is.
I think it is useful to inquire how women and men (I don't use the
term persons, I guess, because I haven't seen many lately) live through
the meaning of their experience with these issues. When we ask
whether rape, sexual harassment, and pornography are questions of
violence or questions of sexuality, it helps to ask, to whom? What is
the perspective of those who are involved, whose experience it is­
to rape or to have been raped, to consume pornography or to be con­
sumed through it. As to what these things mean socially, it is impor­
tant whether they are about sexuality to women and men or whether
they are instead about "violence," -or whether violence and sexual­
ity can be distinguished in that way, as they are lived out.
The crime of rape-this is a legal and observed, not a subjective,
individual, or feminist definition-is defined around penetration.
That seems to me a very male point of view on what it means to be
sexually violated. And it is exactly what heterosexuality as a social
institution is fixated around, the penetration of the penis into the
vagina. Rape is defined according to what men think violates women,
and that is the same as what they think of as the sine qua non of sex.
What women experience as degrading and defiling when we are
raped includes as much that is distinctive to us as is our experience
of sex. Someone once termed penetration a "peculiarly resented as­
pect" of rape- I don't know whether that meant it was peculiar that
it was resented or that it was resented with heightened peculiarity.
Women who have been raped often do resent having been pene­
trated. But that is not all there is to what was intrusive or expropria­
tive of a woman's sexual wholeness.
I do think the crime of rape focuses more centrally on what men
define as sexuality than on women's experience of our sexual being,
hence its violation. A common experience of rape victims is to be
unable to feel good about anything heterosexual thereafter-or any­
thing sexual at all, or men at all. The minute they start to have sexual
feelings or feel sexually touched by a man, or even a woman, they
start to relive the rape. I had a client who came in with her husband.
She was a rape victim, a woman we had represented as a witness.
Her husband sat the whole time and sobbed. They couldn't have sex
anymore because every time he started to touch her, she would flash
to the rape scene and see his face change into the face of the man

87
Applications

who had raped her. That, to me, is sexual . When a woman has been
raped, and it is sex that she then cannot experience without connect­
ing it to that, it was her sexuality that was violated.
Similarly, men who are in prison for rape think it's the dumbest
thing that ever happened . . . It isn't just a miscarriage of justice; they
were put in jail for something very little different from what most
men do most of the time and call it sex. The only difference is they
got caught. That view is nonremorseful and not rehabilitative. It may
also be true. It seems to me we have here a convergence between the
rapist's view of what he has done and the victim's perspective on
what was done to her. That is, for both, their ordinary experiences of
heterosexual intercourse and the act of rape have something in com­
mon. Now this gets us into intense trouble, because that's exactly
how judges and juries see it who refuse to convict men accused of
rape. A rape victim has to prove that it was not intercourse. She has
to show that there was force and she resisted, because if there was
sex, consent is inferred. Finders of fact look for "more force than
usual during the preliminaries." Rape is defined by distinction from
intercourse-not nonviolence, intercourse . They ask, does this event
look more like fucking or like rape? But what is their standard for
sex, and is this question asked from the woman 's point of view? The
level of force is not adjudicated at her point of violation; it is adjudi­
cated at the standard of, the normal level of force. Who sets this stan­
dard?
In the criminal law, we can't put everybody in jail who does an
ordinary act, right? Crime is supposed to be deviant, not normal.
Women continue not to report rape, and a reason is that they believe,
and they are right, that the legal system will not see it from their
point of view. We get very low conviction rates for rape.1 We also get
many women who believe they have never been raped, although a
lot of force was involved . They mean that they were not raped in a
way that is legally provable. In other words, in all these situations,
there was not enough violence against them to take it beyond the cat­
egory of "sex"; they were not coerced enough. Maybe they were
forced-fucked for years and put up with it, maybe they tried to get it
over with, maybe they were coerced by something other than battery,
something like economics, maybe even something like love.
What I am saying is that unless you make the point that there is
much violence in intercourse, as a usual matter, none of that is
changed. Also we continue to stigmatize the women who claim rape
as having experienced a deviant violation and allow the rest of us to

88
 Sex and Violence

go through life feeling violated but thinking we've never been raped,
when there were a great many times when we, too, have had sex and
didn't want it. What this critique does that is different from the "vio­
lence, not sex" critique is ask a series of questions about normal, het­
erosexual intercourse and attempt to move the line between hetero­
sexuality on the one hand-intercourse-and rape on the other,
rather than allow it to stay where it is.
Having done that so extensively with rape, I can consider sexual
harassment more briefly. The way the analysis of sexual harassment
is sometimes expressed now (and it bothers me) is that it is an abuse
of power, not sexuality. That does not allow us to pursue whether
sexuality, as socially constructed in our society through gender roles,
is itself a power structure. If you look at sexual harassment as power,
not sex, what is power supposed to be? Power is employer/employee,
not because courts are marxist but because this is a recognized hier­
archy. Among men. Power is teacher/student, because courts recog­
nize a hierarchy there. Power is on one side and sexuality on the
other. Sexuality is ordinary affection, everyday flirtation. Only when
ordinary, everyday affection and flirtation and "I was just trying to
be friendly" come into the context of another hierarchy is it considered
potentially an abuse of power. What is not considered to be a hier­
archy is women and men-men on top and women on the bottom.
That is not considered to be a question of power or social hierarchy,
legally or politically. A feminist perspective suggests that it is.
When we have examples of coequal sexual harassment (within
these other hierarchies), worker to worker on the same level, involv­
ing women and men, we have a lot of very interesting, difficult ques­
tions about sex discrimination, which is supposed to be about gender
difference, but does not conceive of gender as a social hierarchy. I
think that implicit in race discrimination cases for a brief moment of
light was the notion that there is a social hierarchy between Blacks
and whites. So that presumptively it's an exercise of power for a
white person to do something egregious to a Black person or for a
white institution to do something egregious systematically to many
Black people. Situations of coequal power-among coworkers or stu­
dents or teachers-are difficult to see as examples of sexual harass­
ment unless you have a notion of male power. I think we lie to
women when we call it not power when a woman is come onto by a
man who is not her employer, not her teacher. What do we labor
under, what do we feel, when a man-any man-comes and hits on
us? I think we require women to feel fine about turning down male-

89
Applications

initiated sex so long as the man doesn't have some other form of
power over us. Whenever-every and any time-a woman feels con­
flicted and wonders what's wrong with her that she can't decline al­
though she has no inclination, and she feels open to male accusa­
tions, whether they come from women or men, of "why didn't you
just tell him to buzz off?" we have sold her out, not named her ex­
perience. We are taught that we exist for men. We should be flattered
or at least act as if we are-be careful about a man's ego because you
never know what he can do to you. To flat out say to him, "You?" or
"I don't want to" is not in most women's sex-role learning. To say it
is, is bravado. And that's because he's a man, not just because you
never know what he can do to you because he's your boss (that's two
things-he's a man and he's the boss) or your teacher or in some
other hierarchy. It seems to me that we haven't talked very much
about gender as a hierarchy, as a division of power, in the way that's
expressed and acted out, primarily I think sexually. And therefore we
haven't expanded the definition according to women's experience of
sexuality, including our own sexual intimidation, of what things are
sexual in this world. So men have also defined what can be called
sexual about us. They say, "I was just trying to be affectionate, flir­
tatious and friendly," and we were just all felt up. We criticize the
idea that rape comes down to her word against his-but it really is
her perspective against his perspective, and the law has been written
from his perspective. If he didn't mean it to be sexual, it's not sexual.
If he didn't see it as forced, it wasn't forced.2 Which is to say, only
male sexual violations, that is, only male ideas of what sexually vio­
lates us as women, are illegal. We buy into this when we say our
sexual violations are abuses of power, not sex.
Just as rape is supposed to have nothing against intercourse, just
as sexual harassment is supposed to have nothing against normal
sexual initiation (men initiate, women consent-that's mutual?), the
idea that pornography is violence against women, not sex, seems to
distinguish artistic creation on the one hand from what is degrading
to women on the other. It is candid and true but not enough to say
of pornography, as Justice Stewart said, "I know it when I see it."3 He
knows what he thinks it is when he sees it-but is that what I know?
Is that the same "it"? Is he going to know what I know when I see it?
I think pretty much not, given what's on the newsstand, given what
is not considered hard-core pornography. Sometimes I think what is
obscene is what does not turn on the Supreme Court-or what re­
volts them more. Which is uncommon, since revulsion is eroticized.

90
 Sex and Violence

We have to admit that pornography turns men on; it is therefore

erotic. It is a lie to say that pornography is not erotic. When we say
it is violence, not sex, we are saying, there is this degrading to
women, over here, and this erotic, over there, without saying to
whom. It is overwhelmingly disproportionately men to whom por­
nography is erotic. It is women, on the whole, to whom it is violent,
among other things. And this is not just a matter of perspective, but
a matter of reality.
Pornography turns primarily men on. Certainly they are getting
something out of it. They pay incredible amounts of money for it; it's
one of the largest industries in the country. If women got as much
out of it as men do, we would buy it instead of cosmetics. It's a mas­
sive industry, cosmetics. We are poor but we have some money; we
are some market. We spend our money to set ourselves up as the
objects that emulate those images that are sold as erotic to men. What
pornography says about us is that we enjoy degradation, that we are
sexually turned on by being degraded. For me that obliterates the
line, as a line at all, between pornography on one hand and erotica
on the other, if what turns men on, what men find beautiful, is what
degrades women. It is pervasively present in art, also, and advertis­
ing. But it is definitely present in eroticism, if that is what it is. It
makes me think that women's sexuality as such is a stigma. We also
sometimes have an experience of sexuality authentic somehow in all
this. We are not allowed to have it; we are not allowed to talk about
it; we are not allowed to speak of it or image it as from our own point
of view. And, to the extent we try to assert that we are beings equal
with men, we have to be either asexual or virgins.
To worry about cooptation is to realize that lies make bad politics.
It is ironic that cooptation often results from an attempt to be "cred­
ible," to be strategically smart, to be "effective" on existing terms.
Sometimes you become what you're fighting. Thinking about issues
of sexual violation as issues of violence not sex could, if pursued le­
gally, lead to opposing sexual harassment and pornography through
morals legislation and obscenity laws. It is actually interesting that
this theoretical stance has been widely embraced but these legal strat­
egies have not been. Perhaps women realize that these legal ap­
proaches would not address the subordination of women to men,
specifically and substantively. These approaches are legally as ab­
stract as the "violence not sex" critique is politically abstract. They
are both not enough and too much of the wrong thing. They deflect
us from criticizing everyday behavior that is pervasive and normal

91
Applications

and concrete and fuses sexuality with gender in violation and is not
amenable to existing legal approaches. I think we need to think more
radically in our legal work here.
Battering is called violence, rather than something sex-specific: this
is done to women. I also think it is sexually done to women. Not only
in where it is done-over half of the incidents are in the bedroom. 4
Or the surrounding events-precipitating sexual jealousy. But when
violence against women is eroticized as it is in this culture, it is very
difficult to say that there is a major distinction in the level of sex
involved between being assaulted by a penis and being assaulted by
a fist, especially when the perpetrator is a man. If women as gender
female are defined as sexual beings, and violence is eroticized, then
men violating women has a sexual component. I think men rape
women because they get off on it in a way that fuses dominance with
sexuality. (This is different in emphasis from what Susan Brownmiller
says. )5 I think that when men sexually harass women it expresses
male control over sexual access to us. It doesn't mean they all want
to fuck us, they just want to hurt us, dominate us, and control us,
and that is fucking us. They want to be able to have that and to be
able to say when they can have it, to know that. That is in itself erotic.
The idea that opposing battering is about saving the family is, simi­
larly, abstracted, gender-neutral. There are gender-neutral formula­
tions of all these issues: law and order as opposed to derepression,
Victorian morality as opposed to permissiveness, obscenity as op­
posed to art and freedom of expression. Gender-neutral, objective
formulations like these avoid asking whose expression, from whose
point of view? Whose law and whose order? It's not just a question
of who is free to express ourselves; it's not just that there is almost
no, if any, self-respecting women's eroticism. The fact is that what we
do see, what we are allowed to experience, even in our own suffer­
ing, even in what we are allowed to complain about, is overwhelm­
ingly constructed from the male point of view. Laws against sexual
violation express what men see and do when they engage in sex with
women; laws against obscenity center on the display of women's bod­
ies in ways that men are turned on by viewing. To me, it not only
makes us cooptable to define such abuses in gender-neutral terms
like violence; when we fail to assert that we are fighting for the
affirmative definition and control of our own sexuality, of our own
lives as women, and that these experiences violate that, we have al­
ready been bought.

92
eight
Privacy v. Equality:
Beyond Roe v. Wade
(1983)
In a society where women entered sexual intercourse willingly, where ade­
quate contraception was a genuine social priority, there would be no "abor­
tion issue" . . . Abortion is violence . . . It is the offspring, and will continue
to be the accuser of a more pervasive and prevalent violence, the violence of
rapism.
Adrienne Rich, Of Woman Born (1976)

R
oe v. Wade1 guaranteed the right to choose abortion, subject

to some countervailing considerations, by conceiving it as a

private choice, included in the constitutional right to privacy.
In this critique of that decision, I first situate abortion and the abor­
tion right in the experience of women. The argument is that abortion
is inextricable from sexuality, assuming that the feminist analysis of
sexuality is our analysis of gender inequality. I then criticize the doc­
trinal choice to pursue the abortion right under the law of privacy.
The argument is that privacy doctrine reaffirms and reinforces what
the feminist critique of sexuality criticizes: the public/private split.
The political and ideological meaning of privacy as a legal doctrine is
connected with the concrete consequences of the public/private split
for the lives of women. This analysis makes Harris v . McRae/ in
which public funding for abortions was held not to be required, ap­
pear consistent with the larger meaning of Roe.
I will neglect two important explorations, which I bracket now. The
first is: what are babies to men? On one level, men respond to wom­
en's rights to abort as if confronting the possibility of their own po­
tential nonexistence-at women's hands, no less. On another level,
men's issues of potency, of continuity as a compensation for mortality,
of the thrust to embody themselves or their own image in the world,
underlie their relation to babies (as well as to most else). To overlook

I discussed these ideas at the Conference on Persons, Morality, and Abortion, Hamp­
shire College, Amherst, Massachusetts, Jan. 21, 1983, and at the Planned Parenthood
Conference, "Who Governs Reproduction?" New Haven, Connecticut, Nov. 2, 1985.

93
Applications

these meanings of abortion to men as men is to overlook political and

strategic as well as fundamental theoretical issues and to misassess
where much of the opposition to abortion is coming from. The sec­
ond issue I bracket is one that, unlike the first, has been discussed
extensively in the abortion debate: the moral rightness of abortion
itself. My stance is that the abortion choice must be legally available
and must be women's, but not because the fetus is not a form of life.
In the usual argument, the abortion decision is made contingent on
whether the fetus is a form of life. I cannot follow that. Why should
women not make life or death decisions? This returns us to the first
bracketed issue.
The issues I will explore have largely not been discussed in the
terms I will use. Instead, I think, women's embattled need to survive
in a world hostile to our survival has precluded our exploring these
issues as I am about to. That is, the perspective from which we have
addressed abortion has been shaped and constrained by the very sit­
uation that the abortion issue puts us in and requires us to address.
We have not been able to risk thinking about these issues on our own
terms because the terms have not been ours. The attempt to grasp
women's situation on our own terms, from our own point of view,
defines the feminist impulse. If doing that is risky, our situation also
makes it risky not to. So, first feminism, then law.
Most women who seek abortions became pregnant while having
sexual intercourse with men. Most did not mean or wish to conceive.
In contrast to this fact of women's experience, which converges sex­
uality with reproduction with gender, the abortion debate has cen­
tered on separating control over sexuality from control over repro­
duction, and on separating both from gender and the life options of
the sexes. Liberals have supported the availability of the abortion
choice as if the woman just happened on the fetus. 3 The political
right, imagining that the intercourse preceding conception is usually
voluntary, urges abstinence, as if sex were up to women, while de­
fending male authority, specifically including a wife's duty to submit
to sex. Continuing with this logic, many opponents of state funding
of abortions, such as supporters of some versions of the Hyde
Amendment, would permit funding of abortions when pregnancy
results from rape or incest.4 They make exceptions for those special
occasions during which they presume women did not control sex.
From all this I deduce that abortion's proponents and opponents
share a tacit assumption that women significantly do control sex.
Feminist investigations suggest otherwise. Sexual intercourse, still

94
 Privacy v. Equality

the most common cause of pregnancy, cannot simply be presumed

coequally determined. Feminism has found that women feel com­
pelled to preserve the appearance-which, acted upon, becomes the
reality-of male direction of sexual expression, as if male initiative
itself were what we want, as if it were that which turns us on. Men
enforce this. It is much of what men want in a woman. It is what
pornography eroticizes and prostitutes provide. Rape-that is, inter­
course with force that is recognized as force-is adjudicated not ac­
cording to the power or force that the man wields, but according to
indices of intimacy between the parties. The more intimate you are
with your accused rapist, the less likely a court is to find that what
happened to you was rape. Often indices of intimacy include inter­
course itself. If "no" can be taken as "yes," how free can "yes" be?
Under these conditions, women often do not use birth control be­
cause of its social meaning, a meaning we did not create. Using con­
traception means acknowledging and planning the possibility of
intercourse, accepting one's sexual availability, and appearing non­
spontaneous. It means appearing available to male incursions. A
good user of contraception can be presumed sexually available and,
among other consequences, raped with relative impunity. (If you
think this isn't true, you should consider rape cases in which the fact
that a woman had a diaphragm in is taken as an indication that what
happened to her was intercourse, not rape. "Why did you have your
diaphragm in?") From studies of abortion clinics, women who re­
peatedly seek abortions (and now I'm looking at the repeat offenders
high on the list of the right's villains, their best case for opposing
abortion as female irresponsibility), when asked why, say something
like, "The sex just happened." Like every night for two and a half
years. 5 I wonder if a woman can be presumed to control access to her
sexuality if she feels unable to interrupt intercourse to insert a dia­
phragm; or worse, cannot even want to, aware that she risks a preg­
nancy she knows she does not want. Do you think she would stop
the man for any other reason, such as, for instance, the real taboo­
lack of desire? If she would not, how is sex, hence its consequences,
meaningfully voluntary for women? Norms of sexual rhythm and ro­
mance that are felt interrupted by women's needs are constructed
against women's interests. Sex doesn't look a whole lot like freedom
when it appears normatively less costly for women to risk an unde­
sired, often painful, traumatic, dangerous, sometimes illegal, and po­
tentially life-threatening procedure than to protect themselves in ad­
vance. Yet abortion policy has never been explicitly approached in

95
Applications

the context of how women get pregnant, that is, as a consequence of

intercourse under conditions of gender inequality; that is, as an issue
of forced sex.
Now, law. In 1973 Roe v. Wade found that a statute that made crim­
inal all abortions except those to save the life of the mother violated
the constitutional right to privacy.6 The privacy right had been pre­
viously created as a constitutional principle in a case that decrimin­
alized the prescription and use of contraceptives.7 Note that courts
use the privacy rubric to connect contraception with abortion through
privacy in the same way that I just did through sexuality. In Roe that
right to privacy was found "broad enough to encompass a woman's
decision whether or not to terminate her pregnancy." In 1977 three
justices observed, "In the abortion context, we have held that the
right to privacy shields the woman from undue state intrusion in and
external scrutiny of her very personal choice." 8
In 1981 the Supreme Court in Harris v. McRae decided that this
right to privacy did not mean that federal Medicaid programs had to
fund medically necessary abortions. Privacy, the Court had said, was
guaranteed for "a woman's decision whether or not to terminate her
pregnancy." The Court then permitted the government to support
one decision and not another: to fund continuing conceptions and
not to fund discontinuing them. Asserting that decisional privacy
was nevertheless constitutionally intact, the Court stated that "al­
though the government may not place obstacles in the path of a wom­
an's exercise of her freedom of choice, it need not remove those not
of its own creation."9 It is apparently a very short step from that
which the government has a duty not to intervene in to that which it
has no duty to intervene in.
The idea of privacy, if regarded as the outer edge of the limitations
on government, embodies, I think, a tension between the preclusion
of public exposure or governmental intrusion, on the one hand, and
autonomy in the sense of protecting personal self-action on the other.
This is a tension, not just two facets of one whole right. In the liberal
state this tension is resolved by demarking the threshold of the state
at its permissible extent of penetration into a domain that is consid­
ered free by definition: the private sphere. It is by this move that the
state secures to individuals what has been termed "an inviolable per­
sonality" by ensuring what has been called "autonomy or control
over the intimacies of personal identity."10 The state does this by cen­
tering its self-restraint on body and home, especially bedroom. By
staying out of marriage and the family, prominently meaning sexual-

96
 Privacy v. Equality

ity-that is to say; heterosexuality-from contraception through por­

nography to the abortion decision, the law of privacy proposes to
guarantee individual bodily integrity; personal exercise of moral in­
telligence, and freedom of intimacy.11 But if one asks whether women's
rights to these values have been guaranteed, it appears that the law
of privacy works to translate traditional social values into the rhetoric
of individual rights as a means of subordinating those rights to spe­
cific social imperatives.12 In feminist terms, I am arguing that the logic
of Roe consummated in Harris translates the ideology of the private
sphere into the individual woman's legal right to privacy as a means
of subordinating women's collective needs to the imperatives of male
supremacy.
This is my retrospective on Roe v . Wade . Reproduction is sexual,
men control sexuality; and the state supports the interest of men as a
group. Roe does not contradict this. So why was abortion legalized?
Why were women even imagined to have such a right as privacy? It
is not an accusation of bad faith to answer that the interests of men
as a social group converged with the definition of justice embodied
in law in what I call the male point of view. The way the male point
of view constructs a social event or legal need will be the way that
social event or legal need is framed by state policy. For example, to
the extent that possession is the point of sex, illegal rape will be sex
with a woman who is not yours unless the act makes her yours. If
part of the kick of pornography involves eroticizing the putatively
prohibited, illegal pornography-obscenity-will be prohibited
enough to keep pornography desirable without ever making it truly
illegitimate or unavailable. If, from the male standpoint, male is the
implicit definition of human, maleness will be the implicit standard
by which sex equality is measured in discrimination law. In parallel
terms, abortion's availability frames, and is framed by; the conditions
men work out among themselves to grant legitimacy to women to
control the reproductive consequences of intercourse.
Since Freud, the social problem posed by sexuality has been per­
ceived as the problem of the innate desire for sexual pleasure being
repressed by the constraints of civilization. In this context, the in­
equality of the sexes arises as an issue only in women's repressive
socialization to passivity and coolness (so-called frigidity), in wom­
en's so-called desexualization, and in the disparate consequences of
biology, that is, pregnancy. Who defines what is sexual, what sexual­
ity therefore is, to whom what stimuli are erotic and why; and who
defines the conditions under which sexuality is expressed-these is-

97
Applications

sues are not even available to be considered. "Civilization's" answer

to these questions fuses women's reproductivity with our attributed
sexuality in its definition of what a woman is. We are defined as
women by the uses to which men put us. In this context it becomes
clear why the struggle for reproductive freedom has never included
a woman's right to refuse sex. In this notion of sexual liberation, the
equality issue has been framed as a struggle for women to have sex
with men on the same terms as men: "without consequences." In this
sense the abortion right has been sought as freedom from the repro­
ductive consequences of sexual expression, with sexuality defined as
centered on heterosexual genital intercourse. It is as if biological or­
ganisms, rather than social relations, reproduced the species. But if
your concern is not how more people can get more sex, but who
defines sexuality-pleasure and violation both-then the abortion
right is situated within a very different problematic: the social and
political problematic of the inequality of the sexes. As Susan Sontag
said, "Sex itself is not liberating for women. Neither is more sex . . .
The question is, what sexuality shall women be liberated to enjoy?" 13
To address this requires reformulating the problem of sexuality from
the repression of drives by civilization to the oppression of women
by men.
Arguments for abortion under the rubric of feminism have rested
upon the right to control one's own body-gender neutral. I think
that argument has been appealing for the same reasons it is inade­
quate: socially, women's bodies have not been ours; we have not con­
trolled their meanings and destinies. Feminists tried to assert that
control without risking pursuit of the idea that something more
might be at stake than our bodies, something closer to a net of rela­
tions in which we are (at present unescapably) gendered.14 Some
feminists have noticed that our right to decide has become merged
with the right of an overwhelmingly male profession's right not to
have its professional judgment second-guessed by the government.15
But most abortion advocates argue in rigidly and rigorously gender­
neutral terms.
Thus, for instance, Judith Jarvis Thomson's argument that an ab­
ducted woman had no obligation to be a celebrated violinist's life sup­
port system meant that women have no obligation to support a fe­
tus.16 The parallel seems misframed. No woman who needs an
abortion-no woman, period-is valued, no potential a woman's life
might hold is cherished, like a gender-neutral famous violinist's
unencumbered possibilities. The problems of gender are thus under-

98
 Privacy v. Equality

lined here rather than solved, or even addressed. Too, the underlying
recognition in the parallel of the origin of the problem in rape-the
origin in force, in abduction, that gives the hypothetical much of its
moral weight-would confine abortions to instances in which force
is recognized as force, like rape or incest. The applicability of this to
the normal case of abortion is neither embraced nor disavowed, al­
though the parallel was meant to apply to the normal case, as is abor­
tion policy, usually. This parable is constructed precisely to begin the
debate after sex occurred, yet even it requires discussion of inter­
course in relation to rape in relation to conception, in order to make
sense. Because this issue has been studiously avoided in the abortion
context, the unequal basis on which woman's personhood is being
constructed is obscured.
In the context of a sexual critique of gender inequality, abortion
promises to women sex with men on the same reproductive terms as
men have sex with women. So long as women do not control access
to our sexuality, abortion facilitates women's heterosexual availability.
In other words, under conditions of gender inequality, sexual libera­
tion in this sense does not free women; it frees male sexual aggres­
sion. The availability of abortion removes the one remaining legiti­
mized reason that women have had for refusing sex besides the
headache. As Andrea Dworkin put it, analyzing male ideology on
abortion, "Getting laid was at stake." 17 The Playboy Foundation has
supported abortion rights from day one; it continues to, even with
shrinking disposable funds, on a level of priority comparable to that
of its opposition to censorship.
Privacy doctrine is an ideal vehicle for this process. The liberal ideal
of the private-and privacy as an ideal has been formulated in liberal
terms-holds that, so long as the public does not interfere, autono­
mous individuals interact freely and equally. Conceptually, this pri­
vate is hermetic. It means that which is inaccessible to, unaccountable
to, unconstructed by anything beyond itself. By definition, it is not
part of or conditioned by anything systematic or outside of it. It is
personal, intimate, autonomous, particular, individual, the original
source and final outpost of the self, gender neutral. It is, in short,
defined by everything that feminism reveals women have never been
allowed to be or to have, and everything that women have been
equated with and defined in terms of men's ability to have. To com­
plain in public of inequality within it contradicts the liberal definition
of the private. In this view, no act of the state contributes to-hence
should properly participate in-shaping the internal alignments of

99
Applications

the private or distributing its internal forces. Its inviolability by the

state, framed as an individual right, presupposes that the private is
not already an arm of the state. In this scheme, intimacy is implicitly
thought to guarantee symmetry of power. Injuries arise in violating
the private sphere, not within and by and because of it.
In private, consent tends to be presumed. It is true that a showing
of coercion voids this presumption. But the problem is getting any­
thing private to be perceived as coercive. Why one would allow force
in private-the "why doesn't she leave" question asked of battered
women-is a question given its urgency by the social meaning of the
private as a sphere of choice. But for women the measure of the in­
timacy has been the measure of the oppression. This is why feminism
has had to explode the private. This is why feminism has seen the
personal as the political. The private is the public for those for whom
the personal is the political. In this sense, there is no private, either
normatively or empirically. Feminism confronts the fact that women
have no privacy to lose or to guarantee. We are not inviolable. Our
sexuality is not only violable, it is-hence, we are-seen in and as
our violation. To confront the fact that we have no privacy is to con­
front the intimate degradation of women as the public order.
In this light, a right to privacy looks like an injury got up as a gift.
Freedom from public intervention coexists uneasily with any right
that requires social preconditions to be meaningfully delivered. For
example, if inequality is socially pervasive and enforced, equality will
require intervention, not abdication, to be meaningful. But the right
to privacy is not thought to require social change. It is not even
thought to require any social preconditions, other than noninterven­
tion by the public. The point of this for the abortion cases is not that
indigency-which was the specific barrier to effective choice in Har­
ris is well within the public power to remedy, nor that the state is
-

exempt in issues of the distribution of wealth. The point is rather that

Roe v. Wade presumes that government nonintervention into the pri­
vate sphere promotes a woman's freedom of choice. When the alter­
native is jail, there is much to be said for this argument. But the Harris
result sustains the ultimate meaning of privacy in Roe: women are
guaranteed by the public no more than what we can get in private­
that is, what we can extract through our intimate associations with
men. Women with privileges get rights.
So women got abortion as a private privilege, not as a public right.
We got control over reproduction that is controlled by "a man or The
Man," an individual man or the doctors or the government. Abortion

100
 Privacy v. Equality

was not decriminalized; it was legalized. In Roe the government set

the stage for the conditions under which women gain access to this
right. Virtually every ounce of control that women won out of this
legalization has gone directly into the hands of men-husbands, doc­
tors, or fathers-or is now in the process of attempts to reclaim it
through regulation. 18 This, surely, must be what is meant by reform.
It is not inconsistent, then, that framed as a privacy right, a wom­
an's decision to abort would have no claim on public support and
would genuinely not be seen as burdened by that deprivation. Pri­
vacy conceived as a right against public intervention and disclosure
is the opposite of the relief that Harris sought for welfare women.
State intervention would have provided a choice women did not have
in private. The women in Harris, women whose sexual refusal has
counted for particularly little, needed something to make their pri­
vacy effective. 19 The logic of the Court's response resembles the logic
by which women are supposed to consent to sex. Preclude the alter­
natives, then call the sole remaining option "her choice." The point
is that the alternatives are precluded prior to the reach of the chosen
legal doctrine. They are precluded by conditions of sex, race, and
class-the very conditions the privacy frame not only leaves tacit but
exists to guarantee.
When the law of privacy restricts intrusions into intimacy, it bars
change in control over that intimacy. The existing distribution of
power and resources within the private sphere will be precisely what
the law of privacy exists to protect. It is probably not coincidence that
the very things feminism regards as central to the subjection of
women-the very place, the body; the very relations, heterosexual;
the very activities, intercourse and reproduction; and the very feel­
ings, intimate-form the core of what is covered by privacy doctrine.
From this perspective, the legal concept of privacy can and has
shielded the place of battery, marital rape, and women's exploited
labor; has preserved the central institutions whereby women are de­
prived of identity, autonomy, control and self-definition; and has pro­
tected the primary activity through which male supremacy is ex­
pressed and enforced. Just as pornography is legally protected as
individual freedom of expression-without questioning whose free­
dom and whose expression and at whose expense-abstract privacy
protects abstract autonomy, without inquiring into whose freedom of
action is being sanctioned at whose expense.
To fail to recognize the meaning of the private in the ideology and
reality of women's subordination by seeking protection behind a right

101
Applications

to that privacy is to cut women off from collective verification and

state support in the same act. I think this has a lot to do with why
we can't organize women on the abortion issue. When women are
segregated in private, separated from each other, one at a time, a
right to that privacy isolates us at once from each other and from
public recourse. This right to privacy is a right of men "to be let
alone"20 to oppress women one at a time. It embodies and reflects the
private sphere's existing definition of womanhood. This is an in­
stance of liberalism called feminism, liberalism applied to women as
if we are persons, gender neutral. It reinforces the division between
public and private that is not gender neutral. It is at once an ideolog­
ical division that lies about women's shared experience and that mys­
tifies the unity among the spheres of women's violation. It is a very
material division that keeps the private beyond public redress and
depoliticizes women's subjection within it. It keeps some men out of
the bedrooms of other men.21

102
mne

Sexual Harassment:
Its First Decade in Court
(1986)

S
exual harassment, the event, is not new to women. It is the
law of injuries that it is new to. Sexual pressure imposed on
someone who is not in an economic position to refuse it be­
came sex discrimination in the midseventies,1 and in education soon
afterward.2 It became possible to do something legal about sexual
harassment because some women took women's experience of viola­
tion seriously enough to design a law around it, as if what happens
to women matters. This was apparently such a startling way of pro­
ceeding that sexual harassment was protested as a feminist inven­
tion. Sexual harassment, the event, was not invented by feminists;
the perpetrators did that with no help from us. Sexual harassment,
the legal claim-the idea that the law should see it the way its victims
see it-is definitely a feminist invention. Feminists first took women's
experience seriously enough to uncover this problem and concep­
tualize it and pursue it legally. That legal claim is just beginning to
produce more than a handful of reported cases. Ten years later, "[i]t
may well be that sex harassment is the hottest present day Title VII
issue."3 1t is time for a down-the-road assessment of this departure.
The law against sexual harassment is a practical attempt to stop a
form of exploitation. It is also one test of sexual politics as feminist
jurisprudence, of possibilities for social change for women through
law. The existence of a law against sexual harassment has affected
both the context of meaning within which social life is lived and the
concrete delivery of rights through the legal system. The sexually

The original version of this speech was part of a panel on sexual harassment shared
with Karen Haney, Pamela Price, and Peggy McGuiness at Stanford University, Stan­
ford, California, Apr. 12, 1983. It thereafter became an address to the Equal Employ­
ment Opportunities Section of the American Bar Association, New Orleans, Louisiana,
May 3, 1984 and to a workshop for the national conference of the National Organiza­
tion for Women, Denver, Colorado, June 14, 1986. The ideas developed further when
I represented Mechelle Vinson as co-counsel in her U.S. Supreme Court case in the
spring of 1986. I owe a great deal to my conversations with Valerie Heller.

103
Applications

harassed have been given a name for their suffering and an analysis
that connects it with gender. They have been given a forum, legiti­
macy to speak, authority to make claims, and an avenue for pos­
sible relief. Before, what happened to them was all right. Now it is
not.
This matters. Sexual abuse mutes victims socially through the vio­
lation itself. Often the abuser enforces secrecy and silence; secrecy
and silence may be part of what is so sexy about sexual abuse. When
the state also forecloses a validated space for denouncing and recti­
fying the victimization, it seals this secrecy and reenforces this si­
lence. The harm of this process, a process that utterly precludes
speech, then becomes all of a piece. If there is no right place to go to
say, this hurt me, then a woman is simply the one who can be treated
this way, and no harm, as they say, is done.
In point of fact, I would prefer not to have to spend all this energy
getting the law to recognize wrongs to women as wrong. But it seems
to be necessary to legitimize our injuries as injuries in order to de­
legitimize our victimization by them, without which it is difficult to
move in more positive ways. The legal claim for sexual harassment
made the events of sexual harassment illegitimate socially as well as
legally for the first time. Let me know if you figure out a better way
to do that.
At this interface between law and society, we need to remember
that the legitimacy courts give they can also take. Compared with a
possibility of relief where no possibility of relief existed, since women
started out with nothing in this area, this worry seems a bit fancy.
Whether the possibility of relief alters the terms of power that gives
rise to sexual harassment itself, which makes getting away with it
possible, is a different problem. Sexual harassment, the legal claim,
is a demand that state authority stand behind women's refusal of sex­
ual access in certain situations that previously were a masculine pre­
rogative. With sexism, there is always a risk that our demand for self­
determination will be taken as a demand for paternal protection and
will therefore strengthen male power rather than undermine it. This
seems a particularly valid concern because the law of sexual harass­
ment began as case law, without legislative guidance or definition.
Institutional support for sexual self-determination is a victory; in­
stitutional paternalism reinforces our lack of self-determination. The
problem is, the state has never in fact protected women's dignity or
bodily integrity. It just says it does. Its protections have been both
condescending and unreal, in effect strengthening the protector's

104
 Sexual Harassment

choice to violate the protected at will, whether the protector is the

individual perpetrator or the state. This does not seem to me a reason
not to have a law against sexual harassment. It is a reason to demand
that the promise of "equal protection of the laws" be delivered upon
for us, as it is when real people are violated. It is also part of a larger
political struggle to value women more than the male pleasure of
using us is valued. Ultimately, though, the question of whether the
use of the state for women helps or hurts can be answered only in
practice, because so little real protection of the laws has ever been
delivered.
The legal claim for sexual harassment marks the first time in his­
tory, to my knowledge, that women have defined women's injuries
in a law. Consider what has happened with rape. We have never de­
fined the injury of rape; men define it. The men who define it, define
what they take to be this violation of women according to, among
other things, what they think they don't do. In this way rape becomes
an act of a stranger (they mean Black) committed upon a woman
(white) whom he has never seen before. Most rapes are intraracial
and are committed by men the women know. 4 Ask a woman if she
has ever been raped, and often she says, "Well . . . not really." In that
silence between the well and the not really, she just measured what
happened to her against every rape case she ever heard about and
decided she would lose in court. Especially when you are part of a
subordinated group, your own definition of your injuries is power­
fully shaped by your assessment of whether you could get anyone to
do anything about it, including anything official. You are realistic by
necessity, and the voice of law is the voice in power. When the design
of a legal wrong does not fit the wrong as it happens to you, as is the
case with rape, that law can undermine your social and political as
well as legal legitimacy in saying that what happened was an injury
at all-even to yourself.
It is never too soon to worry about this, but it may be too soon to
know whether the law against sexual harassment will be taken away
from us or turn into nothing or turn ugly in our hands. The fact is,
this law is working surprisingly well for women by any standards,
particularly when compared with the rest of sex discrimination law.
If the question is whether a law designed from women's standpoint
and administered through this legal system can do anything for
women-which always seems to me to be a good question-this ex­
perience so far gives a qualified and limited yes.
It is hard to unthink what you know, but there was a time when

105
Applications

the facts that amount to sexual harassment did not amount to sexual
harassment. It is a bit like the injuries of pornography until recently.
The facts amounting to the harm did not socially "exist," had no
shape, no cognitive coherence; far less did they state a legal claim. It
just happened to you. To the woinen to whom it happened, it wasn't
part of anything, much less something big or shared like gender. It
fit no known pattern. It was neither a regularity nor an irregularity.
Even social scientists didn't study it, and they study anything that
moves. When law recognized sexual harassment as a practice of sex
discrimination, it moved it from the realm of "and then he . . . and
then he . . . ," the primitive language in which sexual abuse lives
inside a woman, into an experience with a form, an etiology, a cu­
mulativeness-as well as a club.
The shape, the positioning, and the club-each is equally crucial
politically. Once it became possible to do something about sexual
harassment, it became possible to know more about it, because it
became possible for its victims to speak about it. Now we know, as
we did not when it first became illegal, that this problem is common­
place. We know this not just because it has to be true, but as docu­
mented fact. Between a quarter and a third of women in the federal
workforce report having been sexually harassed, many physically, at
least once in the last two years. 5 Projected, that becomes 85 percent
of all women at some point in their working lives. This figure is based
on asking women "Have you ever been sexually harassed?"-the
conclusion-not "has this fact happened? has that fact happened?"
which usually produces more. The figures for sexual harassment of
students are comparable.6
When faced with individual incidents of sexual harassment, the
legal system's first question was, is it a personal episode? Legally, this
was a way the courts inquired into whether the incidents were based
on sex, as they had to be to be sex discrimination. Politically, it was
a move to isolate victims by stigmatizing them as deviant. It also
seemed odd to me that a relationship was either personal or gen­
dered, meaning that one is not a woman personally. Statistical fre­
quency alone does not make an event not personal, of course, but
the presumption that sexual pressure in contexts of unequal power
is an isolated idiosyncrasy to unique individual victims has been un­
dermined both by the numbers and by their division by gender.
Overwhelmingly, it is men who sexually harass women, a lot of them.
Actually, it is even more accurate to say that men do this than to say

106
 Sexual Harassment

that women have this done to them. This is a description of the per­
petrators' behavior, not of the statisticians' feminism.
Sexual harassment has also emerged as a creature of hierarchy. It
inhabits what I call hierarchies among men: arrangements in which
some men are below other men, as in employer/employee and
teacher/student. In workplaces, sexual harassment by supervisors of
subordinates is common; in education, by administrators of lower­
level administrators, by faculty of students. But it also happens
among coworkers, from third parties, even by subordinates in the
workplace, men who are women's hierarchical inferiors or peers. Ba­
sically, it is done by men to women regardless of relative position on
the formal hierarchy. I believe that the reason sexual harassment was
first established as an injury of the systematic abuse of power in hier­
archies among men is that this is power men recognize. They com­
prehend from -personal experience that something is held over your
head if you do not comply. The lateral or reverse hierarchical ex­
amples7 suggest something beyond this, something men don't under­
stand from personal experience because they take its advantages for
granted: gender is also a hierarchy. The courts do not use this anal­
ysis, but some act as though they understand it. 8
Sex discrimination law had to adjust a bit to accommodate the re­
alities of sexual harassment. Like many other injuries of gender, it
wasn't written for this. For something to be based on gender in the
legal sense means it happens to a woman as a woman, not as an
individual. Membership in a gender is understood as the opposite of,
rather than part of, individuality. Clearly, sexual harassment is one of
the last situations in which a woman is treated without regard to her
sex; it is because of her sex that it happens. But the social meaning
attributed to women as a class, in which women are defined as gen­
der female by sexual accessibility to men, is not what courts have
considered before when they have determined whether a given in­
cident occurred because of sex.
Sex discrimination law typically conceives that something happens
because of sex when it happens to one sex but not the other. The
initial procedure is arithmetic: draw a gender line and count how
many of each are on each side in the context at issue, or, alternatively,
take the line drawn by the practice or policy and see if it also divides
the sexes. One by-product of this head-counting method is what I
call the bisexual defense.9 Say a man is accused of sexually harassing
a woman. He can argue that the harassment is not sex-based because

107
Applications

he harasses both sexes equally, indiscriminately as it were. Originally

it was argued that sexual harassment was not a proper gender claim
because someone could harass both sexes. We argued that this was
an issue of fact to be pleaded and proven, an issue of did he do this,
rather than an issue of law, of whether he could have. The courts
accepted that, creating this kamikaze defense. To my knowledge, no
one has used the bisexual defense since. 10 As this example suggests,
head counting can provide a quick topography of the terrain, but it
has proved too blunt to distinguish treatment whose meaning is
based on gender from treatment that has other social hermeneutics,
especially when only two individuals are involved.
Once sexual harassment was established as bigger than personal,
the courts' next legal question was whether it was smaller than bio­
logical. To say that sexual harassment was biological seemed to me a
very negative thing to say about men, but defendants seemed to
think it precluded liability. Plaintiffs argued that sexual harassment is
not biological in that men who don't do it have nothing wrong with
their testosterone levels. Besides, if murder were found to have bio­
logical correlates, it would still be a crime. Thus, although the ques­
tion purported to be whether the acts were based on sex, the implicit
issue seemed to be whether the source of the impetus for doing the
acts was relevant to their harmfulness.
Similarly structured was the charge that women who resented sex­
ual harassment were oversensitive. Not that the acts did not occur,
but rather that it was unreasonable to experience them as harmful.
Such a harm would be based not on sex but on individual hysteria.
Again shifting the inquiry away from whether the acts are based on
sex in the guise of pursuing it, away from whether they occurred to
whether it should matter if they did, the question became whether
the acts were properly harmful. Only this time it was not the perpe­
trator's drives that made him not liable but the target's sensitivity that
made the acts not a harm at all. It was pointed out that too many
people are victimized by sexual harassment to consider them all hys­
terics. Besides, in other individual injury law, victims are not blamed;
perpetrators are required to take victims as they find them, so long
as they are not supposed to be doing what they are doing.
Once these excuses were rejected, then it was said that sexual
harassment was not really an employment-related problem. That be­
came hard to maintain when it was her job the woman lost. If it was,
in fact, a personal relationship, it apparently did not start and stop
there, although this is also a question of proof, leaving the true mean-

108
 Sexual Harassment

ing of the events to trial. The perpetrator may have thought it was all
affectionate or friendly or fun, but the victim experienced it as hate­
ful, dangerous, and damaging. Results in such cases have been
mixed. Some judges have accepted the perpetrator's view; for in­
stance, one judge held queries by the defendant such as "What am I
going to get for this?" and repeated importunings to "go out" to be
"susceptible of innocent interpretation." 11 Other judges, on virtually
identical facts, for example, "When are you going to do something
nice for me?"12 have held for the plaintiff. For what it's worth, the
judge in the first case was a man, in the second a woman.
That sexual harassment is sex-based discrimination seems to be le­
gally established, at least for now. 13 In one of the few recent cases
that reported litigating the issue of sex basis, defendants argued that
a sex-based claim was not stated when a woman worker complained
of terms of abuse directed at her at work such as "slut," "bitch," and
"fucking cunt" and "many sexually oriented drawings posted on pil­
lars and at other conspicuous places around the warehouse" with
plaintiffs' initials on them, presenting her having sex with an ani­
mal.14 The court said: "[T]he sexually offensive conduct and language
used would have been almost irrelevant and would have failed en­
tirely in its crude purpose had the plaintiff been a man. I do not hes­
itate to find that but for her sex, the plaintiff would not have been
subjected to the harassment she suffered."15 "Obvious" or "patently
obvious" they often call it.16 I guess this is what it looks like to have
proven a point.
Sexual harassment was first recognized as an injury of gender in
what I called incidents of quid pro quo. Sometimes people think that
harassment has to be constant. It doesn't; it's a term of art in which
once can be enough. Typically, an advance is made, rejected, and a
loss follows.17 For a while it looked as if this three-step occurrence
was in danger of going from one form in which sexual harassment
can occur into a series of required hurdles. In many situations the
woman is forced to submit instead of being able to reject the advance.
The problem has become whether, say, being forced into intercourse
at work will be seen as a failed quid pro quo or as an instance of
sexual harassment in which the forced sex constitutes the injury.
I know of one reported case in employment and one in education
in which women who were forced to submit to the sex brought a
sexual harassment claim against the perpetrator; so far only the edu­
cation case has won on the facts. 18 The employment case that lost on
the facts was reversed on appeal. The pressures for sex were seen to

109
Applications

state a claim without respect to the fact that the woman was not able
to avoid complying.19 It is unclear if the unwanted advances consti­
tute a claim, separate and apart from whether or not they are able to
be resisted, which they should; or if the acts of forced sex would also
constitute an environmental claim separate from any quid pro quo,
as it seems to me they also should. In the education case, the case of
Paul Mann, the students were allowed to recover punitive damages
for the forced sex.20 If sexual harassment is not to be defined only as
sexual attention imposed upon someone who is not in a position to
refuse it, who refuses it, women who are forced to submit to sex must
be understood as harmed not less, but as much or more, than those
who are able to make their refusals effective.
Getting recoveries for women who have actually been sexually vio­
lated by the defendant will probably be a major battle. Women being
compensated in money for sex they had violates male metaphysics
because in that system sex is what a woman is for. As one judge
concluded, " [T]here does not seem to be any issue that the plaintiff
did not desire to have relations with [the defendant], but it is also
altogether apparent that she willingly had sex with him."21 Now what
do you make of that? The woman was not physically forced at the
moment of penetration, and since it is sex she must have willed it, is
about all you can make of it. The sexual politics of the situation is
that men do not see a woman who has had sex as victimized, what­
ever the conditions. One dimension of this problem involves whether
a woman who has been violated through sex has any credibility.
Credibility is difficult to separate from the definition of the injury,
since an injury in which the victim is not believed to have been in­
jured because she has been injured is not a real injury, legally speaking.
The question seems to be whether a woman is valuable enough to
hurt, so that what is done to her is a harm. Once a woman has had
sex, voluntarily or by force-it doesn't matter-she is regarded as too
damaged to be further damageable, or something. Many women who
have been raped in the course of sexual harassment have been ad­
vised by their lawyers not to mention the rape because it would de­
stroy their credibility! The fact that abuse is long term has suggested
to some finders of fact that it must have been tolerated or even
wanted, although sexual harassment that becomes a condition of
work has also been established as a legal claim in its own right.22 I
once was talking with a judge about a case he was sitting on in which
Black teenage girls alleged that some procedures at their school vio­
lated their privacy. He told me that with their sexual habits they had

110
 Sexual Harassment

no privacy to lose. It seemed he knew what their sexual habits were

from evidence in the case, examples of the privacy violations.
The more aggravated an injury becomes, the more it ceases to exist.
Why is incomprehensible to me, but how it functions is not. Our
most powerful moment is on paper, in complaints we frame, and our
worst is in the flesh in court. Although it isn't much, we have the
most credibility when we are only the idea of us and our violation in
their minds. In our allegations we construct reality to some extent;
face to face, their angle of vision frames us irrevocably. In court we
have breasts, we are Black, we are (in a word) women. Not that we
are ever free of that, but the moment we physically embody our com­
plaint, and they can see us, the pornography of the process starts in
earnest.
I have begun to think that a major reason that many women do not
bring sexual harassment complaints is that they know this. They can­
not bear to have their personal account of sexual abuse reduced to a
fantasy they invented, used to define them and to pleasure the find­
ers of fact and the public. I think they have a very real sense that
their accounts are enjoyed, that others are getting pleasure from the
first-person recounting of their pain, and that is the content of their
humiliation at these rituals. When rape victims say they feel raped
again on the stand, and victims of sexual harassment say they feel
sexually harassed in the adjudication, it is not exactly metaphor. I
hear that they-in being publicly sexually humiliated by the legal
system, as by the perpetrator-are pornography. The first time it
happens, it is called freedom; the second time, it is called justice.
If a woman is sexually defined-meaning all women fundamen­
tally, intensified by previous sexual abuse or identification as lesbian,
indelible if a prostitute-her chances of recovery for sexual abuse are
correspondingly reduced. I'm still waiting for a woman to win at trial
against a man who forced her to comply with the sex. Suppose the
male plaintiff in one sexual harassment case who rented the motel
room in which the single sexual encounter took place had been a
woman, and the perpetrator had been a man. When the relationship
later went bad, it was apparently not a credibility problem for him at
trial that he had rented the motel room. Nor was his sexual history
apparently an issue. Nor, apparently, was it said when he complained
he was fired because the relationship went bad, that he had "asked
for" the relationship. That case was reversed on appeal on legal
grounds, but he did win at trial. 23 The best one can say about women
in such cases is that women who have had sex but not with the ac-

111
Applications

cused may have some chance. In one case the judge did not believe
the plaintiff's denial of an affair with another coworker, but did be­
lieve that she had been sexually harassed by the defendant. 24 In an­
other, the woman plaintiff actually had "linguistic intimacy" with an­
other man at work, yet when she said that what happened to her
with the defendant was sexual harassment, she was believed.25 These
are miraculous. A woman's word on these matters is usually indivi­
sible. In another case a woman accused two men of sexual harass­
ment. She had resisted and refused one man to whom she had pre­
viously submitted under pressure for a long time. He was in the
process of eliminating her from her job when the second man raped
her. The first man's defense was that it went on so long, she must
have liked it. The second man's defense was that he had heard that
she had had sexual relations with the first man, so he felt this was
something she was open to.26 This piggyback defense is premised on
the class definition of woman as whore, by which I mean what men
mean: one who exists to be sexually done to, to be sexually available
on men's terms, that is, a woman. If this definition of women is ac­
cepted, it means that if a woman has ever had sex, forced or volun­
tary, she can't be sexually violated.
A woman can be seen in these terms by being a former rape victim
or by the way she uses language. One case holds that the evidence
shows "the allegedly harassing conduct was substantially welcomed
and encouraged by plaintiff. She actively contributed to the distaste­
ful working environment by her own profane and sexually sugges­
tive conduct."27 She swore, apparently, and participated in conver­
sations about sex. This effectively made her harassment-proof. Many
women joke about sex to try to defuse men's sexual aggression, to
try to be one of the boys in hopes they will be treated like one. This
is to discourage sexual advances, not to encourage them. In other
cases, judges have understood that "the plaintiffs did not appreciate
the remarks and . . . many of the other women did not either."28
The extent to which a woman's job is sexualized is also a factor. If
a woman's work is not to sell sex, and her employer requires her
to wear a sexually suggestive uniform, if she is repeatedly sexually
harassed by the clientele, she may have a claim against her em­
ployer. 29 Similarly, although "there may well be a limited category of
jobs (such as adult entertainment) in which sexual harassment may
be a rational consequence of such employment," one court was
"simply not prepared to say that a female who goes to work in what
is apparently a predominantly male workplace should reasonably ex-

112
 Sexual Harassment

pect sexual harassment as part of her job."30 There may be trouble at

some point over what jobs are selling sex, given the sexualization of
anything a woman does.
Sexual credibility, that strange amalgam of whether your word
counts with whether or how much you were hurt, also comes pack­
aged in a variety of technical rules in the sexual harassment cases:
evidence, discovery, and burden of proof. In 1982 the EEOC held that
if a victim was sexually harassed without a corroborating witness,
proof was inadequate as a matter of law. 31 (Those of you who wonder
about the relevance of pornography, get this: if nobody watched, it
didn't happen.) A woman's word, even if believed, was legally insuf­
ficient, even if the man had nothing to put against it other than his
word and the plaintiff's burden of proof. Much like women who have
been raped, women who have experienced sexual harassment say,
"But I couldn't prove it." They mean they have nothing but their
word. Proof is when what you say counts against what someone else
says-for which it must first be believed. To say as a matter of law
that the woman's word is per se legally insufficient is to assume that,
with sexual violations uniquely, the defendant's denial is dispositive,
is proof. To say a woman's word is no proof amounts to saying a
woman's word is worthless. Usually all the man has is his denial. In
1983 the EEOC found sexual harassment on a woman's word alone.
It said it was enough, without distinguishing or overruling the prior
case.32 Perhaps they recognized that women don't choose to be sex­
ually harassed in the presence of witnesses.
The question of prior sexual history is one area in which the issue
of sexual credibility is directly posed. Evidence of the defendant's sex­
ual harassment of other women in the same institutional relation or
setting is increasingly being considered admissible, and it should
be.33 The other side of the question is whether evidence of a victim's
prior sexual history should be discoverable or admissible, and it
seems to me it should not be. Perpetrators often seek out victims with
common qualities or circumstances or situations-we are fungible to
them so long as we are similarly accessible-but victims do not seek
out victimization at all, and their nonvictimized sexual behavior is no
more relevant to an allegation of sexual force than is the perpetrator's
consensual sex life, such as it may be.
So far the leading case, consistent with the direction of rape law,34
has found that the victim's sexual history with other individuals is
not relevant, although consensual history with the individual per­
petrator may be. With sexual harassment law, we are having to de-

113
Applications

institutionalize sexual misogyny step by step. Some defendants'

counsel have even demanded that plaintiffs submit to an unlimited
psychiatric examination,35 which could have a major practical impact
on victims' effective access to relief. How much sexual denigration
will victims have to face to secure their right to be free from sexual
denigration? A major part of the harm of sexual harassment is the
public and private sexualization of a woman against her will. Forcing
her to speak about her sexuality is a common part of this process,
subjection to which leads women to seek relief through the courts.
Victims who choose to complain know they will have to endure re­
peated verbalizations of the specific sexual abuse they complain
about. They undertake this even though most experience it as an ex­
acerbation, however unavoidable, of the original abuse. For others,
the necessity to repeat over and over the verbal insults, innuendos,
and propositions to which they have been subjected leads them to
decide that justice is not worth such indignity.
Most victims of sexual harassment, if the incidence data are cor­
rect, never file complaints. Many who are viciously violated are so
ashamed to make that violation public that they submit in silence,
although it devastates their self-respect and often their health, or
they leave the job without complaint, although it threatens their sur­
vival and that of their families. If, on top of the cost of making the
violation known, which is painful enough, they know that the entire
range of their sexual experiences, attitudes, preferences, and prac­
tices are to be discoverable, few such actions will be brought, no mat­
ter how badly the victims are hurt. Faced with a choice between
forced sex in their jobs or schools on the one hand and forced sexual
disclosure for the public record on the other, few will choose the lat­
ter. This cruel paradox would effectively eliminate much progress in
this area. 36
Put another way; part of the power held by perpetrators of sexual
harassment is the threat of making the sexual abuse public knowl­
edge. This functions like blackmail in silencing the victim and allow­
ing the abuse to continue. It is a fact that public knowledge of sexual
abuse is often worse for the abused than the abuser, and victims who
choose to complain have the courage to take that on. To add to their
burden the potential of making public their entire personal life, in­
formation that has no relation to the fact or severity of the incidents
complained of, is to make the law of this area implicitly complicit in
the blackmail that keeps victims from exercising their rights and to
enhance the impunity of perpetrators. In effect, it means open season

114
 Sexual Harassment

on anyone who does not want her entire intimate life available to
public scrutiny. In other contexts such private information has been
found intrusive, irrelevant, and more prejudicial than probative.37 To
allow it to be discovered in the sexual harassment area amounts to a
requirement that women be further violated in order to be permitted
to seek relief for having been violated. I also will never understand
why a violation's severity, or even its likelihood of occurrence, is mea­
sured according to the character of the violated, rather than by what
was done to them.
In most reported sexual harassment cases, especially rulings on
law more than on facts, the trend is almost uniformly favorable to the
development of this claim. At least, so far. This almost certainly does
not represent social reality. It may not even reflect most cases in liti­
gation.38 And there may be conflicts building, for example, between
those who value speech in the abstract more than they value people
in the concrete. Much of sexual harassment is words. Women are
called "cunt," "pussy," "tits";39 they are invited to a company party
with "bring your own bathing suits (women, either half)";40 they con­
front their tormenter in front of their manager with, "You have called
me a fucking bitch," only to be answered, "No, I didn't. I called you
a fucking cunt."41 One court issued an injunction against inquiries
such as "Did you get any over the weekend?"42 One case holds that
where "a person in a position to grant or withhold employment op­
portunities uses that authority to attempt to induce workers and job
seekers to submit to sexual advances, prostitution, and pornographic
entertainment, and boasts of an ability to intimidate those who dis­
please him," sexual harassment (and intentional infliction of emo­
tional distress) are pleadedY Sexual harassment can also include pic­
tures; visual as well as verbal pornography is commonly used as part
of the abuse. Yet one judge found, apparently as a matter of law, that
the pervasive presence of pornography in the workplace did not con­
stitute an unreasonable work environment because, "For better or
worse, modern America features open displays of written and pic­
torial erotica. Shopping centers, candy stores and prime time televi­
sion regularly display naked bodies and erotic real or simulated sex
acts. Living in this milieu, the average American should not be legally
offended by sexually explicit posters."44 She did not say she was of­
fended, she said she was discriminated against based on her sex. If
the pervasiveness of an abuse makes it nonactionable, no inequality
sufficiently institutionalized to merit a law against it would be action­
able.

115
Applications

Further examples of this internecine conflict have arisen in educa­

tion. At the Massachusetts Institute of Technology pornography used
to be shown every year during registration.45 Is this not sexual
harassment in education, as a group of women complained it was,
because attendance is voluntary, both sexes go, it is screened in
groups rather than individually, nobody is directly propositioned,
and it is pictures and words? Or is it sexual harassment because the
status and treatment of women, supposedly secured from sex­
differential harm, are damaged, including that of those who do not
attend, which harms individuals and undermines sex equality; there­
fore pictures and words are the media through which the sex discrim­
ination is accomplished?
For feminist jurisprudence, the sexual harassment attempt sug­
gests that if a legal initiative is set up right from the beginning, mean­
ing if it is designed from women's real experience of violation, it can
make some difference. To a degree women's experience can be writ­
ten into law, even in some tension with the current doctrinal frame­
work. Women who want to resist their victimization with legal terms
that imagine it is not inevitable can be given some chance, which is
more than they had before. Law is not everything in this respect, but
it is not nothing either. 46 Perhaps the most important lesson is that
the mountain can be moved. When we started, there was absolutely
no judicial precedent for allowing a sex discrimination suit for sexual
harassment. Sometimes even the law does something for the first
time.

116
ten
Women, Self-Possession,
and Sport
(1982)

S
ince I grew up in pre-Title IX America, the first time it ever
occurred to me to identify as an athlete was when I was being
given a blood pressure test after a training accident. The nurse
put the sleeve on me, made a reading, paused, took it off, put it back
on, made more readings, and stopped and looked at me. Is anything
wrong? I asked. Well, she said, either you're a football player or you
have some exotic disease. Since only men played football then, to my
knowledge, it seemed as though this was not my first chance-and
probably not my last-to choose whether I was a man or whether I
was sick. I mean, she said, are you an athlete? I contemplated the five
years I had spent two hours a night, five nights a week, at martial
arts as a physical, spiritual, and political activity. I told her yes.
The issues of sexual politics in this story are new to none of you.
They raise a series of feminist questions on athletic planning, policy,
and institution creation, and also connect to women's presence and
possibilities in other areas of life, such as the law.
As context for pursuing these issues, I propose for your consider­
ation two different strands of feminist theory. Most work on women
in sport (most work on women in anything) comes from the first ap­
proach. In this approach the problem of the inequality of the sexes
revolves around gender differentiation. The view is that there are real
differences between the sexes, usually biological or natural. Upon
these differences, society has created some distorted, inaccurate, ir­
rational, and arbitrary distinctions: sex stereotypes or sex roles. To
eliminate sex inequality, in this view, is to eliminate these wrong and
irrational distinctions. The evil and dynamic of sexism here is the
twisting of biological males and females into masculine and feminine
sex roles. These roles are thought to shape men in one way and
women in another way, but each sex equally. Implicit here is the view

This was the keynote address at the Conference on Feminism and Sport, University of
Iowa, Iowa City, Iowa, June 18, 1982. I thank Lyn LeMaire for her contribution to these
thoughts.
117
Applications

that initiatives toward sex equality are limited to or constrained by

real underlying differences. "Arbitrariness" of treatment in social life
is measured by implicit reference to these differences. This is liberal
feminism's diagnosis of the condition of women. The solution that
responds to this diagnosis is that we need to ignore or eliminate these
distortions so that people can realize their potential as individuals.
Liberal feminism does not usually purport to be sure what the real
underlying differences are, but its idea is that they are there. The way
you know the wrong of stereotyping is distortion is that there is
something preexisting to distort. Liberal feminist strategies for
change correspond to its critique: ignore or eliminate irrational dif­
ferences. To the extent that differentiation is irrational, assimilation
or integration is recommended. Those things that men have been,
psychologically and physically; so also women should be allowed to
become. Androgyny as a solution, free choice of qualities of both
roles, is also consistent with these politics.
I want to contrast a second view with this. This view doubts that
differences or differentiation have much to do with inequality. Sexism
is a problem not of gender differentiation, but of gender hierarchy; in
which gender differentiation is only one strategy. Nor is sexism gen­
der neutral in the sense that it hurts men and women equally; the
problem is instead male supremacy and female subjection. From this
second point of view, issues like rape, incest, sexual harassment,
prostitution, pornography-issues of the violation of women, in par­
ticular of women's sexuality-connect directly with issues of athlet­
ics. The systematic maiming of women's physicality that marks those
athletic and physical pursuits that women have been forced or pres­
sured or encouraged to do, on the one hand, connect with those we
have been excluded from doing, on the other. If you ask, not why do
women and men do different physical activities, but why has femi­
ninity meant physical weakness, you notice that someone who is
physically weak is more easily able to be raped, available to be mo­
lested, open to sexual harassment. Feminine means violable .
This critique of gender hierarchy; which I identify as the radical
feminist analysis, is developing a theory beyond stereotyping, be­
yond the dynamics of differentiation but including them. It is devel­
oping a theory that objectification is the dynamic of the subordina­
tion of women. Objectification is different from stereotyping, which
acts as though it's all in the head. Stereotyping, as critique, proceeds
as though what we need to change so that women will no longer be

118
 Women, Self-Possession, and Sport

kept down is women's images of ourselves as victims and men's mis­

taken views of us as second class. It's not that that wouldn't help. It's
just that the problem goes a great deal deeper than illusion or delu­
sion. Masks become personas become people, socially, especially
when they are enforced. The history of women's athletics should
prove that, if nothing else does. The notion that women cannot do
certain things, cannot break certain records, cannot engage in certain
physical pursuits has been part of preventing women from doing
those things. It isn't only that women are excluded, it's that even
women who do sport are limited. This isn't just ideas or images-or
just women, for that matter. When you think, for instance, about the
relationship between the scientific discovery of the physical possibil­
ity of running a mile in less than x time and people actually running
the mile in less than x time, you see a real relationship between im­
ages of the possibility of a particular achievement and the actual
physical ability to do it. Anyone who trains seriously understands
this on some level.
What I'm suggesting is that the sexual, by which I mean the
gender, objectification of women that has distinguished between
women, on the one hand, and the successful athlete, on the other,
has reached deeper than just mistaken ideas about what women can
and cannot do, notions that can be thought out of existence by the
insightful or the exceptionally ambitious. It is not only ideas in the
head that have excluded us from resources and most everything else.
It is also the social meaning of female identity that has restricted and
contained us. If a woman is defined hierarchically so that the male
idea of a woman defines womanhood, and if men have power, this
idea becomes reality. It is therefore real . It is not just an illusion or a
fantasy or a mistake. It becomes embodied because it is enforced.
Radical feminism is not satisfied with women emulating the exist­
ing image of the athlete, which has been a male image. Neither with
that, nor with the separate and vicarious role of cheerleader, nor with
other feminine physical pursuits that have been left to us. Instead,
feminism moves to transform the meaning of athletics, of sport itself.
I am going to talk about what it would look like to transform sport
from a feminist perspective. To do this, I need finally to distinguish
this feminist perspective from what I have characterized as the aspi­
ration to the genderless point of view that characterizes liberal femi­
nism. The idea of liberal feminism is that because society and thought
are so twisted by sexism, we have to somehow transcend all that in

119
Applications

order to have a nonsexist perspective from which to view social life.

I think the radical feminist move is exactly the opposite. It says that
we need a women's point of view that criticizes all the ways we have
been created by being excluded and kept down but that also claims
the validity of our own experience. This is not a transcendence op­
eration, whereby we get to act as though we don't have any particular
perspective, but instead an embrace of what we have become with a
criticism of the process of having been forced to become it, together
with a similar dual take on everything we've never been allowed
to be.
In the context of liberal feminism, when one asks why don't
women participate in athletics or why haven't they participated in
athletics, the answer looks like: illusions about women's weakness,
notions about femininity, stereotypes. These are all part of it, to be
sure. The corresponding solution reveals the limitations on the
underlying account, though: challenge wrong ideas so that women
can play with the boys. From a radical feminist perspective, if you
ask why women have not participated in athletics, you get a much
more complicated picture. Women have learned a lot all these years
on the sidelines, watching. Not only have we been excluded from
resources, excluded from participation, we have learned actual dis­
ability, enforced weakness, lack of spirit/body connection in being
and in motion. It is not that men are trained to be strong and women
are just not trained. Men are trained to be strong and women are
trained to be weak. It's not not learned; it's very specifically learned.
Also, observing athletics as pursuits, we notice that most athletics,
particularly the most lucrative of them, have been internally designed
to maximize attributes that are identical with what the male sex role
values in men. In other words, men, simply learning to be men, learn
not only sports but learn those things that become elevated, ex­
tended, measured, valued, and organized in and as sport itself.
Women, simply learning to be women, do not learn those things, do
learn the opposite of those things. So it's no news to any of you that
being female and being athletic have been socially contradictory and
that being male and being athletic have been more or less socially
synonymous. Femininity has contradicted, masculinity has been con­
sistent with, being athletic. Women get to choose between being a
successful girl and being a successful athlete.
Now I want to extend and deepen the feminist analysis of athletics
from this second perspective, which I will call simply feminist. When

120
 Women, Self-Possession, and Sport

you look at athletics from the feminist standpoint, the question be­
comes: what is athletics for? Once, when I asked a class of Harvard
law students this question, one woman answered: what is education
for without athletics? Which I thought was very much the point. It
was not just that without basketball, she would have had no interest
whatever in school, but that physical education was central to becom­
ing an educated person. Keeping this in mind, and keeping in mind
that the standard for personhood, in athletics as elsewhere, has sub­
stantively, socially, been a male standard, I want to answer the ques­
tion "what is athletics for?" in two parts: what has it meant to men?
and what can it mean to women?
From a feminist perspective, athletics to men is a form of combat.
It is a sphere in which one asserts oneself against an object, a person,
or a standard. It is a form of coming against and subduing someone
who is on the other side, vanquishing enemies. It's competitive. From
women's point of view, some rather major elements of the experience
appear to be left out, both for men and for women. These include
things that men occasionally experience, but that on the whole are
not allowed to be the central purpose of male athletics, such as ki­
nesthesis, pleasure in motion, cooperation (and by this I do not mean
the male bond), physical self-respect, self-possession, and fun. Be­
cause of the history of women's subjection, physicality for women
has a different meaning from physicality for men. Physicality for men
has meant male dominance; it has meant force, coercion, and the
ability to subdue and subject the natural world, one central part of
which has been us.
For women, when we have engaged in sport, when we have been
physical, it has meant claiming and possessing a physicality that is
our own. We have had something to fight and therefore something
to gain here, and that is a different relation to our bodies than women
are allowed to have in this society. We have had to gain a relation to
our bodies as if they are our own. This physical self-respect and phys­
ical presence that women can get from sport is antithetical to femi­
ninity. It is our bodies as acting rather than as acted upon. It is our
bodies as being and presence, our bodies that we do things with, that
we in fact are and identify with as ourselves, rather than our bodies
as things to be looked at or for us to look at in preparation for the
crucialness of how we will appear, or even to carry our heads around
in the world. In other words, athletics can give us our bodies as a
form of being rather than as a form of appearance, or death-likeness.

121
Applications

In particular, I think, athletics can give us a sense of an actuality of

our bodies as our own rather than primarily as an instrument to com­
municate sexual availability.
If you doubt that we are not allowed to have what I am saying
athletics gives us, I suggest that we can tell we've broken some rules
when people start calling us what they consider epithets. We all
know that women athletes are considered unfeminine. This is inte­
grally related to the fact that women athletes are experienced as hav­
ing physical self-respect. We also know that women athletes are rou­
tinely accused, explicitly or implicitly; of being lesbian. I think that
this is directly related to the sense women athletes have of body as
self, as acting, as opposed to body as something that conveys sexual
accessibility to men, as there to be acted upon. I often find that the
allegedly nasty words people use to describe us have truth in them,
in that if one asks why they see us this way, we learn some real
things. On the equation of woman athlete with unfeminine with les­
bian, I wonder: why does women's self-respect and conveyed capac­
ity to act mean that we reject male sexual access? They're the ones who
are telling us that's what it means. What does it say about the relation
between sexuality and physicality, what does it tell us in particular
about the content of heterosexuality, that when a woman comes to
own her own body, that makes her heterosexuality problematic? I
think it tells us that the image and in large part the reality we have
of female sexuality is equated with and defined as availability to
being taken by a man. It's threatening to one's takeability, one's rape­
ability, one's femininity, to be strong and physically self-possessed. To
be able to resist rape, not to communicate rapeability with one's body,
to hold one's body for uses and meanings other than that can trans­
form what being a woman means.
Some of you may be thinking that what I have described as the
image of weakness, pregnability, vulnerability, passivity, the feminine
stereotype, the eternal female, and the ways in which those are anti­
thetical to the image of the athlete, is outdated. You may be thinking
that since the passage of Title IX and the new improved image of the
woman athlete, it has become more acceptable, hence less stigmatic,
for women to be physical. Title IX has been extremely important. But
the minute women claim something for ourselves and it is seen as
powerful and important, especially if it becomes profitable, it imme­
diately gets claimed and taken over by men. I mean to include every­
thing from the eroticization of the female athlete in Playboy to the
•

recent moves by the NCAA.1

122
 Women, Self-Possession, and Sport

That comment suggests some institutional consequences, not all of

which I have resolved in my own mind. Given what I have said about
women's physicality, women's point of view on athletics, and its con­
nections with sexuality and the subordination of women generally,
now let's ask, what about separate teams? what about separate pro­
grams? what about separate institutions? If women/men is a distinc­
tion not just of difference, but of power and powerlessness, if power/
powerlessness is the sex difference, those questions need to be asked
very differently than they have been. For instance, if not participating
in male-defined sport does not mean fear or rejection of failure or
success, but the creation of a new standard, of a new vision of sport,
the problem of pursuing a feminist perspective in an institutional
context is not solved, but it is differently posed.
This attempt at a new perspective, in other words, does not simply
justify separatism.2 It is an argument that women as women in a fem­
inist sense have a distinctive contribution to make to sport that is
neither a sentimentalization of our oppression as women nor an em­
brace of the model of the oppressor. As feminists, we are critical of
both femininity and masculinity as serving the interest of men, as
furthering male power, and as instrumental to male dominance. We
are attempting to create a social reality, a social identity, that is bound
up with neither. A vision of sport from this standpoint finds ritual­
ized violence alien and dangerous as well as faintly ridiculous, every
bit as much as it finds sex-scripted cheering from the sidelines de­
meaning and vicarious and silly. The place of women's athletics in a
larger feminist analysis is that women as women have a survival stake
in reclaiming our bodies in our physical relations with other people.
We need to do this in a way that claims our bodies as ourselves,
rather than as an eager embrace of our bodies as nature, or abdication
of them to other people as something to be resisted or overcome or
subdued.
I hope that what I'm about to say won't get sentimentalized. It is
part of a critical analysis of art as well as of sport. I have said that I
think women's physicality, or what it could be, has a distinct mean­
ing, a meaning that comes from women's oppression through our
bodies, but that means we have something to offer the world of ath­
letics, much as it has something to offer us. I do mean to include men
who have been excluded from sports by their rejection of the mas­
culine ideal. But it is not only men who can't make it, and not only
women who can, who stand to benefit from a revaluation of sport.
Women have a contribution of perspective to make here that is a lot

123
Applications

more powerful than either playing with the boys or allowing the boys
to play with us. Once when I was talking about this with the same
student I mentioned earlier, she reminded me that both men and
women have climbed Mount Everest. When asked why, the man said,
because it is there. The woman said, because it is beautiful.

124
III. P O RN O G RAPHY

I describe life with Chuck as twisted and brutal, demented and violent,
insane and sadistic; he describes it as normal-believe it or not, we're
both telling the truth.
Linda Lovelace, Out of Bondage (1986)

A life is such a fragile thing. It can be snuffed out . . . like a candle. Go

beyond the limits of realism . . . to reality.
Promotional copy for Snuff [ellipses in original]

You could run a daily newspaper committed to a conspiracy, not of

silence, but o f speech.
Virginia Woolf, Three Guineas (1938)
eleven

Linda's Life and Andrea's Work

(1982)

W
hat you are hearing tonight from Andrea Dworkin and
from Linda Marchiano and now from me, unless you have
previously spoken with us or have read our work or some
of the very small amount of work that is part of what we are trying
to do, you have never heard before. Although it may be unnecessary
to say this, I do so in order to try to avoid misunderstandings caused
by your translating what we say into things that you think are said
by people who you think think like we do. For example, I heard Bur­
ton Joseph say, in relation to the Comstock law, as he moved into
discussing the evil forces at work in this country to restrict existing
freedoms he supposes we all have, that "these people's justifications
for their arguments are always the same." Our arguments are not the
same as the arguments he refers to. What you are hearing tonight is
not only something you have not heard before, it is something he has
not heard before, because it is something that has not been said be­
fore. He is speaking from and about the language, the noise, of an
apparatus that, along with protecting many values all of us share,
exists to protect male supremacy as a system. This is the system An­
drea discussed, of which Linda was a specific victim and of which
we all, as women, are survivors.
I want to speak with you, first, about the meaning of Linda's ex­
perience for all women and, second, about the meaning of Andrea's
analysis for the law of the First Amendment; third, I want to engage
in an act of political speech on behalf of the three of us. When I men­
tioned to Andrea what I was going to do in my twenty-five minutes,
she said, it will be twenty-five more minutes than has ever gone into
any of that. I say this to underline the point that you have not heard
any of this before.
As to the meaning of Linda's experience for all women, I do not
mean to take away whatever meaning it has to you or to change it or

At Stanford University, Stanford, California, Apr. 2, 1982, Linda Marchiano, Andrea

Dworkin, Burton joseph (chairman of the board, Playboy Foundation), and I presented
a panel on pornography, which the intrepid Sharon Dyer organized.

127
Pornography

make my own meaning out of the meaning that she gives it or that
she communicates by her presence. I do think that her experience is
on the one hand individually extreme, specifically horrible and un­
usually brutal, and is on the other hand a very common, every­
woman kind of experience. I want to talk about the connection be­
tween those two aspects.
The film Deep Throat, in which Linda was pornographed, became a
chic success. It was a turning point in legitimizing pornography in
this country. Lots of rising young executives, as well as the usual
middle-aged settled ones, took their respectively appropriately an­
nexed women to see it. The film is often defended in courts as well
as in the press as nonobscene because, they say, it is sexually liber­
ating. People report feeling sexually more free to engage in oral sex
as a result of having seen Linda deep-throat in the film. Linda spoke
to you about her alienation. That word abstracts her experience but
begins to convey the out-of-it-ness that one needs to survive torture. 1
Accounts o f torture show that it is a common survival strategy to
remove oneself from the situation, to split away, to say this body that
is being abused is not my body. I believe this reality is the key to the
success of Deep Throat as a sex film. I'm saying Linda's out-of-it-ness
is the key to what is sexual about the film.
On one level, this quality is part of her projection of the image of
the sweet young porn star who liked sex but wasn't a slut. She didn't
come off as a whore, but it was clear she was one. A whore is not out
of it, a whore is (supposedly) into it. Simultaneously Linda conveyed
that she was having a good time. Her apparent enjoyment is crucial.
As she says, what people remember is the smile on my face. The
purported plot of Deep Throat is premised upon rearranging the
woman by putting a clitoris in her throat, so that she gets sexual
pleasure out of giving oral sex to men. Chic, rising young executive
men who took their women to this film came out saying, if you love
me you'll do that too. The superficial lie, that we get pleasure in ways
we do not, is the central conceit. The deeper lie is that Linda enjoyed
it. That is the lie she was forced to act out. That she was there for the
sex would have been a lie even if she was there more voluntarily. That
is, even if she had done it for money, it would have been a lie that
she was doing the sex for her own pleasure; that she was voluntarily
enjoying it is the role she was there to portray.
But here, put a gun to someone's head and say, act like you're en­
joying it. If you have any kind of acting ability, as well as respect for
your life, a desire to live, maybe you want to do it well once so you

128
 Linda's Life and Andrea's Work

won't have to do a retake-you do it. You do it relatively convinc­

ingly. Linda's apparent enjoyment, which was a well-done charade,
is the charade women learn in order to survive: to project sexual en­
joyment whether we feel it or not. Underlying this is that out-of-it­
ness, that same above-it-all quality, that not-really-into-it-ness of a lot
of women under a lot of different conditions. This is what she con­
veyed, and the film was a success because it felt real to men. It's the
same reality Jane Fonda exposed in that second of complete brilliance
in Klute. Remember the part where she's playing the prostitute hav­
ing a wonderful time having sex, making orgiastic sounds, and then
she checks her watch? That. Linda projected in Deep Throat what
women learn in order to get by as women. It is a major part of our
self-presentation. It is what men experience as our sexuality. What
connects Linda's ordeal and the success of Deep Throat with the situ­
ation of all women is the force they are based on.
Now I want to talk about the meaning of Andrea's analysis of por­
nography for the law. It's a testament to what I call the hegemony of
legalism-by which I mean the ability of the legal system to assign
the categories within which people then conceive their lives-that
when we come here to speak about the feminist critique of pornog­
raphy, Burton Joseph stands up and addresses a whole series of is­
sues premised on the view that anyone who is against pornography
is promoting state censorship of free expression. What I learn from
reading Andrea's book and listening to her tonight is that what Bur­
ton Joseph defends as his free speech is premised on what Linda
describes as her life. Deep Throat is protected speech.2 The film appar­
ently cannot be reached by her any more than by anyone else, no
matter what was done to her in making it. The fact that Linda was
coerced makes the film no less protected as speech, even though the
publication of OrdeaP makes clear that the film documents crimes,
acts that violate laws in all fifty states .
From thinking further about Linda's relation t o that film i n the con­
text of Andrea's analysis, I learned that the social preconditions, the
presumptions, that underlie the First Amendment do not apply to
women. The First Amendment essentially presumes some level of
social equality among people and hence essentially equal social ac­
cess to the means of expression. In a context of inequality between
the sexes, we cannot presume that that is accurate. The First Amend­
ment also presumes that for the mind to be free to f{ilfill itself, speech
must be free and open. Andrea's work shows that pornography con­
tributes to enslaving women's minds and bodies. As a social process

129
 Pornography

�n_d as a form ()f "speech/' pornography amounts to terrorism and

promotes not freedom but silence. Rath�!,_ it promotes freedom--£9!_
men and enslavement and silence for women.
Burton Joseph repeatedly separates conduct from speech. Speech
he's for; acts he can be against. The distinction has been heavily
fought over. It is unclear what's conduct and what's speech at many
points, but this separation is thought to exist. Mr. Joseph then goes
· on to discuss data about how irrelevant speech is to action. In my
view, none of these studies has yet asked the right questions about
pornography. They don't ask whether sexuality is itself violating or
even whether it is itself violent; they are premised instead on the
view that sexuality and violence are distinct; hence pornography is
distinct from erotica. The subjects of the studies are typically exposed
to so-called erotic films, meaning that the films produce erections in
men and (when they use women) vaginal secretions in women. Then
they try to measure whether the subjects will do violent acts, such as
administering electric shocks. Sometimes they find that they do. But
they don't test for whether sexual excitement means they will express
violent sex, although there is some evidence that pornography makes
men more tolerant of rape. The work is premised on a clear split
between sex and violence. The studies of the speech/action connec­
tion do not look for the right acts. When Andrea speaks of the penis
as a weapon, violence and sexuality are not so separable.
In Andrea's work, expression is not just talk. Pornography not only
teaches the reality of male dominance. It is one way its reality is im­
posed as well as experienced. It is a way of seeing and using women.
Male power makes authoritative a way of seeing and treating women,
so that when a man looks at a pornographic picture-pornographic
meaning that the woman is defined as to be acted upon, a sexual
object, a sexual thing-the viewing is an act, an act of male suprem­
acy. It also takes a lot of acts to make it, as Linda makes clear. An
additional assumption underlying the First Amendment is that free
speech is necessary to discern truth, that the partiality produced by
supression distorts truth. What I hear Andrea saying is that under
conditions of sexual dominance, pornography hides and distorts
truth while at the same time enforcing itself, imprinting itself on the
world, making itself real. That's another way in which pornography
is a kind of act.
Another notion underlying the First Amendment is that free
speech promotes consensus by allowing unorthodox expression. Por­
nography is thought to be a divergent and unorthodox view. An-

130
 Linda's Life and Andrea's Work

drea's analysis reveals that the views in pornography are conven­

tional; they are the consensus. This is why legal line-drawing is so
difficult in this area. That difficulty was implicit in all Mr. Joseph said
to make us afraid of the consequences of trying to do anything about
pornography: the inability to draw a line between pornography and
everything else. To me that exposes the pervasiveness of the value
system Andrea analyzes, its presence in literature, in advertising, in
daily life. If I have any difficulty distinguishing those areas from por­
nography, it is not because I don't think some things are worse than
others, because they are, but because the same values pervade
them all.
Now I want to engage in an act of political speech. The three of us
are in some ways unique, but as women we are not alone. The exis­
tence of Linda and Andrea and me, according to the system we have
described to you, is impossible. It is impossible for Linda to exist as
who she is, having been through what she's been through. Usually,
what happened to Linda would make it impossible for you ever to
hear about her. Once these things happen, the women are silenced
forever, so it's impossible to be both a victim and a survivor. The
deepest victims of sexism are the ones you never hear from again.
What's so amazing about Linda is that she is one of its deepest victims
and you have heard from her. In this she is like Andrea, who has
survived the streets of this country and writes. Her uncompromised
advocacy for women has been vilified, denigrated, and ignored-as
well as read and understood and recognized and respected and acted
upon. By the values of most of what is published and taken seriously,
there is no way to account for her existence or her voice. We cannot
explain the fact that you have heard from her.
Women have also been systematically excluded from access to the
tools of the law and from the possession and legitimacy of a legal and
political education. To the extent we are granted that access, we are
not allowed to identify as women. I have survived that, among other
things. Nor are we allowed to make women the center of our work,
so that essentially there is no feminist critique of law. The price of
getting the tools to do it seems to include being trained out of want­
ing to.
If all this fails to silence us, the success of our survival is used to
delegitimize what we have survived to say, our critique. Do you re­
alize that part of people's difficulty believing Linda is because she sur­
vived? It couldn't have been that bad; other women can't be in her
situation. She escaped; why can't they? Similarly with Andrea. See,

131
Pornography

the First Amendment works, you got published. I am told, see, a

feminist can teach at Harvard, Yale, and Stanford law schools. How
can academia, legal education, law be antiwoman?
This ignores the precariousness and threat of our situations, as well
as what we have been through. It ignores the pornography of our
daily lives, as well as deprives us of whatever victories we have
achieved over it. As to the precariousness and threat, because Linda
has refused to lie down, roll over, be silent, play dead, her survival
as a woman with self-respect is turned into yet one more way that
she can be used. The men she wrote about in Ordeal continue to come
after her for any money she makes on the book. Saying that Andrea's
success vindicates the First Amendment ignores the way Andrea has
to live from article to article, book to book, day to day, sustaining
continual assaults to her dignity and worth; it ignores what all of us
have been through financially, living below the poverty line year after
year. It's not just a question of how life is hard all over, but of how
once you have identified as a woman, which Linda did by being vio­
lated and surviving as one, which we all do by speaking as one, you
have no credibility. For Linda it looks like she's a whore. People do
not believe this woman because what happened to her, happened. It
proved who she really is. Andrea is depicted through all the usual
slanders against effective women. The attacks on her appearance, her
sexuality, her relationships, her heritage, and her ideas are on a level
of viciousness that is almost impossible to characterize. My work is
considered not law by lawyers, not scholarship by academics, too
practical by intellectuals, too intellectual by practitioners, and neither
politics nor science by political scientists.
When I ask myself what could make us credible, I realize that for
Linda it would help if she were dead. Then they might believe she
didn't want it. Maybe. Short of that, maybe it takes more women's
bodies. How many women has Chuck Traynor done this to? Maybe
if we have two or three or maybe four more, people will start to be­
lieve Linda? Just the doubt that this one man can raise by saying,
when I met her she was a whore, she's still a whore. She's just going
around selling herself, you know. Now she's selling her story about
how her story was sold. How many women's bodies do we have to
stack up just to begin to have something to stand on to question that
credibility? As for Andrea, I think that the women who have the cred­
ibility she doesn't have are the feminists who do not criticize male
supremacy, specifically male sexuality. And as for me, I notice that
law gives me some credibility, but that being woman-identified takes

132
 Linda's Life and Andrea's Work

it away. The law gives male credibility; female identification erases it.
In that connection and context, you should all know that this event
tonight would not have been allowed to occur had there not been a
representative from what is regarded as the other side. For how long
have these issues been discussed without our side? Have you ever
heard what we are saying before? I haven't. When world hunger is
discussed, is it necessary to have the pro-hunger side presented?
Linda, Andrea, and I would not have been allowed by Stanford to
give this panel unless we also provided this forum to Burton Joseph,
the chairman of the board of the Playboy Foundation. Is it a coinci­
dence that each of us also represents a pornographic stereotype?
Linda is the whore, Andrea is the feminist bitch, and I am the liber­
ated lady lawyer. Check us out in Playboy some time. Do they give
what we are saying here tonight equal time?
The point is, because we all identify as women, but also because,
like all women, we inescapably are identified as women, the values
'
_of pornography are the values that rule our lives. But each day I have
students and clients, Andrea has readers, and Linda, as herself, has
an audience. And every day there are more of us.

133
twelve

"More Than Simply a Magazine":

Playboy's Money
(1982)
They are able to distort the pictures or do anything that they want to with
them . . . for example, I was a puzzle. I was a deck of p laying cards. This is
what they call Playboy products . . . By the way, a Playmate is a product.
The term "Playmate" is a trademark of Playboy.

Miki Garcia ("Miss January 1973"), Hearings of the National Commission on Pornog­
raphy, Los Angeles October
, 17, 1985

layboy,
P
the magazine, sells women's sexuality as "entertain­
ment for men." 1 It is socially accepted. Playboy, the founda­
tion, gives a fair amount of the money the magazine makes
this way to some kinds of feminist work2 and brags about it more

Playboy,
than a fair amount. I want to think through the connections between
these facts, focusing on how feminists' acceptance of money from
Playboy, the foundation, helps make acceptable what the
magazine, does to women. This is a preliminary report on some re­
search. I am just beginning to get a handle on what I think Playboy
is, what they are doing, what their views of themselves are, and how
they are socially regarded.
Among feminists I see two views of Playboy's money. One is that
it is really our money. Playboy took and sold women's s;xuafity -to
make it in the first place, so we should use it in the interests of
women to cushion or change the system that extracts it from us. If
feminism is at all about transforming the sexuality-for-survival dy­
namic, this reparations theory could make Playboy's money look like
part of a feminist strategy for change.

This speech was originally part of a panel Pauline Bart organized at the National Wom­
en's Studies Association meetings, Humboldt, California, June 19, 1982. Jeanne M.
Barkey did much of the research on Playboy that made the analysis possible. In "The
Playboy Philosophy," Playboy, February 1963, at 48, Hugh Hefner said that Playboy was
becoming "more than simply a magazine." He was right. I dedicate this speech to
Dorchen Leidholdt.

134
 Playboy's Money

The other view is not that Playboy's money is dirty money; the
objection is not a moral one, that Playboy is dirty in some sense in
which other things are clean. The objection is not from the stand­
point of any kind of purity. It is a political objection. By this I mean
it is not about good and evil or virtue and perversity but about power
and powerlessness. From this standpoint, the argument against tak­
ing Playboy's money is: if we think we are going to use their money
to undercut the system of power that extracts it, we think we are
more powerful than we are and Playboy is less powerful than it is,
which is a dangerous delusion. Even more, if much of Playboy's
power against women derives from its legitimacy, and what its legit­
imacy in turn makes legitimate, we become part of their legitimacy
support system when we accept their financial help. Taking their
money, in this view, digs us deeper into the system we are fighting.
The issue then becomes not whether we are pure, or even whether
we can afford not to take their money and still survive, but whether
taking their money hurts us more than the money helps us, although
it comes as an influx of often desperately needed resources. Can fem­
inists survive taking their money? What do we survive as?
Those are the positions in their most difficult postures, for me. If
their analysis of women's situation is not identical, at least their
senses of feminist goals overlap. On one level of theory, the question
of Playboy's money can be seen as an example of the marxism­
feminism problematic, because it connects materiality in the money
sense with male power in the sexual sense . What follows is one at­
tempt to work through that tension, understanding that money and
sexuality are both material and gendered.
Playboy's money, considered from a feminist perspective, requires
answering three questions: what is feminism? what is Playboy? what
is money? I will bring in facts about who Playboy gives money to
and, to the extent we have been able to determine empirically, how
much is involved, under what conditions it is given, and with what
results.
Playboy asserts it is a feminist publication; at least both Hugh Hef­
ner and Christie Hefner say that they are feminists and that the mag­
azine liberates women.3 I am less interested in what is utterly ludi­
crous about this claim than in the sense in which it might have some
truth. If you ask, is there anything that goes around calling itself fem­
inist that Playboy has anything in common with, the answer is yes.
For that reason I need to discuss what feminism is before I can eval-

135
Pornography

uate Playboy in its terms. I will also say I am real tired of people
calling things feminist that come from quite other traditions. Apply­
ing other traditions to women doesn't make them feminist.
I believe that thought is systematic, socially speaking, even when
it is not particularly consistent or coherent, logically or philosophi­
cally speaking. It always occupies a place in society's material/con­
sciousness context, which is a context that gives some people power
over other people. When Playboy says it is feminist, the substance of
the positions it refers to is systematically-formally, historically, and
philosophically-liberal, period.
Liberalism applied to the sex question provides a critique of gender
differentiation in which the sexes are imagined as fundamentally dif­
ferent, so inequality means inaccurate or irrational differentiation.
Why inequality happens is never very clear. No one is ever actively
doing it, everybody has it done to them, and no one benefits from it.
It sort of just comes from the stork. Liberal feminism seeks to solve
this version of the sex problem, which is this imperfect fit between
gender differentiation-social sex-and sexual dimorphism-biolog­
ical sex. The resulting liberal feminist position on sexuality, like its
position on most else, is that women should be able to get what men
have had access to, so long as biological differentiation is not altered
as a bottom line. On this view of equality, what you get is the sixties'
"liberated woman," that is, the woman who initiates sex with lots of
men ("partners") and regards it as an indoor or spectator sport (like
men have) and has lots of (biologically female) orgasms.
Playboy certainly presents the biological differences between the
sexes on its pages, if a difference can be shown by displaying only
half of it. What are thought of as women's gender characteristics are
what the magazine sells as sexuality. To say that Playboy presents the
natural beauty of women's bodies and promotes the sexual liberation
of women-here I draw on Playboy itself, which says it does these
things-reveals a liberal concept of the relation between nature and
freedom. It starts with the idea that people, even people who as a
group are poor and powerless, do what they do voluntarily, so that
women who pose for Playboy are there by their own free will. Forget
the realities of womens' sexual/economic situation. When women ex­
press our free will, we spread our legs for a camera.
Implicit here, too, is the idea that a natural physical body exists,
prior to its social construction through being viewed, which can be
captured and photographed, even, or especially, when "attractively
posed" -that's a quote from the Playboy Philosophy.4 Then we are

136
 Playboy's Money

told that to criticize this is to criticize "ideas," not what is being done
either to the women in the magazine or to women in society as a
whole. Any critique of what is done is then cast as a moral critique,
which, as liberals know, can involve only opinions or ideas, not facts
about life. This entire defensive edifice, illogical as it may seem, relies
utterly coherently on the five cardinal dimensions of liberalism:
individualism, naturalism, voluntarism, idealism, and moralism. I
mean: members of groups who have no choice but to live life as mem­
bers of groups are taken as if they are unique individuals; their social
characteristics are then reduced to natural characteristics; preclusion
of choices becomes free will; material reality is turned into "ideas
about" reality; and concrete positions of power and powerlessness
are transformed into relative value judgments, as to which reason­
able people can form different but equally valid preferences.
What I have just described is the ideological defense of pornogra­
phy. Given the consequences for women of this formal theoretical
structure, consequences that we live out daily as social inequality (not
to mention its inherent blame-the-victim posture), I do not think it can
be said that liberal feminism is feminist. What it is, is liberalism ap­
plied to women. If the sexes are equally different but not equally so­
cially powerful, "differences" in the liberal sense are irrelevant to the
politics of our situation, which is one of inequality. Radical feminism,
as I understand it, is against gender hierarchy. Since such a critique
does address the situation of women as I understand it, I term it
simply feminism.
One's position, then, on whether feminists should accept Playboy's
money depends on one's analysis of the situation of women: where
it comes from, what makes it move, how to change it. It means one
thing to take their money if the situation of women is forced-spe­
cifically, if the situation is one of forced sex-and quite another if
women's problem is, say, that selling our sexuality is illegal. I think
that gender defines the status of women, that forced sex defines gen­
der, that pornography eroticizes and thereby legitimizes forced sex,
and that Playboy is pornography and makes pornography legitimate.
Playboy is, in part and in turn, legitimized through its articles, which
include some by putative feminists, and its intensive and very suc­
cessful public relations, of which its financial contributions to the
women's movement are a real part. Playboy uses its contributions to
our work (among other things) to transform its position as active op­
pressors of women into the appearance of being standard bearers of
women's equality.

137
Pornography

Playboy's legitimacy I term "the Playboy standard." The way it works

is that anything that might hurt Playboy, meaning anything real ad­
dressing pornography, can't be done. According to this standard,
Playboy isn't "really" pornography, but it is indistinguishable from it;
since nothing can be done about pornography that wouldn't also hurt
Playboy, nothing can be done about pornography. Playboy is so much
a standard that people may even be against what they call the vio­
lence in pornography yet think Playboy is fine. Either they miss or
don't mind the force in and behind Playboy; or if they do see it, they
don't feel they can take a stand even against the more expressly vio­
lent pornography, because that might do something to Playboy. I'm
saying, the first premise is "Playboy is OK"; everything else, includ­
ing what Playboy does to women, has to be measured against the
standard Playboy sets, rather than measuring Playboy by some other
standard of how women should be treated.
From a feminist perspective, what exactly does Playboy do? It takes
-
a woman and makes her sexuality into something any man who
wants to can buy and hold in his hand for three dollars and fi(ty
cents. His access to her sexuality is called freedom-his and hers. She
becomes something to be used by him, specifically, an object for his
sexual use. Think of it this way. A cup is part of the object world,
valued according to its looks and for how it can be used. If someone
breaks it, maybe that is considered an abuse, or maybe it is briefly
mourned and then replaced . But using it does not violate anything,
because that is what it is for. Playboy as a standard means that to use
a woman sexually does not violate her nature because it expresses
her nature; it is what she is for. To criticize Playboy as a standard for
how a woman should be treated is to say something very simple: a
woman is not a cup, and her sexuality isn't, either.
What Playboy does to women is very carefully legitimized, both in­
side and outside the magazine. Playboy's articles push their views,
including their views of the First Amendment, in an expressly sexu­
alized context, and at the same time those articles serve to legitimize
what their pictures do to women. Masturbating over the positions
taken by the women's bodies associates male orgasm with the posi­
tions expressed in the articles. Ever wonder why men are so passion­
ate about the First Amendment? At the same time the articles he_lp
make it seem legitimate to treat women the way Playboy does, be­ _ _

cause the articles are so legitimate. The sex contextualizes the articles . .
and the articles contextualize the sex.
Playboy defends itself against the charge of being merely a skin

138
 Playboy's Money

magazine by pointing to having published many people it calls fem­

inists, some we might call feminists, women like Gloria Emerson,
Susan Sontag, Doris Lessing, Joyce Carol Oates, Pearl Buck, and
Mary McCarthy. And interviews with Germaine Greer, Jane Fonda,
Betty Friedan, Mary Calderone, Bernadette Devlin, Shere Hite, and
Virginia Johnson. Under the legal doctrine of obscenity, courts may
not take materials apart. They have to take them "as a whole.'' 5_fJay­
boy's format, like that of much pornography, is designed around ob�
scenity law so that its sexual objectification of women is legalized as
well as legitimized through being surrounded by legitimate articles.
!_n one recent case the Supreme Court said that people who are hav­
ing sex on a street corner cannot protect that as speech even if they
are at the same time engaging in valid political dialogue.6 On the level
-of publications, this is what Playboy does. It gets itself off the hook
for pimping women under the "taken as a whole" rule by simulta-
- neo
usly publishing works that are unquestionably protected speech.?
Another way Playboy legitimizes itself is by its research grants.
Playboy has funded particular research items; say you need a video­
tape machine to do an experiment on pornography, they'll send you
a check for $2,500.8 What do we make of this? Perhaps Playboy is
interested in figuring out if there is a relation between explicit sex,
their version, and rape or force or violence and all those things they
say they are so much against and don't do. Maybe Playboy wants the
people who are asking these questions to be friendly to them. When
people claim that the brutalization of women is a recurring theme and
reality of and in Playboy and its imitators, Playboy responds, "We can
infer that they are referring to psychological or social brutalizations
because we never lay a hand on a female except in passion or self­
defense."9 As if passion is never violent, as if women can't wait to
jump on playboys. Psychic or social brutality they own up to only to
trivialize. How sincere or cynical their rejection of rape is, I don't
know. I do know that breaking a cup, accidentally or on purpose, is
made less wrenching by the availability of glue and replacements and
that the line between use and abuse of women, a line Playboy insists
on to defend itself, does not exist in practice.10
As I see it, the cornerstone of Playboy's principled civil libertarian­
ism comes from the bedrock of their material self-interest: "publish­
ing sex." Forget for the moment that what they "publish" is women;
that is sex. The freer the access to sex in print, the more freedom there
is, the sexier the sex is, and the more money they make. Any critique
of this is seen as the forces of darkness moving in to have the gov-

139
Pornography

ernment restrict existing freedom. _Ihe term freedom in the phrase

"freedom of speech" here means free sexual access to women. Free­
dom is freedom of access to us. Listen, I want to increase women's
-power over sexuality, hence over our social definition and treatment.
I think that means decreasing the pornographers' power over it. I
have no particular interest in increasing the power of the state over
sexuality or speech. I do not have that kind of faith in the govern­
ment. It has largely operated from the same perspective that Playboy
does-that is, the male point of view. At least, no one has yet con­
vinced me that extending the obscenity prohibition, liberalizing its
application, would do anything but further eroticize pornography.
Suppressing obscenity criminally has enhanced its value, made it
more attractive and more expensive and a violation to get, therefore
more valuable and more sexually exciting. Censoring pornography
has not delegitimized it; I want to delegitimize it. What would do that
is unclear to me at this time. Maybe there is a way. There needs to
be. It is not that I think the state can't do anything for women in this
area. I think making sexual harassment sex discrimination has helped
delegitimize sexual harassment. That is as far as I have gotten with
the problem at this time.
The First Amendment absolutist position is very different from this
position. Absolutism supposes that we all have an equal interest in
the marketplace of ideas11 it supposedly guarantees. This is not the
case for women. First of all, the marketplace of ideas is literal: those
with the most money can buy the most speech, and women are poor.
Second, protecting pornographers, as the First Amendment now
does, does not promote the freedom of speech of women. It has not
done so. Pornography terrorizes women into silence. Pornography is
therefore not in the interest of our speech. We do not, as women,
have the stake in the existing system we have been said to have. The
First Amendment has also been interpreted to support the speech of
Nazis, as if that would promote the rights of Jews.l2 I doubt that, too,
although the issues are specific to each case. Jews are not lying down
for anti-Semitism any more than women are lying down for misog­
yny. But that isn't a victory for the First Amendment; it's a victory for
Jews and women against odds that the First Amendment has been
used to stack. What I think is that people who are absolutely inter­
ested in the First Amendment should turn their efforts to getting
speech for people, like women, who have been denied that speech
almost entirely, who have not been able to speak or to get themselves
heard. Understanding free speech as an abstract system is a liberal

140
 Playboy's Money

position. Understanding how speech also exists within a substantive

system of power relations is a feminist position.
On the basis of the First Amendment values I have just criticized,
Playboy selects people who epitomize them, people who will also
give Playboy legitimacy, and calls them First Amendment Awards
judges and gives them First Amendment Awards. They make a major
public event of it. In one situation some students objected to the par­
ticipation of one of their professors as a judgeY Discussing this issue
with the students, the professor said that his association with Play­
boy went back to 1971, when it was the only organization willing to
fund his draft counseling activities. He was very impressed with it­
as many people who deal with only the foundation often are, by the
way. They feel that the foundation is socially concerned, that it funds
many highly important activities, and that it is, as they put it, "totally
unrelated to the magazine." (When asked where they think it gets its
money, they demur.) The students asked the professor whether he
really understood their concern with lending his name to legitimizing
the use of women's bodies to make money. He assured them that he
did understand but did not agree that that was what was going on.
They spoke about laundering money and pointed out that he could
object strongly to that laundering, and especially to the exploitation
that originally made that money, without denigrating the worth of
the projects the money was spent on. His bottom line was that he
had taken lots of Hefner's money for lots of very good causes and
was not about to turn on him now. Soon after, however, he with­
drew.14
I learned a lot from this, because it never would have occurred to
me that the professor's original position was a takeable one, even in
the abstract. What does money buy? I mean, if someone gives you
ten dollars to do something good, does that mean you are loyal to
that person for life? If someone who helped you when you were a
starving student rapes a child, are you obligated to defend him in
court? Is there nothing that breaks the loyalty of money, or is it only
an issue of what does or how much money? I had imagined that one
could take the money-for draft counseling if it is needed and no
one else would pay for it-and that would be that. We have found
projects in which people said that no one other than Playboy would
pay for the work, like rape victim assistance kits, for instance.15 So
you take the money and you use it in good ways, in ways that sup­
port your opposition to sexism, knowing Playboy is sexist and that
other women paid for that money. Then I come across someone who

141
Pornography

took such money and felt that it bought extended loyalty, that is, he
was bought, not just his project. There is something about money as
a social relation that I was not taking seriously enough when I
thought that people could take the money and do good things with
it and then have no further ties with or loyalty to Playboy.
Audience: Why can't we take the money and continue to say Playboy
is not okay without delegitimizing our work?
C. M. : In theory, we could take the money and continue to say,
"Playboy's not okay." But even if we do, Playboy uses us to make them­
selves appear okay to the world, by saying that they fund us. This
legitimizes them and everything they do, which undermines our
work. We legitimize them more than our delegitimizing of them ever
takes away-which is part of what powerlessness means. The di­
lemma, of course, is that it is also delegitimizing not to be able to do
feminist work.
To think about whether the question you just asked is a hypothet­
ical one or a question in the real world, I want to ask about the fem­
inism of the projects and the funding relations that are said not to be
undermined when Playboy says they funded it. The pattern of who
Playboy funds and how they do it makes my analysis of their funding
consistent with Playboy's real function in male supremacy. Playboy's
contributions seem typically to be not especially large but very well
targeted. Often they are absolutely crucial to small projects. The
amounts are $1,000, $2,000, $5,000,16 which is a lot to us, but in the
foundation world it is not a lot. A contribution often goes to a group
that is midstream in a project when it is hit by a postage increase or
needs a printed document or pilot leaflet or mailing, or if they can
get this document out maybe other people will give them more
money, or an ongoing community organization suddenly needs to do
a single event. Discrete, crucial events that begin and end, Playboy
tends to fund: little newsletters, documents to get conferences off the
ground, things like that. A lot of them. The Playboy Foundation gives
money to feminists the way a pimp does a prostitute: at desperate
moments, just enough to keep you hooked and in line, never enough
so you don't need to crawl back for more, never enough so you don't
have to worry all the time about how he will see who you are and
what you do, buying gratitude and loyalty way out of proportion to
the amount of money, in part because so little is involved that the re­
lation that money maintains is dependence. You are doing the work,
and he isn't, but you never get enough money not to need him any­
more.

142
 Playboy's Money

This parallel raises the question of whether the specific work Play­
boy funds is in their interest in any way. What Playboy has funded
is a little different from what they will fund in the immediate future,
because they don't have as much money as they have had.17 But their
history with sexology research and the abortion movement is reveal­
ing. Playboy funds Masters and Johnson.18 This makes sense. Not
that Masters and Johnson have not discovered some truth. But their
research, like Playboy, revolves around the search for the perfect fuck,
the modern equivalent of the holy grail. It is about the science, the
technology, of how to produce the same sexuality the pornography
eroticizes without facing the fact th<1t women's unequal social status
is the precondition for their definition of sexual adjustment. Playboy
funded Masters and Johnson's sex therapist training. This is so per­
fect for Playboy's "achiever" philosophy. There is a way to fuck right,
and if you can't manage it, Playboy is there to help you. Beneath this
"how to" is a sexual politics. Technique is never pure means.
Some say that sexology has been monopolized or taken over by
Playboy funding. 19 To ask what it means to take something over is to
need to ask whether the sexologists' sexuality is all that different from
Playboy's sexuality in the first place.20 Playboy's operative definition of
sexuality, like that of most sexology, essentially derives from neo­
Freudian derepression theory, even when Freud is superficially re­
pudiated as inadequately empirically based. (The same basic view of
sexuality can be found in most marxist feminism and in liberalism,
as well as in a lot of behavioral work, such as the 1970 President's
Commission report on obscenity.) This view underlies what has been
called the movement for sexual liberation. A feminist critique of it
suggests that this definition of sexuality frees male sexual aggression.
Making the penis work and getting women to go with that is what
sex research perfects. In other words, saying that Playboy is feminist
means that Playboy furthers the sexual liberation of women, meaning
it frees women for sexual access by men. That is female sexuality,
hence freedom for women, according to them. They will take away
whatever inhibitions we "frigid" ones have had when we say we are
not moved, we don't want "it," you we don't want. Our resistance is
taken as our repression, something we need sex therapy and pornog­
raphy for.
It is interesting that censorship of speech is discussed in the same
terms that this purported sexual restriction is discussed: as "suppres­
sion." Censorship excites men a lot. It is as if they make an analogy
from the Freudian view of the individual experience of sexual inter-

143
Pornography

course to the public experience of sex in words and pictures, so that

censorship is a form of sexual repression. It seems that what they do
to us sexually is their speech. Freedom of sexual explicitness de­
represses the public in the same way that an individual's freedom is
actuated by more intercourse. In other words, the more sex an indi­
vidual or a society has, in print or in life interchangeably, the more
sexually free and healthy he/she/it is.
Without launching into a full critique of Freudian derepression
theory, I will say that I think feminism is developing a non-Freudian
theory of sexuality. Repressed in the Freudian sense is not exactly
what has been done to women's sexuality. We have experienced dead­
ening and silence and subordination. Male sexuality has not exactly
been repressed either. Men have eroticized the idea that their sex­
uality has been denied, but their sexuality has been nothing but ex­
pressed and expressed and expressed. Sexual liberation, from this
perspective, looks like a male rationalization for forcing sex on
women. Intellectually, it derives from Freud, including Freud's (in the
end) disbelief of women's accounts of victimization through sexual
abuse as children. When women reported what had happened to
them, Freud couldn't finally believe it was real, so he invented fan­
tasy to explain the inexplicable and put it in the unconscious. That's
where you keep things you repress; repression is how you keep them
there. All this presupposes that what women said happened didn't.
Check it out: these parts of Freud's formal theory are based on his
substantive belief that women who told him about childhood sexual
abuse were lying.
That Playboy would fund abortion rights-which, as they never
tire of pointing out, they have done from its beginning21-also makes
sense in this context. Abortion allows women to have sex on the same
terms as men have had it: "no consequences."22 The entire right
wing, and men in general, know that abortion has been fought as an
issue of sexual liberation in the sense I mentioned. When women
need abortion, it is often so that, since we cannot stop the sex being
forced on us, we can at least stop being stuck with the reproductive
consequences for the rest of our lives. If women's sexuality means
our being able to have sex initiated by men, or our initiating sex with
men when men want us to, then freeing that sexuality includes sepa­
rating it from reproduction, so that we don't have to stay pregnant
as a result of it. That is the liberation of women: women equaling
heterosexual intercourse, liberation equaling lack of restraints on
men getting it. Abortion offers women the liberal feminist dream of

144
 Playboy's Money

being real women-that is, available to be freely fucked-while still

being able to live out a socially male biography-not having to be
responsible for children. This is the "equality" it offers us. I hope this
makes clear why liberal so-called feminists and the pornographers
wind up on the same side of things.
What I really want to know is how much of the women's movement
the pornographers own. I wonder if there is a relationship between
the money Playboy gives the women's movement and the fact that
we have not yet been able to establish-or as a movement even to
begin-a real critique of pornography.23 It is very difficult to think
certain thoughts, to get beyond certain ways of thinking, if you have
a material investment in not letting your thinking lead in certain di­
rections. Playboy funded one sexual harassment conference proposal
that did not even mention sexuality as part of the problem-it was
entirely an economic analysis.24 Playboy regularly celebrates what is
essentially sexual harassment in its pages, but it's presented as fun,
as consensual, as sex. Maybe the conference organizers would have
had the same analysis of sexual harassment whether or not they were
looking to Playboy for funding. But I doubt that Playboy would have
funded a conference to explore sexual harassment as integral to male
supremacist sexuality.
Some might see feminists' material interest in pornography as sim­
ilar to our material interest in the family or the workplace, like pros­
titutes' interest in pimps: we can't afford to destroy them, we need
them, we are dependent on them, they help us get from one day to
the next. But they also destroy us. Any system of power gives an
interest in the status quo to those it keeps powerless. Our stake in
this family structure, this workplace organization, this sexuality, this
protection racket. This makes me wonder, if taking Playboy's money
is okay, is anybody's money too damaging to take? How about di­
rectly from Hefner? What about Larry Flynt? AI Goldstein? La Cosa
Nostra? If we refuse Playboy's money, is there anyone's money we
will take? How about cosmetic companies? Is there a difference-say,
the famous difference between cause and effect-between those who
create the system and those who pander to it? Or is it just two ways
of getting through another day?
I know it matters how much room we have, but how can a femi­
nism worthy of the name live off something women are paying for?25
If it is Playboy's money that is allowing us to survive, and Playboy is
what I have said it is, is this survival killing us?

145
thirteen

Not a Moral Issue

(1983)
Pornosec, the subsection of the Fiction Department which turned out cheap
pornography for distribution among the proles . . . nicknamed Muck House
by the people who worked in it . . . produce [d] booklets in sealed packets
with titles like Spanking Stories or One Night in a Girls' School, to be bought
furtively by proletarian youths who were under the impression that they
were buying something illegal.

George Orwell, Nineteen Eighty-four (1949)

A
critique of pornography1 is to feminism what its defense is
to male supremacy. Central to the institutionalization of
male dominance, pornography cannot be reformed or sup­
pressed or banned. It can only be changed. The legal doctrine of ob­
scenity, the state's closest approximation to addressing the pornog­
raphy question, has made the First Amendment2 into a barrier to this
process. This is partly because the pornographers' lawyers have per­
suasively presented First Amendment absolutism/ their advocacy
position, as a legal fact, which it never has been. But they have gotten
away with this (to the extent they have) in part because the abstract­
ness of obscenity as a concept, simated within an equally abstract
approach to freedom of speech embodied in First Amendment doc­
trine, has made the indistinguishability of the pornographers' speech
from everyone else's speech, their freedom from our freedom, appear
credible, appealing, necessary, inevitable, principled. 4 To expose the
absence of a critique of genderS in this area of law is to expose both
the enforced silence of women and the limits of liberalism.
This brief preliminary commentary focuses on the obscenity stan­
dard in order to explore some of the larger implications of a feminist
critique of pornography for First Amendment theory. This is the ar-

This speech was originally delivered to the Morality Colloquium, University of Min­
nesota, Feb. 23, 1983. These ideas were also discussed at the National Conference on
Women and the Law, Apr. 4, 1 983, and at the Conference on Media Violence and Por­
nography, Ontario Institute for Studies in Education, Feb. 4, 1984. The title is a play
o n "Not a Love Story," a 1983 a nti-pornography film by the Canadian Film Board.

146
 Not a Moral Issue

gument. Obscenity law is concerned with morality, specifically mor­

als from the male point of view, meaning the standpoint of male dom­
inance. The feminist critique of pornography is a politics, specifically
politics from women's point of view, meaning the standpoint of the
subordination of women to men. 6 Morality here means good and evil;
politics means power and powerlessness. Obscenity is a moral idea;
pornography is a political practice. Obscenity is abstract; pornogra­
phy is concrete. The two concepts represent two entirely different
things. Nudity, explicitness, excess of candor, arousal or excitement,
prurience, unnaturalness-these qualities bother obscenity law
when sex is depicted or portrayed. Abortion, birth control informa­
tion, and treatments for "restoring sexual virility" (whose, do you
suppose?) have also been included.7 Sex forced on real women so that
it can be sold at a profit to be forced on other real women; women's
bodies trussed and maimed and raped and made into things to be
hurt and obtained and accessed, and this presented as the nature of
women; the coercion that is visible and the coercion that has become
invisible-this and more bothers feminists about pornography. Ob­
scenity as such probably does little harm;8 pornography causes atti­
tudes and behaviors of violence and discrimination that define the
treatment and status of half of the population.9 To make the legal and
philosophical consequences of this distinction clear, I will describe
the feminist critique of pornography, criticize the law of obscenity in
terms of it, then discuss the criticism that pornography "dehuman­
izes" women to distinguish the male morality of liberalism and ob­
scenity law from a feminist political critique of pornography.10
This inquiry is part of a larger project that attempts to account for
gender inequality in the socially constructed relationship between
power-the political-on the one hand and the knowledge of truth
and reality-the epistemological-on the other. 11 For example, the
candid description Justice Stewart once offered of his obscenity stan­
dard, "I know it when I see it," 12 becomes even more revealing than
it is usually understood to be if taken as a statement that connects
epistemology with power. If I ask, from the point of view of women's
experience, does he know what I know when I see what I see, I find
that I doubt it, given what's on the newsstands. How does his point
of view keep what is there, there? To liberal critics, his admission
exposed the obscenity standard's relativity, its partiality, its insuffi­
cient abstractness. Not to be emptily universal, to leave your con­
creteness showing, is a sin among men. Their problem with Justice
Stewart's formulation is that it implies that anything, capriciously,

147
Pornography

could be suppressed. They are only right by half. My problem is more

the other half: the meaning of what his view permits, which, as it
turns out, is anything but capricious. In fact, it is entirely systematic
and determinate. To me, his statement is precisely descriptively ac­
curate; its candor is why it has drawn so much criticism. 13 Justice
Stewart got in so much trouble because he said out loud what is ac­
tually done all the time; in so doing, he both did it and gave it the
stature of doctrine, even if only dictum. That is, the obscenity stan­
dard-in this it is not unique-is built on what the male standpoint
sees. My point is: so is pornography. In this way the law of obscenity
reproduces the pornographic point of view on women on the level of
Constitutional jurisprudence.

Pornography, in the feminist view, is a form of forced sex, a practice

of sexual politics, an institution of gender inequality. In this perspec­
tive, pornography is not harmless fantasy or a corrupt and confused
misrepresentation of an otherwise natural and healthy sexuality.
Along with the r���d_.fl!_<:>_s�i!\lt�()n in which it particip�tes, por­
_ _ "
y
nography institutionalizes the sexualit of male supremacy, which
ll
fuses the erotization of dominance a d submission with the social
construction of male and female.14 Gender is sexual. Pornography
constitutes the meaning of that sexuality. Men treat women as who
they see women as being. Pornography constructs who that is. Men's
power over women means that the way men see women defines who
women can be. Pornography is that way.
In pornography, women desire dispossession and cruelty. Men,
permitted to put words (and other things) in women's mouths, create
scenes in which women desperately want to be bound, battered, tor­
tured, humiliated, and killed. Or merely taken and used. This is
erotic to the male point of view. Subjection itself, with self-determina­
tion ecstatically relinquished, is the content of women's sexual desire
and desirability. Women are there to be violated and possessed, men
to violate and possess them, either on screen or by camera or pen,
on behalf of the viewer.
One can be for or against this pornography without getting beyond
liberalism. The critical yet formally liberal view of Susan Griffin, for
example, conceptualizes eroticism as natural and healthy but cor­
rupted and confused by "the pornographic mind ."15 Pornography
distorts Eros, which preexists and persists, despite male culture's
pornographic "revenge" upon it. Eros is, unaccountably, still there.

148
 Not a Moral Issue

Pornography mis-takes it, mis-images it, mis-represents it. There is

no critique of reality here, only objections to how it is seen; no critique
of that reality that pornography imposes on women's real lives, those
lives that are so seamlessly consistent with the pornography that por­
nography can be credibly defended by saying it is only a mirror of
reality.
Contrast this view with the feminist analysis of Andrea Dworkin,
in which sexuality itself is a social construct, gendered to the ground.
Male dominance here is not an artificial overlay upon an underlying
inalterable substratum of uncorrupted essential sexual being. Sexual­
ity free of male dominance will require change, not reconceptualiza­
tion, transcendence, or excavation. Pornography is not imagery in
some relation to a reality elsewhere constructed. It is not a distortion,
reflection, projection, expression, fantasy, representation, or symbol
either. It is sexual reality. Dworkin's Pornography: Men Possessing
Women16 presents a sexual theory of gender inequality of which por­
nography is a core constitutive practice. The way pornography pro­
duces its meaning constructs and defines men and women as such.
Gender is what gender means.17 It has no basis in anything other
than the social reality its hegemony constructs. The process that gives
sexuality its male supremacist meaning is therefore the process
through which gender inequality becomes socially real.
In this analysis the liberal defense of pornography as human sexual
liberation, as derepression-whether by feminists, lawyers, or neo­
Freudians18-is a defense not only of force and sexual terrorism, but
of the subordination of women. Sexual liberation in the liberal sense
frees male sexual aggression in the feminist sense. What looks like
love and romance in the liberal view looks a lot like hatred and tor­
ture in the feminist view. Pleasure and eroticism become violation.
Desire appears as lust for dominance and submission. The vulnera­
bility of women's projected sexual availability-that acting we are al­
lowed: asking to be acted upon-is victimization. Play conforms to
scripted roles, fantasy expresses ideology-is not exempt from it­
and admiration of natural physical beauty becomes objectification.
The experience of the (overwhelmingly) male audiences who con­
sume pornographyl9 is therefore not fantasy or simulation or
catharsis20 but sexual reality: the level of reality on which sex itself
largely operates. To understand this, one does not have to notice that
pornography models are real women to whom something real is
being done/1 nor does one have to inquire into the systematic in­
fliction of pornographic sexuality upon women,22 although it helps.

149
Pornography

The aesthetic of pornography itself, the way it provides what those

who consume it want, is itself the evidence. When uncensored ex­
plicit-that is, the most pornographic-pornography tells all, all
means what a distanced detached observer would report about who
did what to whom. This is the turn-on. Why does observing sex ob­
jectively presented cause the male viewer to experience his own sex­
uality? Because his eroticism is, socially, a watched thing.
If objectivity is the epistemological stance of which objectification
is the social process,23 the way a perceptual posture is embodied as a
social form of power, the most sexually potent depictions and de­
scriptions would be the most objective blow-by-blow re-presenta­
tions. Pornography participates in its audience's eroticism because it
creates an accessible sexual object, the possession and consumption
of which is male sexuality, to be consumed and possessed as which
is female sexuality. In this sense, sex in life is no less mediated than
it is in art. Men have sex with their image of a woman. Escalating ex­
plicitness, "exceeding the bounds of candor,"24 is the aesthetic of por­
nography not because the materials depict objectified sex but because
they create the experience of a sexuality that is itself objectified. It is
not that life and art imitate each other; in sexuality, they are each
other.

The law of obscenity,25 the state's primary approach26 to its version of

the pornography question, has literally nothing in common with this
feminist critique. Their obscenity is not our pornography. One com­
mentator has said, "Obscenity is not suppressed primarily for the
protection of others. Much of it is suppressed for the purity of the
'community.' Obscenity, at bottom, is not a crime. Obscenity is a
sin." 27 This is, on one level, literally accurate. Men are turned on by
obscenity, including its suppression, the same way they are by sin.
Animated by morality from the male standpoint, in which viola­
tion-of women and rules-is eroticized, obscenity law can be seen
to proceed according to the interest of male power, robed in gender­
neutral good and evil.
Morality in its specifically liberal form (although, as with most di­
mensions of male dominance, the distinction between left and right
is more formal than substantive) revolves around a set of parallel dis­
tinctions that can be consistently traced through obscenity law. Even
though the approach this law takes to the problem it envisions has
shifted over time, its fundamental norms remain consistent: public is

150
 Not a Moral Issue

opposed to private, in parallel with ethics and morality, and factual

is opposed to valued determinations. Under male supremacy, these
distinctions are gender-based: female is private, moral, valued, sub­
jective; male is public, ethical, factual, objective.28 If such gendered
concepts are constructs of the male experience, imposed from the
male standpoint on society as a whole, liberal morality expresses
male supremacist politics. That is, discourse conducted in terms of
good and evil that does not expose the gendered foundations of these
concepts proceeds oblivious to-and serves to disguise-the posi­
tion of power that underlies, and is furthered by, that discourse.
For example, obscenity law proposes to control what and how sex
can be publicly shown. In practice, its standard centers upon the
same features feminism identifies as key to male sexuality: the erect
penis and penetration.29 Historically, obscenity law was vexed by re­
stricting such portrayals while protecting great literature. (Nobody
considered protecting women. ) Having solved this by exempting
works of perceived value from obscenity restrictions,3° the subse­
quent relaxation-some might say collapse-of obscenity restrictions
in the last decade reveals a significant shift. The old private rules have
become the new public rules. The old law governing pornography
was that it would be publicly repudiated while being privately con­
sumed and actualized: do anything to women with impunity in pri­
vate behind a veil of public denial and civility. Now pornography is
publicly celebrated.31 This victory for Freudian derepression theory
probably did not alter the actual treatment of women all that much.
Women were sex and still are sex. Greater efforts of brutality have
become necessary to eroticize the tabooed-each taboo being a hi­
erarchy in disguise-since the frontier of the tabooed keeps vanish­
ing as one crosses it. Put another way, more and more violence has
become necessary to keep the progressively desensitized consumer
aroused to the illusion that sex is (and he is) daring and dangerous.
Making sex with the powerless "not allowed" is a way of defining
"getting it" as an act of power, an assertion of hierarchy. In addition,
pornography has become ubiquitous. Sexual terrorism has become
democratized. Crucially, pornography has become truly available to
women for the first time in history. Show me an atrocity to women,
I'll show it to you eroticized in the pornography. This central mech­
anism of sexual subordination, this means of systematizing the defi­
nition of women as a sexual class, has now become available to its
victims for scrutiny and analysis as an open public system, not just
as a private secret abuse.32 Hopefully, this was a mistake.

151
Pornography

Reexamining the law of obscenity in light of the feminist critique

of pornography that has become possible, it becomes clear that male
morality sees as good that which maintains its power and sees as evil
that which undermines or qualifies it or questions its absoluteness.
Differences in the law over time-such as the liberalization of ob­
scenity doctrine-reflect either changes in the group of men in power
or shifts in their perceptions of the best strategy for maintaining male
supremacy-probably some of both. But it must be made to work.
The outcome, descriptively analyzed, is that obscenity law prohibits
what it sees as immoral, which from a feminist standpoint tends to
be relatively harmless, while protecting what it sees as moral, which
from a feminist standpoint is often that which is damaging to women.
So it, too, is a politics, only covertly so. What male morality finds
evil, meaning threatening to its power, feminist politics tends to find
comparatively harmless. What feminist politics identifies as central
in our subordination-the erotization of dominance and submis­
sion-male morality tends to find comparatively harmless or defends
as affirmatively valuable, hence protected speech.
In 1973 obscenity under law came to mean that which '"the average
person applying contemporary community standards' would find
that, . . . taken as a whole, appeals to the prurient interest . . .
[which] depicts or describes, in a patently offensive way, sexual con­
duct specifically defined by the applicable state law; and [which],
taken as a whole, lacks serious literary, artistic, political, or scientific
value."33 Feminism doubts whether the average person, gender neu­
tral, exists; has more questions about the content and process of def­
inition of community standards than about deviations from them;
wonders why prurience counts but powerlessness doesn't; why sen­
sibilities are better protected from offense than women are from ex­
ploitation; defines sexuality, hence its violation and expropriation,
more broadly than does any state law and wonders why a body of
law that can't in practice tell rape from intercourse should be en­
trusted with telling pornography from anything less. The law of ob­
scenity says that intercourse on street corners is not legitimized by
the fact that the persons are "simultaneously engaged in a valid po­
litical dialogue."34 But, in a feminist light, one sees that the require­
ment that a work be considered "as a whole" legitimizes something
very like that on the level of publications like Playboy. 35 Experimental
evidence is beginning to support what victims have long known: le­
gitimate settings diminish the injury perceived as done to the women
whose trivialization and objectification it contextualizes.36 Besides, if

152
 Not a Moral Issue

a woman is subjected, why should it matter that the work has other
value?37 Perhaps what redeems a work's value among men enhances
its injury to women. Existing standards of literature, art, science, and
politics are, in feminist light, remarkably consonant with pornogra­
phy's mode, meaning, and message. Finally and foremost, a feminist
approach reveals that although the content and dynamic of pornog­
raphy are about women-about the sexuality of women, about
women as sexuality-in the same way that the vast majority of "ob­
scenities" refer specifically to women's bodies, our invisibility has
been such that the law of obscenity has never even considered pornog­
raphy a women's issue. 38
To appeal to "prurient interest"39 means, I believe, to give a man
an erection. Men are scared to make it possible for some men to tell
other men what they can and cannot have sexual access to because
men have power. If you don't let them have theirs, they might not let
you have yours. This is why the indefinability of pornography; all the
"one man's this is another man's that,"40 is so central to pornogra­
phy's definition. It is not because they are such great liberals, but be­
cause some men might be able to do to them whatever they can do
to those other men, and this is more why the liberal principle is what
it is. Because the fought-over are invisible in this, it obscures the fact
that the fight over a definition of obscenity is a fight among men over
the best means to guarantee male power as a system. The question
is, whose sexual practices threaten this system that can afford to be
sacrificed to its maintenance for the rest? Public sexual access by men
to anything other than women is less likely to be protected speech.
This is not to say that male sexual access to anything-children, other
men, women with women, objects, animals-is not the real system.
The issue is how public that system will be; the obscenity laws, their
definition and patterns of enforcement, have a major role in regulat­
ing that. The bind of the "prurient interest" standard here is that, to
find it as a fact, someone has to admit that they are sexually aroused
by the materials, 41 but male sexual arousal signals the importance of
protecting them. They put themselves in this bind and then wonder
why they cannot agree. Sometimes I think that what is ultimately
found obscene is what does not turn on the Supreme Court, or what
revolts them more, which is rare, since revulsion is eroticized; some­
times I think that what is obscene is what turns on those men the
men in power think they can afford to ignore; sometimes I think that
part of it is that what looks obscene to them is what makes them see
themselves as potential targets of male sexual aggression, even if

153
Pornography

only momentarily; sometimes I think that the real issue is how male
sexuality is presented, so that anything can be done to a woman, but
obscenity is sex that makes male sexuality look bad.42
The difficulties courts have in framing workable standards to sepa­
rate "prurient" from other sexual interest, commercial exploitation
from art or advertising, sexual speech from sexual conduct, and ob­
scenity from great literature make the feminist point. These lines
have proven elusive in law because they do not exist in life. Com­
mercial sex resembles art because both exploit women's sexuality. The
liberal's slippery slope is the feminist totality. Whatever obscenity
may do, pornography converges with more conventionally accept­
able depictions and descriptions just as rape converges with inter­
course because both express the same power relation. Just as it is
difficult to distinguish literature or art against a background, a stan­
dard, of objectification, it is difficult to discern sexual freedom against
a background, a standard, of sexual coercion. This does not mean it
cannot be done. It means that legal standards will be practically
unenforceable, will reproduce this problem rather than solve it, until
they address its fundamental issue-gender inequality-directly.
To define the pornographic as the "patently offensive" further mis­
construes its harm. Pornography is not bad manners or poor choice
of audience; obscenity is. Pornography is also not an idea; obscenity
is. The legal fiction whereby the obscene is "not speech"43 has de­
ceived few; it has effectively avoided the need to adjudicate pornog­
raphy's social etiology. But obscenity law got one thing right: pornog­
raphy is more actlike than thoughtlike. The fact that pornography, in
a feminist view, furthers the idea of the sexual inferiority of women,
a political idea, does not make the pornography itself a political idea.
That one can express the idea a practice embodies does not make that
practice into an idea. Pornography is not an idea any more than seg­
regation is an idea, although both institutionalize the idea of the in­
feriority of one group to another. The law considers obscenity de­
viant, antisocial. If it causes harm, it causes antisocial acts, acts
against the social order. 44 In a feminist perspective, pornography is
the essence of a sexist social order, its quintessential social act.
If pornography is an act of male supremacy, its harm is the harm
of male supremacy made difficult to see because of its pervasiveness,
potency, and success in making the world a pornographic place. Spe­
cifically, the harm cannot be discerned from the objective standpoint
because it is so much of "what is." Women live in the world pornog­
raphy creates. We live its lie as reality. As Naomi Scheman has said,

154
 Not a Moral Issue

"Lies are what we have lived, not just what we have told, and no
story about correspondence to what is real will enable us to distin­
guish the truth from the lie."45 So the issue is not whether pornog­
raphy is harmful, but how the harm of pornography is to become
visible. As compared with what? To the extent pornography succeeds
in constructing social reality, it becomes invisible as harm. Any percep­
tion of the success, therefore the harm, of pornography, I will argue,
is precluded by liberalism and so has been defined out of the custom­
ary approach taken to, and dominant values underlying, the First
Amendment.
The theory of the First Amendment under which most pornogra­
phy is protected from governmental restriction proceeds from liberal
assumptions46 that do not apply to the situation of women. First
Amendment theory, like virtually all liberal legal theory, presumes
the validity of the distinction between public and private: the "role
of law [is] to mark and guard the line between the sphere of social
power, organized in the form of the state, and the area of private
right."47 On this basis, courts distinguish between obscenity in public
(which can be regulated, even if some attempts founder, seemingly
in part because the presentations are public)48 and the private posses­
sion of obscenity in the home.49 The problem is that not only the
public but also the private is a "sphere of social power" of sexism.
On paper and in life pornography is thrust upon unwilling women
in their homes. 50 The distinction between public and private does not
cut the same for women as for men. 51 It is men's right to inflict por­
nography upon women in private that is protected.
The liberal theory underlying First Amendment law further be­
lieves that free speech, including pornography, helps discover truth.
Censorship restricts society to partial truths. So why are we now­
with more pornography available than ever before-buried in all
these lies? Laissez faire might be an adequate theory of the social
preconditions for knowledge in a nonhierarchical society. But in a
society of gender inequality, the speech of the powerful impresses its
view upon the world, concealing the truth of powerlessness under
that despairing acquiescence that provides the appearance of consent
and makes protest inaudible as well as rare. Pornography can invent
women because it has the power to make its vision into reality, which
then passes, objectively, for truth. So while the First Amendment
supports pornography, believing that consensus and progress are fa­
cilitated by allowing all views, however divergent and unorthodox,
it fails to notice that pornography (like the racism, in which I include

155
Pornography

anti-Semitism, of the Nazis and the Klan) is not at all divergent or

unorthodox. It is the ruling ideology. Feminism, the dissenting view,
is suppressed by pornography. Thus, while defenders of pornogra­
phy argue that allowing all speech, including pornography, frees the
mind to fulfill itself, pornography freely enslaves women's minds and
bodies inseparably, normalizing the terror that enforces silence from
women's point of view.
To liberals, speech must never be sacrificed for other social goals. 52
But liberalism has never understood that the free speech of men si­
lences the free speech of women. It is the same social goal, just other
people. This is what a real inequality, a real conflict, a real disparity in
social power looks like. The law of the First Amendment compre­
hends that freedom of expression, in the abstract, is a system, but it
fails to comprehend that sexism (and racism), in the concrete, are also
systems. That pornography chills women's expression is difficult to
demonstrate empirically because silence is not eloquent. Yet on no
more of the same kind of evidence, the argument that suppressing
pornography might chill legitimate speech has supported its protec­
tion.
First Amendment logic, like nearly all legal reasoning, has diffi­
culty grasping harm that is not linearly caused in the "John hit Mary"
sense. The idea is that words or pictures can be harmful only if they
produce harm in a form that is considered an action. Words work in
the province of attitudes, actions in the realm of behavior. Words can­
not constitute harm in themselves-never mind libel, invasion of pri­
vacy, blackmail, bribery, conspiracy or most sexual harassment. But
which is saying "kill" to a trained guard dog, a word or an act? Which
is its training? How about a sign that reads "Whites only"? Is that the
idea or the practice of segregation? Is a woman raped by an attitude
or a behavior? Which is sexual arousal? Notice that the specific idea
of causality used in obscenity law dates from around the time that it
was first "proved" that it is impossible to prove that pornography
causes harm. 53 Instead of the more complex causality implicit in the
above examples, the view became that pornography must cause
harm the way negligence causes car accidents or its effects are not
cognizable as harm. The trouble with this individuated, atomistic,
linear, isolated, tortlike-in a word, positivistic-conception of in­
jury is that the way pornography targets and defines women for
abuse and discrimination does not work like this . It does hurt indi­
viduals, not as individuals in a one-at-a-time sense, but as members
of the group "women." Harm is caused to one individual woman

156
 Not a Moral Issue

rather than another essentially the way one number rather than an­
other is caused in roulette. But on a group basis, as women, the se­
lection process is absolutely selective and systematic. Its causality is
essentially collective and totalistic and contextual. To reassert atom­
istic linear causality as a sine qua non of injury-you cannot be
harmed unless you are harmed through this etiology-is to refuse to
respond to the true nature of this specific kind of harm. Such a re­
fusal calls for explanation. Morton Horowitz says that the issue of
causality in tort law is "one of the pivotal ideas in a system of legal
thought that sought to separate private law from politics and to in­
sulate the legal system from the threat of redistribution." 54 Perhaps
causality in the pornography issue is an attempt to privatize the in­
jury pornography does to women in order to insulate the same sys­
tem from the threat of gender equality, also a form of redistribution.
Women are known to be brutally coerced into pornographic per­
formances.55 But so far it is only with children, usually male children,
that courts consider that the speech of pornographers was once
someone else's life.56 Courts and commissions and legislatures and
researchers have searched and re-searched, largely in vain, for the
injury of pornography in the mind of the (male) consumer or in "so­
ciety," or in empirical correlations between variations in levels of "an­
tisocial" acts and liberalization in obscenity laws. 57 Speech can be reg­
ulated "in the interests of unwilling viewers, captive audiences,
young children, and beleaguered neighborhoods,"58 but the normal
level of sexual force-force that is not seen as force because it is in­
flicted on women and called sex-has never been a policy issue. Until
the last few years experimental research never approached the ques­
tion of whether pornographic stimuli might support sexual aggres­
sion against women59 or whether violence might be sexually stimu­
lating or have sexual sequelae.60 Only in the last few months have
laboratory researchers begun to learn the consequences for women
of so-called consensual sexual depictions that show normal domi­
nance and submission. 61 We still don't have this kind of data on the
impact of female-only nudity or of depictions of specific acts like pen­
etration or even of mutual sex in a social context of gender inequality.
The most basic assumption underlying First Amendment adjudi­
cation is that, socially, speech is free. The First Amendment says,
"Congress shall not abridge the freedom of speech. " Free speech exists.
The problem for government is to avoid constraining that which, if
unconstrained by government, is free. This tends to presuppose that
whole segments of the population are not systematically silenced so-

157
Pornography

cially, prior to government action. The place of pornography in the

inequality of the sexes makes such a presupposition untenable and
makes any approach to our freedom of expression so based worse
than useless. For women, the urgent issue of freedom of speech is
not primarily the avoidance of state intervention as such, but finding
an affirmative means to get access to speech for those to whom it has
been denied.

Beyond offensiveness or prurience, to say that pornography is "de­

humanizing" is an attempt to articulate its harm. But "human being"
is a social concept with many possible meanings. Here I will criticize
some liberal moral meanings of personhood through a feminist polit­
ical analysis of what pornography does to women, showing how the
inadequacy of the liberal dehumanization critique reflects the inade­
quacy of its concept of person. In a feminist perspective, pornogra­
phy dehumanizes women in a culturally specific and empirically de­
scriptive-not liberal moral-sense. Pornography dispossesses
women of the power of which, in the same act, it possesses men: the
power of sexual, hence gender, definition. Perhaps a human being,
for gender purposes, is someone who controls the social definition
of sexuality.
A person, in one Kantian view, is a free and rational agent whose
existence is an end in itself, as opposed to instrumental.62 In pornog­
raphy women exist to the end of male pleasure. Kant sees human as
characterized by universal abstract rationality; with no component of
individual or group differences, and as a "bundle of rights."63 Por­
nography purports to define what a woman is. It does this on a group
basis, including when it raises individual qualities to sexual stereo­
types, as in the strategy of Playboy's "Playmate of the Month." I also
think that pornography derives much of its sexual power, as well as
part of its justification, from the implicit assumption that the Kantian
notion of person actually describes the condition of women in this
society. According to that assumption, if we are there, we are freely
and rationally there, when the fact is that women-in pornography
and in part because of pornography-have no such rights.
Other views of the person include one of Wittgenstein's, who says
that the best picture of the human soul is the human body.64 I guess
this depends upon what picture of the human body you have in
mind. Marx's work offers various concepts of personhood deducible

158
 Not a Moral Issue

from his critique of various forms of productive organization. A per­

son is defined by whatever material conditions the society values; in
a bourgeois society, a person might be a property owner.65 The prob­
lem here is that women are the property that constitutes the person­
hood, the masculinity, of men under capitalism. Thinking further in
mandan theoretical terms, I have wondered whether women in por­
nography are more properly conceived as fetishes or objects. Does
pornography more attribute lifelikeness to that which is dead-as in
fetishism-or make deathlike that which is alive-as in objectifica­
tion? I guess it depends upon whether, socially speaking, women are
more alive than dead.
In Hume's concept of a person as a bundle or collection of sense
perceptions, such that the feeling of self-identity over time is a per­
sistent illusion, 66 we finally have a view of the human that coincides
with the view of women in pornography. That is, the empiricist view
of person is the pornographic view of women. No critique of domi­
nance or subjection, certainly not of objectification, can be grounded
in a vision of reality in which all sense perceptions are just sense
perceptions. This is one way an objectivist epistemology supports the
unequal holding and wielding of power in a society in which the
persistent illusion of selfhood of one half of the population is mate­
rially supported and maintained at the expense of the other half.
What I'm saying is that those who are socially allowed a self are also
allowed the luxury of postulating its illusoriness and having that
called a philosophical position. Whatever self they ineluctably have,
they don't lose by saying it is an illusion. Even if it is not particularly
explanatory, such male ideology, if taken as such, is often highly de­
scriptive. Thus Hume defines the human in the same terms feminism
uses to define women's dehumanization: for women in pornography,
the self is, precisely, a persistent illusion.
Contemporary ordinary language philosopher Bernard Williams
says "person" ordinarily means things like valuing self-respect and
feeling pain.67 How self is defined, what respect attaches to, stimuli
of pleasure and to an extent stimuli and thresholds of pain, are cul­
tural variables. Women in pornography are turned on by being put
down and feel pain as pleasure. We want it; we beg for it; we get it.
To argue that this is dehumanizing need not mean to take respect as
an ahistorical absolute or to treat the social meaning of pain as invar­
iant or uniformly negative. Rather, it is to argue that it is the accept­
ance of the social definition of these values-the acceptance of self-

159
Pornography

respect and the avoidance of pain as values-that permits the eroti­

zation of their negative-debasement and torture-in pornography.
It is only to the extent that each of these values is accepted as human
that their negation becomes a quality of, and is eroticized in and as,
woman. Only when self-respect is accepted as human does debase­
ment become sexy and female; only when the avoidance of pain is
accepted as human does torture become sexy and female. In this way,
women's sexuality as expressed in pornography precisely negates her
status as human. But there is more: exactly what is defined as de­
grading to a human being, however that is socially defined, is exactly
what is sexually arousing to the male point of view in pornography,
just as the one to whom it is done is the girl regardless of sex. In this
way, it is specifically women whom pornography identifies with and
by sexuality, as the erotic is equated with the dehumanizing.
To define the pornographic as that which is violent, not sexual, as
liberal moral analyses tend to, is to trivialize and evade the essence
of this critique, while seeming to express it. As with rape, where the
issue is not the presence or absence of force but what sex is as distinct
from coercion, 68 the question for pornography is what eroticism is as
distinct from the subordination of women. This is not a rhetorical
question. Under male dominance, whatever sexually arouses a man
is sex. In pornography the violence is the sex. The inequality is the
sex. Pornography does not work sexually without hierarchy. If there
is no inequality, no violation, no dominance, no force, there is no
sexual arousal. 69 Obscenity law does the pornographers a real favor
by clouding this, pornography's central dynamic, under the coy
gender-neutral abstraction of "prurient interest." Obscenity law also
adds the attraction of state prohibition, a tool of dominance, to what­
ever the law of obscenity is seen to encompass.
Calling rape and pornography violent, not sexual, the banner of
much antirape and antipornography organizing/0 is an attempt to
protest that women do not find rape pleasurable or pornography
stimulating while avoiding claiming this rejection as women's point of
view. The concession to the objective stance, the attempt to achieve
credibility by covering up the specificity of one's viewpoint, not only
abstracts from our experience, it lies about it. Women and men know
men find rape sexual and pornography erotic. It therefore is. We also
know that sexuality is commonly violent without being any the less
sexual. To deny this sets up the situation so that when women are

160
 Not a Moral Issue

aroused by sexual violation, meaning we experience it as our sexual­

ity, the feminist analysis is seen to be contradicted. But it is not con­
tradicted, it is proved. The male supremacist definition of female sex­
uality as lust for self-annihilation has won. It would be surprising,
feminist analysis would be wrong, and sexism would be trivial, if this
were merely exceptional. (One might ask at this point, not why some
women embrace explicit sadomasochism, but why any women do
not.) To reject forced sex in the name of women's point of view re­
quires an account of women's experience of being violated by the
same acts both sexes have learned as natural and fulfilling and erotic,
since no critique, no alternatives, and few transgressions have been
permitted.
The depersonalization critique, with the "violence not sex" cri­
tique, exposes pornography's double standard but does not attack the
masculinity of the standards for personhood and for sex that pornog­
raphy sets. The critiques are thus useful, to some extent deconstruc­
tive, but beg the deeper questions of the place of pornography in
sexuality and of sexuality in the construction of women's definition
and status, because they act as if women can be "persons" by inter­
pretation, as if the concept is not, in every socially real way, defined
by and in terms of and reserved for men and as if sexuality is not
itself a construct of male power. To do this is to act as if pornography
did not exist or were impotent . Deeper than the personhood question
or the violence question is the question of the mechanism of social
causation by which pornography constructs women and sex, defines
what "woman" means and what sexuality is, in terms of each other.
The law of obscenity at times says that sexual expression is only
talk, therefore cannot be intrinsically harmful. Yet somehow porno­
graphic talk is vital to protect. If pornography is a practice of the
ideology71 of gender inequality, and gender is an ideology, if pornog­
raphy is sex and gender is sexual, the question of the relation be­
tween pornography and life is nothing less than the question of the
dynamic of the subordination of women to men. If "objectification
. . . is never trivial,"72 girls are ruined by books. 73 To comprehend this
process will require an entirely new theory of social causality-of
ideology in life, of the dynamic of mind and body in social power­
that connects point of view with politics. The development of such
an analysis has been stymied equally by fear of repressive state use
of any critique of any form of expression, by the power of pornog-

161
Pornography

raphy to create women in its image of use, and by the power of por­
nographers to create a climate hostile to inquiry into their power and
profits.

I said all that in order to say this: the law of obscenity has the same
surface theme and the same underlying theme as pornography itself.
Superficially both involve morality: rules made and transgressed for
purposes of sexual arousal. Actually, both are about power, about the
equation between the erotic and the control of women by men: women
made and transgressed for purposes of sexual arousal. It seems es­
sential to the kick of pornography that it be to some degree against
the rules, but it is never truly unavailable or truly illegitimate. Thus
obscenity law, like the law of rape, preserves the value of, without
restricting the ability to get, that which it purports to both devalue
and to prohibit. Obscenity law helps keep pornography sexy by put­
ting state power-force, hierarchy-behind its purported prohibi­
tion on what men can have sexual access to. The law of obscenity is
to pornography as pornography is to sex: a map that purports to be
a mirror, a legitimization and authorization and set of directions and
guiding controls that project themselves onto social reality while
claiming merely to reflect the image of what is already there. Pornog­
raphy presents itself as fantasy or illusion or idea, which can be good
or bad as it is accurate or inaccurate, while it actually, hence accurately,
distributes power. Liberal morality cannot deal with illusions that
constitute reality because its theory of reality, lacking a substantive
critique of the distribution of social power, cannot get behind the
empirical world, truth by correspondence. On the surface, both por­
nography and the law of obscenity are about sex. In fact, it is the
status of women that is at stake.

162
fourteen
Francis Biddle's Sister:
Pornography, Civil Rights, and Speech
(1984)

I
thank the committee that selected me for this lectureship, the
Harvard faculty, Dean Vorenburg, and the Biddies for this thrill,
this honor, and this forum. I am also existentially amazed to be
here.
Topically, in order, I will first situate a critique of pornography
within a feminist analysis of the condition of women. I will speak of
what pornography means for the social status and treatment of
women. I will briefly contrast that with the obscenity approach, the
closest this government has come to addressing pornography. Next I
will outline an argument for the constitutionality of the ordinance
Andrea Dworkin and I conceived, in which we define pornography
as a civil rights violation.1 Here I will address what pornography does
as a practice of sex discrimination, and the vision of the First Amend­
ment with which our law is consistent. Evidence, much of it drawn
from hearings on the ordinance in Minneapolis/ supports this argu­
ment. The Supreme Court has never considered this legal injury be­
fore, nor the factual support we bring to it. They have allowed the
recognition of similar injuries to other people, consistent with their
interpretation of the First Amendment. More drastic steps have been
taken on a showing of a great deal less harm, and the courts have
allowed it. The question is: Will they do it for women?
To get ahead of my story intellectually, this is the horizontal struc­
ture of this talk, the threads I will pull through it, the themes that
underlie it. I don't expect you to be persuaded by these arguments
now, but I am going to tell you what they are. My formal agenda has
three parts. The first treats pornography by connecting epistemol­
ogy-which I understand to be about theories of knowing-with pol­
itics-which I will take to be about theories of power.3 For instance,
Justice Stewart said of obscenity, "I know it when I see it."4 I see this

The 1984 Francis Biddle Memorial Lecture, Harvard Law School, Cambridge, Massa­
chusetts, Apr. 5, 1984. Some themes from "Not a Moral lssue" are expanded here.

163
Pornography

as a statement connecting epistemology-what he knows through

his way of knowing, in this case, seeing-with the fact that his seeing
determines what obscenity is in terms of what he sees it to be, be­
cause of his position of power. To wonder if he and I know the same
things from what we see, given what's on the newsstand, is not a
personal query about him.
Another example of the same conceptual connection is this. Hav­
ing power means, among other things, that when someone says,
"This is how it is," it is taken as being that way. When this happens
in law, such a person is accorded what is called credibility. When that
person is believed over another speaker, what was said becomes
proof. Speaking socially, the beliefs of the powerful become proof, in
part because the world actually arranges itself to affirm what the
powerful want to see. If you perceive this as a process, you might call
it force, or at least pressure or socialization or what money can buy.
If it is imperc!iptible as a process, you may consider it voluntary or
consensual or free will or human nature, or just the way things are.
Beneath this, though, the world is not entirely the way the powerful
say it is or want to believe it is. If it appears to be, it is because power
constructs the appearance of reality by silencing the voices of the
powerless, by excluding them from access to authoritative discourse.
Powerlessness means that when you say "This is how it is," it is not
taken as being that way. This makes articulating silence, perceiving
the presence of absence, believing those who have been socially
stripped of credibility, critically contextualizing what passes for
simple fact, necessary to the epistemology of a politics of the pow­
erless .
M y second thematic concern i s jurisprudential. I t is directed to­
ward identifying, in order to change, one dimension of liberalism as
it is embodied in law: the definition of justice as neutrality between
abstract categories. The liberal view is that abstract categories-like
speech or equality-define systems. Every time you strengthen free
speech in one place, you strengthen it everywhere. Strengthening
the free speech of the Klan strengthens the free speech of Blacks.5
Getting things for men strengthens equality for women. Getting men
access to women's schools strengthens women's access to education.
What I will be exploring is the way in which substantive systems,
made up of real people with social labels attached; are also systems.
You can reverse racism abstractly, but white supremacy is unfudge­
ably substantive. Sexism can be an equal abstraction, but male su­
premacy says who is where. Substantive systems like white suprem-

164
 Francis Biddle's Sister

acy do substantively different things to people of color than they do

to white people. To say they are also systems is to say that every time
you score one for white supremacy in one place, it is strengthened
every place else.
In this view, the problem with neutrality as the definition of prin­
ciple in constitutional adjudication6 is that it equates substantive
powerlessness with substantive power and calls treating these the
same, "equality." The neutrality approach understands that abstract
systems are systems, but it seems not to understand that substantive
systems are also systems. This criticism frames a problem that is the
same for equal protection law under the sex-blind/color-blind rubric7
as it is for the First Amendment under the absolutist rubric-the sys­
tematic defense of those who own the speech because they can buy
it or have speech to lose because they have the power to articulate in
a way that counts.8 Although absolutism has never been the law of
the First Amendment, it has left its impression upon it. Its contribu­
tions include helping to make the marketplace of ideas, the original
metaphor for how the First Amendment was supposed to work/
rather more literal than figurative.
If this argument is right, it makes sense that Professor Wechsler's
seminal exposition of the neutral principles approach10 would be
couched as an abstract defense of Plessy v. Ferguson11-in which sepa­
rate but equal in the racial context was found equal-and an abstract
attack on Brown v. Board of Education,I2 which recognized the inequal­
ity in racial separation in a racially hierarchical society. Plessy was
neutral toward racism; Brown recognized its substantivity, therefore
its inequality. Similarly, noticing the substantive context within which
many of the big systemic constitutional debates have been carried out
reveals that much of the legal tradition on the evils of substantivity
as such-Lochner and so on13-revolves around cases that substan­
tively concern the treatment of women. Yet nobody talks about these
as cases about women. Women are substantively absent.14 Just as the
struggle of Blacks for an education was a vehicle for Wechsler's ex­
position of the virtues of neutrality, women's lives provide tl:\e occa­
sion for confronting the issues the legal system regards as the real
issues, the abstract issues, to which the treatment of women is as
invisible in law-just as essential and just as marginalized-as wom­
en's substantive framing of social existence is invisible in life.
The Lochner line of cases created concern about the evils of their
substance, which, as women were erased, came to stand for the evils
of substantivity as such. There has been correspondingly little discus-

165
Pornography

sion, with the partial exception of the debate on affirmative action,15

on the drawbacks of abstraction as such. Granted, trying to do any­
thing on a substantive basis is a real problem in a legal system that
immediately turns everything into an abstraction. I do hope to iden­
tify this as something of a syndrome, as a risk of abuse. Considering
it the definition of principle itself ensures that nothing will ever ba­
sically change, at least not by law.
When these two frames converge-epistemology and politics on
the one hand with the critique of neutrality on the other-they form
a third frame: one of political philosophy. Here is how they converge.
Once power constructs social reality, as I will show pornography con­
structs the social reality of gender, the force behind sexism, the sub­
ordination in gender inequality, is made invisible; dissent from it be­
comes inaudible as well as rare. What a woman is, is defined in
pornographic terms; this is what pornography does. If the law then
looks neutrally on the reality of gender so produced, the harm that
has been done will not be perceptible as harm. It becomes just the way
things are. Refusing to look at what has been done substantively in­
stitutionalizes inequality in law and makes it look just like principle.
In the philosophical terms of classical liberalism, an equality-free­
dom dilemma is produced: freedom to make or consume pornogra­
phy weighs against the equality of the sexes. Some people's freedom
hurts other people's equality. There is something to this, but my for­
mulation, as you might guess, comes out a little differently. If one
asks whose freedom pornography represents, a tension emerges that
is not a dilemma among abstractions so much as it is a conflict be­
tween groups. Substantive interests are at stake on both sides of the
abstract issues, and women are allowed to matter in neither. If wom­
en's freedom is as incompatible with pornography's construction of
our freedom as our equality is incompatible with pornography's con­
struction of our equality, we get neither freedom nor equality under
the liberal calculus . Equality for women is incompatible with a defi­
nition of men's freedom that is at our expense. What can freedom for
women mean, so long as we remain unequal? Why should men's
freedom to use us in this way be purchased with our second-class
civil status?

Substantively considered, the situation of women is not really like any­

thing else. Its specificity is not just the result of our numbers-we are
half the human race-and our diversity, which at times has obscured

166
 Francis Biddle's Sister

that we are a group with an interest at all. It is, in part, that our status
as a group relative to men has almost never, if ever, been much
changed from what it is. Women's roles do vary enough that gender,
the social form sex takes, cannot be said to be biologically deter­
mined. Different things are valued in different cultures, but whatever
is valued, women are not that. If bottom is bottom, look across time
and space, and women are who you will find there. Together with
this, you will find, in as varied forms as there are cultures, the belief
that women's social inferiority to men is not that at all but is merely
the sex difference.
Doing something legal about a situation that is not really like any­
thing else is hard enough in a legal system that prides itself meth­
odologically on reasoning by analogy.16 Add to this the specific exclu­
sion or absence of women and women's concerns from the definition
and design of this legal system since its founding, combined with its
determined adherence to precedent, and you have a problem of sys­
temic dimension. The best attempt at grasping women's situation in
order to change it by law has centered on an analogy between sex
and race in the discrimination context. This gets a lot, since inequal­
ities are alike on some levels, but it also misses a lot. It gets the stig­
matization and exploitation and denigration of a group of people on
the basis of a condition of birth. It gets that difference, made an issue
of, is an excuse for dominance, and that if forced separation is al­
lowed to mean equality in a society where the line of separation also
divides top from bottom in a hierarch� the harm of that separation
is thereby made invisible. It also gets that defining neutrality as prin­
ciple, when reality is not neutral, prevents change in the guise of
promoting it. But segregation is not the central practice of the in­
equality of the sexes. Women are as often forcibly integrated with
men, if not on an equal basis. And it did help the struggle against
white supremacy that Blacks had not always been in bondage to
white people.
Most important, I think it never was a central part of the ideology
of racism that the system of chattel slavery of Africans really was
designed for their enjoyment and benefit. The system was defended
as an expression of their true nature and worth. They were told to be
grateful for good treatment and kind masters. Their successful
struggle to organize resistance and avoid complicity while still sur­
viving is instructive to all of us. But although racism has been de­
fended by institutionalizing it in law, and then calling that legal; al­
though it has been cherished not just as a system of exploitation of

167
Pornography

labor but as a way of life; and although it is based on force, changes

in its practices are opposed by implying that they are really only a
matter of choice of personal values. For instance: "You can't legislate
morality."17 And slave owners did say they couldn't be racist-they
loved their slaves. Nonetheless, few people pretended that the entire
system existed because of its basis in Jove and mutual respect and ven­
eration, that white supremacy really treated Blacks in many cases
better than whites, and that the primary intent and effect of their spe­
cial status was and is their protection, pleasure, fulfillment, and lib­
eration. Crucially, many have believed, and some actually still do,
that Black people were not the equals of whites. But at least since
Brown v. Board of Education,18 few have pretended, much less author­
itatively, that the social system, as it was, was equality for them.
There is a belief that this is a society in which women and men are
basically equals. Room for marginal corrections is conceded, flaws are
known to exist, attempts are made to correct what are conceived as
occasional lapses from the basic condition of sex equality. Sex dis­
crimination law has concentrated most of its focus on these occasional
lapses .19 It is difficult to overestimate the extent to which this belief
in equality is an article of faith for most people, including most
women, who wish to live in self-respect in an internal universe, even
(perhaps especially) if not in the world. It is also partly an expression
of natural law thinking: if we are inalienably equal, we can't "really"
be degraded.
This is a world in which it is worth trying. In this world of pre­
sumptive equality, people make money based on their training or
abilities or diligence or qualifications. They are employed and ad­
vanced on the basis of merit. In this world of just deserts, if someone
is abused, it is thought to violate the basic rules of the community. If
it doesn't, victims are seen to have done something they could have
chosen to do differently, by exercise of will or better judgment. Maybe
such people have placed themselves in a situation of vulnerability to
physical abuse. Maybe they have done something provocative. Or
maybe they were just unusually unlucky. In such a world, if such a
person has an experience, there are words for it. When they speak
and say it, they are listened to. If they write about it, they will be
published. If certain experiences are never spoken about, if certain
people or issues are seldom heard from, it is supposed that silence
has been chosen. The law, including much of the Jaw of sex discrim­
ination and the First Amendment, operates largely within the realm
of these beliefs.

168
 Francis Biddle's Sister

Feminism is the discovery that women do not live in this world,

that the person occupying this realm is a man, so much more a man
if he is white and wealthy. This world of potential credibility, author­
ity, security, and just rewards, recognition of one's identity and ca­
pacity, is a world that some people do inhabit as a condition of birth,
with variations among them. It is not a basic condition accorded hu­
manity in this society, but a prerogative of status, a privilege, among
other things, of gender.
I call this a discovery because it has not been an assumption. Fem­
inism is the first theory, the first practice, the first movement, to take
seriously the situation of all women from the point of view of all
women, both on our situation and on social life as a whole. The dis­
covery has therefore been made that the implicit social content of
humanism, as well as the standpoint from which legal method has
been designed and injuries have been defined, has not been women's
standpoint. Defining feminism in a way that connects epistemology
with power as the politics of women's point of view, this discovery
can be summed up by saying that women live in another world: spe­
cifically, a world of not equality, a world of inequality.
Looking at the world from this point of view, a whole shadow
world of previously invisible silent abuse has been discerned. Rape,
battery, sexual harassment, forced prostitution, and the sexual abuse
of children emerge as common and systematic.20 We find that rape
happens to women in all contexts, from the family, including rape of
girls and babies, to students and women in the workplace, on the
streets, at home, in their own bedrooms by men they do not know
and by men they do know, by men they are married to, men they
have had a social conversation with, and, least often, men they have
never seen before.21 Overwhelmingly, rape is something that men do
or attempt to do to women (44 percent of American women according
to a recent study)22 at some point in our lives. Sexual harassment of
women by men is common in workplaces and educational institu­
tions.23 Based on reports in one study of the federal workforce, up to
85 percent of women will experience it, many in physical forms.24
Between a quarter and a third of women are battered in their homes
by men.25 Thirty-eight percent of little girls are sexually molested in­
side or outside the family.26 Until women listened to women, this
world of sexual abuse was not spoken of. It was the unspeakable. What
I am saying is, if you are the tree falling in the epistemological forest,
your demise doesn't make a sound if no one is listening. Women did
not "report" these events, and overwhelmingly do not today, because

169
Pornography

no one is listening, because no one believes us. This silence does not
mean nothing happened, and it does not mean consent. It is the si­
lence of women of which Adrienne Rich has written, "Do not confuse
it with any kind of absence." 27
Believing women who say we are sexually violated has been a rad­
ical departure, both methodologically and legally. The extent and na­
ture of rape, marital rape, and sexual harassment itself, were discov­
ered in this way. Domestic battery as a syndrome, almost a habit, was
discovered through refusing to believe that when a woman is as­
saulted by a man to whom she is connected, that it is not an assault.
The sexual abuse of children was uncovered, Freud notwithstanding,
by believing that children were not making up all this sexual abuse.28
Now what is striking is that when each discovery is made, and some­
how made real in the world, the response has been: it happens
to men too. If women are hurt, men are hurt. If women are raped,
men are raped. If women are sexually harassed, men are sexually
harassed . If women are battered, men are battered. Symmetry must
be reasserted. Neutrality must be reclaimed . Equality must be re­
established.
The only areas where the available evidence supports this, where
anything like what happens to women also happens to men, involve
children-little boys are sexually abused-and prison.29 The liberty
of prisoners is restricted, their freedom restrained, their humanity
systematically diminished, their bodies and emotions confined, de­
fined, and regulated. If paid at all, they are paid starvation wages.
They can be tortured at will, and it is passed off as discipline or as
means to a just end. They become compliant. They can be raped at
will, at any moment, and nothing will be done about it. When they
scream, nobody hears. To be a prisoner means to be defined as a
member of a group for whom the rules of what can be done to you,
of what is seen as abuse of you, are reduced as part of the definition
of your status. To be a woman is that kind of definition and has that
kind of meaning.
Men are damaged by sexism. (By men I mean the status of mascu­
linity that is accorded to males on the basis of their biology but is not
itself biological.) But whatever the damage of sexism to men, the con­
dition of being a man is not defined as subordinate to women by
force . Looking at the facts of the abuses of women all at once, you
see that a woman is socially defined as a person who, whether or not
she is or has been, can be treated in these ways by men at any time,
and little, if anything, will be done about it. This is what it means

170
 Francis Biddle's Sister

when feminists say that maleness is a form of power and femaleness

is a form of powerlessness.
In this context, all of this "men too" stuff means that people don't
really believe that the things I have just said are true, though there
really is little question about their empirical accuracy. The data are
extremely simple, like women's pay figure of fifty-nine cents on the
dollar.30 People don't really seem to believe that either. Yet there is no
question of its empirical validity. This is the workplace story: what
women do is seen as not worth much, or what is not worth much is
seen as something for women to do. Women are seen as not worth
much, is the thing. Now why are these basic realities of the subor­
dination of women to men, for example, that only 7.8 percent of
women have never been sexually assaulted,31 not effectively believed,
not perceived as real in the face of all this evidence? Why don't women
believe our own experiences? In the face of all this evidence, espe­
cially of systematic sexual abuse-subjection to violence with impu­
nity is one extreme expression, although not the only expression, of
a degraded status-the view that basically the sexes are equal in this
society remains unchallenged and unchanged. The day I got this was
the day I understood its real message, its real coherence: This is equal­
ity for us.
I could describe this, but I couldn't explain it until I started study­
ing a lot of pornography. In pornography, there it is, in one place, all
of the abuses that women had to struggle so long even to begin to
articulate, all the unspeakable abuse: the rape, the battery, the sexual
harassment, the prostitution, and the sexual abuse of children. Only
in the pornography it is called something else: sex, sex, sex, sex, and
sex, respectively. Pornography sexualizes rape, battery, sexual ha­
rassment, prostitution, and child sexual abuse; it thereby celebrates,
promotes, authorizes, and legitimizes them. More generally, it eroti­
cizes the dominance and submission that is the dynamic common to
them all. It makes hierarchy sexy and calls that "the truth about
sex"32 or just a mirror of reality. Through this process pornography
constructs what a woman is as what men want from sex. This is what
the pornography means.
Pornography constructs what a woman is in terms of its view of
what men want sexually, such that acts of rape, battery, sexual ha­
rassment, prostitution, and sexual abuse of children become acts of
sexual equality. Pornography's world of equality is a harmonious and
balanced place.33 Men and women are perfectly complementary and
perfectly bipolar. Women's desire to be fucked by men is equal to

171
Pornography

men's desire to fuck women. All the ways men love to take and vio­
late women, women love to be taken and violated. The women who
most love this are most men's equals, the most liberated; the most
participatory child is the most grown-up, the most equal to an adult.
Their consent merely expresses or ratifies these preexisting facts.
The content of pornography is one thing. There, women substan­
tively desire dispossession and cruelty. We desperately want to be
bound, battered, tortured, humiliated, and killed. Or, to be fair to the
soft core, merely taken and used. This is erotic to the male point of
view. Subjection itself, with self-determination ecstatically relin­
quished, is the content of women's sexual desire and desirability.
Women are there to be violated and possessed, men to violate and
possess us, either on screen or by camera or pen on behalf of the
consumer. On a simple descriptive level, the inequality of hierarchy;
of which gender is the primary one, seems necessary for sexual
arousal to work. Other added inequalities identify various porno­
graphic genres or subthemes, although they are always added
through gender: age, disability; homosexuality; animals, objects, race
(including anti-Semitism), and so on. Gender is never irrelevant.
What pornography does goes beyond its content: it eroticizes hier­
archy; it sexualizes inequality. It makes dominance and submission
into sex. Inequality is its central dynamic; the illusion of freedom
coming together with the reality of force is central to its working.
Perhaps because this is a bourgeois culture, the victim must look free,
appear to be freely acting. Choice is how she got there. Willing is
what she is when she is being equal. It seems equally important that
then and there she actually be forced and that forcing be communi­
cated on some level, even if only through still photos of her in pos­
tures of receptivity and access, available for penetration. Pornogra­
phy in this view is a form of forced sex, a practice of sexual politics,
an institution of gender inequality.
From this perspective, pornography is neither harmless fantasy
nor a corrupt and confused misrepresentation of an otherwise natu­
ral and healthy sexual situation. It institutionalizes the sexuality of
male supremacy; fusing the erotization of dominance and submission
with the social construction of male and female. To the extent that
gender is sexual, pornography is part of constituting the meaning of
that sexuality. Men treat women as who they see women as being.
Pornography constructs who that is. Men's power over women
means that the way men see women defines who women can be.
Pornography is that way. Pornography is not imagery in some re-

172
 Francis Biddle's Sister

lation to a reality elsewhere constructed. It is not a distortion, re­

flection, projection, expression, fantasy, representation, or symbol
either. It is a sexual reality.
In Andrea Dworkin's definitive work, Pornography: Men Possessing
Women,34 sexuality itself is a social construct gendered to the ground.
Male dominance here is not an artificial overlay upon an underlying
inalterable substratum of uncorrupted essential sexual being. Dwor­
kin presents a sexual theory of gender inequality of which pornog­
raphy is a constitutive practice. The way pornography produces its
meaning constructs and defines men and women as such. Gender
has no basis in anything other than the social reality its hegemony
constructs. Gender is what gender means. The process that gives sex­
uality its male supremacist meaning is the same process through
which gender inequality becomes socially real.
In this approach, the experience of the (overwhelmingly) male au­
diences who consume pornography is therefore not fantasy or sim­
ulation or catharsis but sexual reality, the level of reality on which sex
itself largely operates. Understanding this dimension of the problem
does not require noticing that pornography models are real women
to whom, in most cases, something real is being done; nor does it
even require inquiring into the systematic infliction of pornography
and its sexuality upon women, although it helps. What matters is the
way in which the pornography itself provides what those who con­
sume it want. Pornography participates in its audience's eroticism
through creating an accessible sexual object, the possession and con­
sumption of which is male sexuality, as socially constructed; to be
consumed and possessed as which, is female sexuality, as socially
constructed; pornography is a process that constructs it that way.
The object world is constructed according to how it looks with re­
spect to its possible uses. Pornography defines women by how we
look according to how we can be sexually used. Pornography codes
how to look at women, so you know what you can do with one when
you see one. Gender is an assignment made visually, both originally
and in everyday life. A sex object is defined on the basis of its looks,
in terms of its usability for sexual pleasure, such that both the look­
ing-the quality of the gaze, including its point of view-and the
definition according to use become eroticized as part of the sex itself.
This is what the feminist concept "sex object" means. In this sense,
sex in life is no less mediated than it is in art. Men have sex with their
image of a woman. It is not that life and art imitate each other; in this
sexuality, they are each other.

173
Pornography

To give a set of rough epistemological translations, to defend por­

nography as consistent with the equality of the sexes is to defend the
subordination of women to men as sexual equality. What in the por­
nographic view is love and romance looks a great deal like hatred
and torture to the feminist. Pleasure and eroticism become violation.
Desire appears as lust for dominance and submission. The vulnera­
bility of women's projected sexual availability; that acting we are al­
lowed (that is, asking to be acted upon), is victimization. Play con­
forms to scripted roles. Fantasy expresses ideology; is not exempt
from it. Admiration of natural physical beauty becomes objectifica­
tion. Harmlessness becomes harm. Pornography is a harm of male
supremacy made difficult to see because of its pervasiveness, po­
tency; and, principally; because of its success in making the world a
pornographic place. Specifically; its harm cannot be discerned, and
will not be addressed, if viewed and approached neutrally; because
it is so much of "what is." In other words, to the extent pornography
succeeds in constructing social reality; it becomes invisible as harm.
If we live in a world that pornography creates through the power of
men in a male-dominated situation, the issue is not what the harm
of pornography is, but how that harm is to become visible.

Obscenity law provides a very different analysis and conception of

the problem of pornography.35 In 1973 the legal definition of obscen­
ity became that which the average person, applying contemporary
community standards, would find that, taken as a whole, appeals to
the prurient interest; that which depicts or describes in a patently
offensive way-you feel like you're a cop reading someone's Miranda
rights-sexual conduct specifically defined by the applicable state
law; and that which, taken as a whole, lacks serious literary; artistic,
political or scientific value.36 Feminism doubts whether the average
person gender-neutral exists; has more questions about the content
and process of defining what community standards are than it does
about deviations from them; wonders why prurience counts but
powerlessness does not and why sensibilities are better protected
from offense than women are from exploitation; defines sexuality;
and thus its violation and expropriation, more broadly than does
state law; and questions why a body of law that has not in practice
been able to tell rape from intercourse should, without further guid­
ance, be entrusted with telling pornography from anything less. Tak­
ing the work "as a whole" ignores that which the victims of pornog-

1 74
 Francis Biddle's Sister

raphy have long known: legitimate settings diminish the perception

of injury done to those whose trivialization and objectification they
contextualize. Besides, and this is a heavy one, if a woman is sub­
jected, why should it matter that the work has other value? Maybe
what redeems the work's value is what enhances its injury to women,
not to mention that existing standards of literature, art, science, and
politics, examined in a feminist light, are remarkably consonant with
pornography's mode, meaning, and message. And finally-first and
foremost, actually-although the subject of these materials is over­
whelmingly women, their contents almost entirely made up of wom­
en's bodies, our invisibility has been such, our equation as a sex with
sex has been such, that the law of obscenity has never even consid­
ered pornography a women's issue.
Obscenity, in this light, is a moral idea, an idea about judgments
of good and bad. Pornography, by contrast, is a political practice, a
practice of power and powerlessness. Obscenity is ideational and ab­
stract; pornography is concrete and substantive. The two concepts
represent two entirely different things. Nudity, excess of candor,
arousal or excitement, prurient appeal, illegality of the acts depicted,
and unnaturalness or perversion are all qualities that bother obscen­
ity law when sex is depicted or portrayed. Sex forced on real women
so that it can be sold at a profit and forced on other real women;
women's bodies trussed and maimed and raped and made into things
to be hurt and obtained and accessed, and this presented as the na­
ture of women in a way that is acted on and acted out, over and over;
the coercion that is visible and the coercion that has become invis­
ible-this and more bothers feminists about pornography. Obscenity
as such probably does little harmY Pornography is integral to atti­
tudes and behaviors of violence and discrimination that define the
the treatment and status of half the population.

At the request of the city of Minneapolis, Andrea Dworkin and I con­

ceived and designed a local human rights ordinance in accordance
with our approach to the pornography issue. We define pornography
as a practice of sex discrimination, a violation of women's civil rights,
the opposite of sexual equality. Its point is to hold those who profit
from and benefit from that injury accountable to those who are in­
jured. It means that women's injury-our damage, our pain, our en­
forced inferiority-should outweigh their pleasure and their profits,
or sex equality is meaningless.

175
Pornography

We define pornography as the graphic sexually explicit subordi­

nation of women through pictures or words that also includes
women dehumanized as sexual objects, things, or commodities; en­
joying pain or humiliation or rape; being tied up, cut up, mutilated,
bruised, or physically hurt; in postures of sexual submission or ser­
vility or display; reduced to body parts, penetrated by objects or
animals, or presented in scenarios of degradation, injury, torture;
shown as filthy or inferior; bleeding, bruised, or hurt in a context that
makes these conditions sexual. 38 Erotica, defined by distinction as
not this, might be sexually explicit materials premised on equality.39
We also provide that the use of men, children, or transsexuals in the
place of women is pornography.40 The definition is substantive in that
it is sex-specific, but it covers everyone in a sex-specific way, so is
gender neutral in overall design.
There is a buried issue within sex discrimination law about what
sex, meaning gender, is. If sex is a difference, social or biological, one
looks to see if a challenged practice occurs along the same lines; if it
does, or if it is done to both sexes, the practice is not discrimination,
not inequality. If, by contrast, sex has been a matter of dominance, the
issue is not the gender difference but the difference gender makes. In
this more substantive, less abstract approach, the concern with in­
equality is whether a practice subordinates on the basis of sex. The first
approach implies that marginal correction is needed; the second re­
quires social change. Equality, in the first view, centers on abstract
symmetry between equivalent categories; the asymmetry that occurs
when categories are not equivalent is not inequality, it is treating un­
likes differently. In the second approach, inequality centers on the
substantive, cumulative disadvantagement of social hierarchy. Equal­
ity for the first is nondifferentiation; for the second, nonsubordina­
tion.41 Although it is consonant with both approaches, our antipor­
nography statute emerges largely from an analysis of the problem
under the second approach.
To define pornography as a practice of sex discrimination combines
a mode of portrayal that has a legal history-the sexually explicit­
with an active term that is central to the inequality of the sexes­
subordination. Among other things, subordination means to be in a
position of inferiority or loss of power, or to be demeaned or deni­
grated.42 To be someone's subordinate is the opposite of being their
equal. The definition does not include all sexually explicit depictions
of the subordination of women. That is not what it says. It says, this
which does that: the sexually explicit that subordinates women. To

176
 Francis Biddle's Sister

these active terms to capture what the pornography does, the defini­
tion adds a list of what it must also contain. This list, from our anal­
ysis, is an exhaustive description of what must be in the pornography
for it to do what it does behaviorally. Each item in the definition is
supported by experimental, testimonial, social, and clinical evidence.
We made a legislative choice to be exhaustive and specific and con­
crete rather than conceptual and general, to minimize problems of
chilling effect, making it hard to guess wrong, thus making self­
censorship less likely, but encouraging (to use a phrase from discrim­
ination law) voluntary compliance, knowing that if something turns
up that is not on the list, the law will not be expansively interpreted.
The list in the definition, by itself, would be a content regulation.43
But together with the first part, the definition is not simply a content
regulation. It is a medium-message combination that resembles many
other such exceptions to First Amendment guarantees.44
To focus what our law is, I will say what it is not. It is not a prior
restraint. It does not go to possession. It does not turn on offensive­
ness. It is not a ban, unless relief for a proven injury is a "ban" on
doing that injury again. Its principal enforcement mechanism is the
civil rights commission, although it contains an option for direct ac­
cess to court as well as de novo judicial review of administrative de­
terminations, to ensure that no case will escape full judicial scrutiny
and full due process. I will also not discuss various threshold issues,
such as the sources of municipal authority, preemption, or absten­
tion, or even issues of overbreadth or vagueness, nor will I defend
the ordinance from views that never have been law, such as First
Amendment absolutism. I will discuss the merits: how pornography
by this definition is a harm, specifically how it is a harm of gender
inequality, and how that harm outweighs any social interest in its
protection by recognized First Amendment standards.45
This law aspires to guarantee women's rights consistent with the
First Amendment by making visible a conflict of rights between the
equality guaranteed to all women and what, in some legal sense, is
now the freedom of the pornographers to make and sell, and their
consumers to have access to, the materials this ordinance defines.
Judicial resolution of this conflict, if the judges do for women what
they have done for others, is likely to entail a balancing of the rights
of women arguing that our lives and opportunities, including our
freedom of speech and action, are constrained by-and in many
cases flatly precluded by, in, and through-pornography, against
those who argue that the pornography is harmless, or harmful only

177
Pornography

in part but not in the whole of the definition; or that it is more im­
portant to preserve the pornography than it is to prevent or remedy
whatever harm it does.
In predicting how a court would balance these interests, it is im­
portant to understand that this ordinance cannot now be said to be
either conclusively legal or illegal under existing law or precedent,46
although I think the weight of authority is on our side. This ordi­
nance enunciates a new form of the previously recognized govern­
mental interest in sex equality. Many laws make sex equality a gov­
ernmental interestY Our law is designed to further the equality of
the sexes, to help make sex equality real. Pornography is a practice
of discrimination on the basis of sex, on one level because of its role
in creating and maintaining sex as a basis for discrimination. It harms
many women one at a time and helps keep all women in an inferior
status by defining our subordination as our sexuality and equating
that with our gender. It is also sex discrimination because its victims,
including men, are selected for victimization on the basis of their gen­
der. But for their sex, they would not be so treated.48
The harm of pornography, broadly speaking, is the harm of the
civil inequality of the sexes made invisible as harm because it has
become accepted as the sex difference. Consider this analogy with
race: if you see Black people as different, there is no harm to segre­
gation; it is merely a recognition of that difference. To neutral prin­
ciples, separate but equal was equal. The injury of racial separation
to Blacks arises "solely because [they] choose to put that construction
upon it."49 Epistemologically translated: how you see it is not the way
it is. Similarly, if you see women as just different, even or especially
if you don't know that you do, subordination will not look like sub­
ordination at all, much less like harm. It will merely look like an ap­
propriate recognition of the sex difference.
Pornography does treat the sexes differently, so the case for sex
differentiation can be made here. But men as a group do not tend to
be (although some individuals may be) treated the way women are
treated in pornography. As a social group, men are not hurt by por­
nography the way women as a social group are. Their social status is
not defined as less by it. So the major argument does not turn on
mistaken differentiation, particularly since the treatment of women
according to pornography's dictates makes it all too often accurate.
The salient quality of a distinction between the top and the bottom
in a hierarchy is not difference, although top is certainly different

178
 Francis Biddle's Sister

from bottom; it is power. So the major argument is: subordinate but

equal is not equal.
Particularly since this is a new legal theory, a new law, and "new"
facts, perhaps the situation of women it newly exposes deserves to
be considered on its own terms. Why do the problems of 53 percent
of the population have to look like somebody else's problems before
they can be recognized as existing? Then, too, they can't be ad­
dressed if they do look like other people's problems, about which
something might have to be done if something is done about these.
This construction of the situation truly deserves inquiry. Limiting the
justification for this law to the situation of the sexes would serve to
limit the precedential value of a favorable ruling.
Its particularity to one side, the approach to the injury is supported
by a whole array of prior decisions that have justified exceptions to
First Amendment guarantees when something that matters is seen to
be directly at stake. What unites many cases in which speech inter­
ests are raised and implicated but not, on balance, protected, is
harm,50 harm that counts. In some existing exceptions, the defini­
tions are much more open-ended than ours. 51 In some the sanctions
are more severe, or potentially more so. For instance, ours is a civil
law; most others, although not all, are criminal.52 Almost no other
exceptions show as many people directly affected. Evidence of harm
in other cases tends to be vastly less concrete and more conjectural,
which is not to say that there is necessarily less of it. 53 None of the
previous cases addresses a problem of this scope or magnitude-for
instance, an eight-billion-dollar-a-year industry.54 Nor do other cases
address an abuse that has such widespread legitimacy. Courts have
seen harm in other cases. The question is, will they see it here, es­
pecially given that the pornographers got there first. I will confine
myself here to arguing from cases on harm to people, on the suppos­
ition that, the pornographers notwithstanding, women are not
flags.55
I will discuss the four injuries we make actionable with as much
evidence as time permits. I want you to hear the voices of the women
and men who spoke at our hearing.

The first victims of pornography are the ones in it. To date, it has
only been with children, and male children at that, that the Supreme
Court has understood that before the pornography became the por­
nographer's speech, it was somebody's life. 56 This is particularly true

179
Pornography

in visual media, where it takes a real person doing each act to make
what you see. This is the double meaning in a statement one ex­
prostitute made at our hearing: "[E]very single thing you see in
pornography is happening to a real woman right now." 57 Linda Mar­
chiano, in her book Ordea/,58 recounts being coerced as "Linda Love­
lace" into performing for Deep Throat, a fabulously profitable film,59
by being abducted, systematically beaten, kept prisoner, watched
every minute, threatened with her life and the lives of her family if
she left, tortured, and kept under constant psychological intimida­
tion and duress. Not all pornography models are, to our knowledge,
coerced so expressly, but the fact that some are not does not mean
that those who are, aren't. It only means that coercion into pornog­
raphy cannot be said to be biologically female. The further fact that
prostitution and modeling are structurally women's best economic
options should give pause to those who would consider women's
presence there a true act of free choice. In the case of other inequal­
ities, it is sometimes understood that people do degrading work out
of a lack of options caused by, say, poverty. The work is not seen as
not degrading "for them" because they do it. With women, it just
proves that this is what we are really for, this is our true nature. I will
leave you wondering, with me, why it is that when a woman spreads
her legs for a camera, she is assumed to be exercising free will. Wom­
en's freedom is rather substantively defined here. And as you think
about the assumption of consent that follows women into pornogra­
phy, look closely sometime for the skinned knees, the bruises, the
welts from the whippings, the scratches, the gashes. Many of them
are not simulated. One relatively soft-core pornography model said,
"I knew the pose was right when it hurt."60 It certainly seems impor­
tant to the audiences that the events in the pornography be real. For
this reason pornography becomes a motive for murder, as in "snuff"
films, in which someone is tortured to death to make a sex film. They
exist.61
Coerced pornography models encounter devastating problems of
lack of credibility because of a cycle of forced acts in which coercion
into pornography is central. For example, children are typically
forced to perform the acts in the pornography that is forced on them;
photographs are taken of these rapes, and the photographs are used
to coerce the children into prostitution or into staying in prostitution.
They are told that if they try to leave, the pictures will be shown to
the authorities, their parents, their teachers (whoever is not coercing
them at the time), and no one will believe them. This gets them into

180
 Francis Biddle's Sister

prostitution and keeps them there.62 Understand, the documentation

of the harm as it is being done is taken as evidence that no harm was
done. In part, the victim's desire for the abuse is attributed to the
victim's nature from the fact of the abuse: she's a natural-born whore;
see, there she is chained to a bed. Too, the victims are often forced
to act as though they are enjoying the abuse. One pornographer said
to a woman he abducted and was photographing while bound:
"Smile or I'll kill you. I can get lots of money for pictures of women
who smile when they're tied up like you."63 When women say they
were forced, they are not believed, in part because, as Linda Mar­
chiano says, "What people remember is the smile on my face."64
Pornography defines what a woman is through conditioning the
male sexual response to that definition, to the unilateral sexuality
pornography is part of and provides. Its power can be illustrated by
considering the credibility problems Linda Marchiano encounters
when she says that the presentation of her in Deep Throat is not true,
in the sense that she does not and did not feel or enjoy what the
character she was forced to portray felt and enjoyed. Most concretely,
before "Linda Lovelace" was seen performing deep throat, no one
had ever seen it being done in that way, largely because it cannot be
done without hypnosis to repress the natural gag response. Yet it was
believed. Men proceeded to demand it of women, causing the distress
of many and the death of some.65 Yet when Linda Marchiano now
tells that it took kidnapping and death threats and hypnosis to put
her there, that is found difficult to believe.66
The point is not only that when women can be coerced with im­
punity the results, when mass-produced, set standards that are dev­
astating and dangerous for all women. The point is also that the as­
sumptions the law of the First Amendment makes about adults-that
adults are autonomous, self-defining, freely acting, equal individu­
als-are exactly those qualities that pornography systematically de­
nies and undermines for women.67 Some of the same reasons chil­
dren are granted some specific legal avenues for redress-relative
lack of power, inability to command respect for their consent and self­
determination, in some cases less physical strength or lowered legit­
imacy in using it, specific credibility problems, and lack of access to
resources for meaningful self-expression-also hold true for the so­
cial position of women compared to men. It is therefore vicious to
suggest, as many have, that women like Linda Marchiano should
remedy their situations through the exercise of more speech. Pornog­
raphy makes their speech impossible, and where possible, worthless.

181
Pornography

Pornography makes women into objects. Objects do not speak.

When they do, they are by then regarded as objects, not as humans,
which is what it means to have no credibility. Besides, it is unclear
how Ms. Marchiano's speech is supposed to redress her injury, ex­
cept by producing this legal remedy, since no amount of saying any­
thing remedies what is being done to her in theaters and on home
videos all over the world, where she is repeatedly raped for public
entertainment and private profit.
What would justice look like for these women?68 Linda Marchiano
said, "Virtually every time someone watches that film, they are
watching me being raped." 69 Nancy Holmes, who was forced to per­
form for pornography by her father and who, like many such victims,
has been searching for the film for years, says,
You wonder who might have seen the film. In some back-alley adult book
shop someone has dropped a quarter and maybe it might be you they are
looking at. You would not ordinarily mix company with this person under
these circumstances . . . [b]ut in some back alley, in someone's dark mind
you are worth 25 cents. Someone has just paid 25 cents to see you being
brutally raped and beaten. And some total stranger gets to gain sadistic and
voyeuristic pleasure from your pain. It costs you your sanity and years of
suffering and psychological turmoil. It cost him only a quarter, and he gained
tremendous pleasure. It robbed you of your childhood; it gave him satisfac­
tion.70

Now think about his freedom and her powerlessness, and think
about what it means to call that "just the construction she chooses to
put upon it."
As part of the relief for people who can prove this was done to
them, our law provides an injunction to remove these materials from
public view. The best authority we have for this is the Ferber case,
which permits criminal prohibitions on child pornography.71 That
case recognized that child pornography need not be obscene to be
child abuse. The Court found such pornography harmful in part be­
cause it constituted "a permanent record of children's participation
and the harm to the child is exacerbated by circulation." 72 This was a
film, by the way, largely of two boys masturbating.73 The sensitivities
of obscenity law, the Court noted, were inapt because "a work which,
taken on the whole, contains value may nevertheless embody the
hardest core of child pornography."74 Whether a work appeals to the
prurient interest is not the same as whether a child is physically or
psychologically harmed to make it. 75
Both of these reasons apply to coerced women. Women are not

182
 Francis Biddle's Sister

children, but coerced women are effectively deprived of power over

the expressive products of their coercion. Coerced pornography
should meet the test that "the evil to be restricted . . . overwhelm­
ingly outweighs the expressive interests, if any, at stake."76 Unless
one wishes to retain the incentive structure that has introduced a
profit motive into rape, pornography made this way should be able
to be eliminated. 77

We also make it actionable to force pornography on a person in em­

ployment, education, in a home, or in any public place.78 Persons
who are forced cannot, under this part of the law, reach the pornog­
raphy, but they can reach the perpetrator or institution that does the
forcing. In our hearings we heard the ways in which pornography is
forced on people. It is used to show children how to perform sex acts,
to duplicate exactly these so-called natural childish acts/9 on men's
jobs, it is used to intimidate women into leaving;80 in women's jobs,
to have or set up a sexual encounter;81 it is used to show prostitutes
or wives what a "natural woman" is supposed to do.82 In therapy, it
is seen as aiding in transference, meaning submitting to the thera­
pist;83 in medical school, it desensitizes doctors so that when patients
say they are masturbating with a chicken or wondering if intercourse
with a cow will give them exotic diseases, the doctor does not react.84
In language classes, it becomes material to be worked over meticu­
lously for translation.85 It is used to terrorize children in homes, so
they will keep still about its use in the rape of their mothers and
sisters: look at this; if you tell, here's what I'll do to you. 86 Sometimes
it ends there; some children "only" have the pornography forced on
them. Some of them later develop psychological difficulties that are
identical to those of children who had the acts forced on them. 87 Do
a thought-act distinction on that one.
Women who live in neighborhoods where pornography is concen­
trated, much of it through state and local legal action called "zoning,"
report similar effects on a broad scale.88 Because prostitutes know
what others seem to have a lot staked on denying, which is that por­
nography makes men want the real thing, they sometimes locate
around it. This means that any woman there may be considered a
prostitute, which is dangerous enough if you are one, but becomes
particularly dangerous if you are not. The threat of sexual harassment
is constant. The presence of the pornography conditions women's
physical environment. Women have no place to go to avoid it, no
place to avert their eyes to.89 Certainly not home, where the presence

183
Pornography

of pornography is so sanctified90 we don't even challenge it in this

law. One woman who as a child was a victim of incest and now lives
in a community saturated with pornography, relates a Skokie-type
injury. 9 1 She relives the incest every time she walks by the pornog­
raphy she cannot avoid. "[L]ooking at the women in those pictures,
I saw myself at 14, at 15, at 16. I felt the weight of that man's body,
the pain, the disgust . . . I don't need studies and statistics to tell me
that there is a relationship between pornography and real violence
against women. My body remembers."92 Now recall that more than
a third of all women are victims of child sexual abuse; about the same
proportion are victims of domestic battery; just under half are victims
of rape or attempted rape. I am not saying that every such presence
of the pornography is legally force, but what does it mean for tar­
geted survivors to live in a society in which the rehearsal and cele­
bration and ritual reenactment of our victimization is enjoyed, is an
entertainment industry, is arguably a constitutional right?

Specific pornography does directly cause some assaults.93 Some rapes

are performed by men with paperback books in their pockets.94 One
young woman testified in our hearings about walking through a for­
est at thirteen and coming across a group of armed hunters reading
pornography. As they looked up and saw her, one said, "There is a
live one."95 They gang-raped her at gunpoint for several hours. One
Native American woman told us about being gang-raped in a re­
enactment of a video game on her. "[T]hat's what they screamed in
my face as they threw me to the ground. 'This is more fun than Cus­
ter's Last Stand.' They held me down and as one was running the tip
of his knife across my face and throat he said, 'Do you want to play
Custer's Last Stand? It's great, you lose but you don't care, do you?
You like a little pain, don't you, squaw? . . . Maybe we will tie you to
a tree and start a fire around you."96
Received wisdom seems to be that because there is so little differ­
ence between convicted rapists and the rest of the male population
in levels and patterns of exposure, response to, and consumption of
pornography, the role of pornography in rape is insignificant.97 A
more parsimonious explanation of this data is that knowing patterns
of exposure to, response to, or consumption of pornography will not
tell you who will be reported, apprehended, and convicted for rape.
But the commonalities such data reveal between convicted rapists
and other men are certainly consistent with the fact that only a tiny
fraction of rapes ever come to the attention of authorities.98 It does

184
 Francis Biddle's Sister

not make sense to assume that pornography has no role in rape

simply because little about its use or effects distinguishes convicted
rapists from other men, when we know that a lot of those other men
do rape women; they just never get caught. In other words, the sig­
nificance of pornography in acts of forced sex is one thing if sex of­
fenders are considered deviants and another if they are considered
relatively nonexceptional except for the fact of their apprehension
and incarceration. Professionals who work with that tiny percentage
of men who get reported and convicted for such offenses, a group
made special only by our ability to assume that they once had sex by
force in a way that someone (in addition to their victim) eventually
regarded as serious, made the following observations about the pop­
ulation they work with. "Pornography is the permission and direc­
tion and rehearsal for sexual violence."99 "[P]ornography is often
used by sex offenders as a stimulus to their sexually acting out." It is
the "tools of sexual assault," 100 "a way in which they practice" their
crimes, "like a loaded gun,"101 "like drinking salt water," 102 "the
chemical of sexual addiction." 103 They hypothesize that pornography
leads some men to abusiveness out of fear of loss of the control that
has come to mean masculinity when real women won't accept sex
on the one-sided terms that pornography gives and from which
they have learned what sex is. Because pornography is reinforc­
ing, and leads to sexual release, it "leads men to want the experi­
ence which they have in photographic fantasy to happen in 'real'
life." 104 "They live vicariously through the pictures. Eventually, that
is not satisfying enough and they end up acting out sexually." 105
"[S]exual fantasy represents the hope for reality." 106 These profes­
sionals are referring to what others are fond of terming "just an
idea."
Although police have known it for years, reported cases are in­
creasingly noting the causal role of pornography in some sexual
abuse. 107 In a recent Minnesota case, a fourteen-year-old girl on a
bicycle was stopped with a knife and forced into a car. Her hands
were tied with a belt, she was pushed to the floor and covered with
a blanket. The knife was then used to cut off her clothes, and fingers
and a knife were inserted into her vagina. Then the man had her
dress, drove her to a gravel pit, ordered her to stick a safety pin into
the nipple of her left breast, and forced her to ask him to hit her.
After hitting her, he forced her to commit fellatio and to submit to
anal penetration, and made her use a cigarette to burn herself on her
breast and near her pubic area. Then he defecated and urinated on

185
Pornography

her face, forced her to ingest some of the excrement and urine and
made her urinate into a cup and drink it. He took a string from her
blouse and choked her to the point of unconsciousness, leaving burn
marks on her neck, and after cutting her with his knife in a couple of
places, drove her back to where he had gotten her and let her go.
The books that were found with this man were: Violent Stories of Kinky
Humiliation, Violent Stories of Dominance and Submission-you think
feminists made up these words? Bizarre Sex Crimes, Shamed Victims,
-

and Water Sports Fetish, Enemas and Golden Showers . The Minnesota
Supreme Court said "It appears that in committing these various acts,
the defendant was giving life to some stories he had read in various
pornographic books." 108

To reach the magnitude of this problem on the scale it exists, our law
makes trafficking in pornography-production, sale, exhibition, or
distribution-actionable.109 Under the obscenity rubric, much legal
and psychological scholarship has centered on a search for the elu­
sive link between harm and pornography defined as obscenity. 110 Al­
though they were not very clear on what obscenity was, it was its
harm they truly could not find. They looked high and low-in the
mind of the male consumer,111 in society or in its "moral fabric," 112 in
correlations between variations in levels of antisocial acts and liber­
alization of obscenity laws. 113 The only harm they have found has
been harm to "the social interest in order and morality." 114 Until re­
cently, no one looked very persistently for harm to women, particu­
larly harm to women through men. The rather obvious fact that the
sexes relate has been overlooked in the inquiry into the male con­
sumer and his mind. The pornography doesn't just drop out of the
sky, go into his head, and stop there. Specifically, men rape, batter,
prostitute, molest, and sexually harass women. Under conditions of
inequality, they also hire, fire, promote, and grade women, decide
how much or whether we are worth paying and for what, define and
approve and disapprove of women in ways that count, that deter­
mine our lives.
If women are not just born to be sexually used, the fact that we are
seen and treated as though that is what we are born for becomes
something in need of explanation. If we see that men relate to women
in a pattern of who they see women as being, and that forms a pat­
tern of inequality, it becomes important to ask where that view came
from or, minimally, how it is perpetuated or escalated. Asking this

186
 Francis Biddle's Sister

requires asking different questions about pornography than the ones

obscenity law made salient.
Now I'm going to talk about causality in its narrowest sense.115 Re­
cent experimental research on pornography116 shows that the mate­
rials covered by our definition cause measurable harm to women
through increasing men's attitudes and behaviors of discrimination
in both violent and nonviolent forms. Exposure to some of the por­
nography in our definition increases the immediately subsequent
willingness of normal men to aggress against women under labora­
tory conditions.117 It makes normal men more closely resemble con­
victed rapists attitudinally, although as a group they don't look all
that different from them to start with.118 Exposure to pornography
also significantly increases attitudinal measures known to correlate
with rape and self-reports of aggressive acts, measures such as hos­
tility toward women, propensity to rape, condoning rape, and pre­
dicting that one would rape or force sex on a woman if one knew one
would not get caught.119 On this latter measure, by the way, about a
third of all men predict that they would rape, and half would force
sex on a woman. uo
As to that pornography covered by our definition in which normal
research subjects seldom perceive violence, long-term exposure still
makes them see women as more worthless, trivial, nonhuman, and
objectlike,121 that is, the way those who are discriminated against are
seen by those who discriminate against them. Crucially, all pornog­
raphy by our definition acts dynamically over time to diminish the
consumer's ability to distinguish sex from violence. The materials
work behaviorally to diminish the capacity of men (but not women)
to perceive that an account of a rape is an account of a rape.122 The
so-called sex-only materials, those in which subjects perceive no
force, also increase perceptions that a rape victim is worthless and
decrease the perception that she was harmed.123 The overall direction
of current research suggests that the more expressly violent materials
accomplish with less exposure what the less overtly violent-that is,
the so-called sex-only materials-accomplish over the longer term.
Women are rendered fit for use and targeted for abuse. The only
thing that the research cannot document is which individual women
will be next on the list. (This cannot be documented experimentally
because of ethics constraints on the researchers-constraints that do
not operate in life. ) Although the targeting is systematic on the basis
of sex, for individuals it is random. They are selected on a roulette

187
Pornography

basis. Pornography can no longer be said to be just a mirror. It does

not just reflect the world or some people's perceptions. It moves them.
It increases attitudes that are lived out, circumscribing the status of
half the population.
What the experimental data predict will happen actually does hap­
pen in women's real lives. You know, it's fairly frustrating that women
have known for some time that these things do happen. As Ed Don­
nerstein, an experimental researcher in this area, often puts it, "We
just quantify the obvious." 124 It is women, primarily, to whom the
research results have been the obvious, because we live them. But
not until a laboratory study predicts that these things will happen do
people begin to believe you when you say they did happen to you.
There is no-not any-inconsistency between the patterns the labo­
ratory studies predict and the data on what actually happens to real
women. Show me an abuse of women in society, I'll show it to you
made sex in the pornography. If you want to know who is being hurt
in this society, go see what is being done and to whom in pornogra­
phy and then go look for them other places in the world. You will
find them being hurt in just that way. We did in our hearings.
In our hearings women spoke, to my knowledge for the first time
in history in public, about the damage pornography does to them.
We learned that pornography is used to break women, to train
women to sexual submission, to season women, to terrorize women,
and to silence their dissent. It is this that has previously been termed
"having no effect." The way men inflict on women the sex they ex­
perience through the pornography gives women no choice about
seeing the pornography or doing the sex. Asked if anyone ever tried
to inflict unwanted sex acts on them that they knew came from por­
nography, 1 0 percent of women in a recent random study said yes. 125
Among married women, 24 percent said yes.126 That is a lot of
women. A lot more don't know. Some of those who do testified in
Minneapolis. One wife said of her ex-husband, "He would read from
the pornography like a textbook, like a journal. In fact when he asked
me to be bound, when he finally convinced me to do it, he read in
the magazine how to tie the knots." 127 Another woman said of her
boyfriend, "[H]e went to this party, saw pornography, got an erec­
tion, got me . . . to inflict his erection on . . . There is a direct causal
relationship there." 128 One woman, who said her husband had rape
and bondage magazines all over the house, discovered two suitcases
full of Barbie dolls with rope tied on their arms and legs and with
tape across their mouths .129 Now think about the silence of women.

188
 Francis Biddle's Sister

She said, "He used to tie me up and he tried those things on me." 130
A therapist in private practice reported:

Presently or recently I have worked with clients who have been sodomized
by broom handles, forced to have sex with over 20 dogs in the back seat of
their car, tied up and then electrocuted on their genitals. These are children,
[all] in the ages of 14 to 18, all of whom [have been directly affected by por­
nography,] [e]ither where the perpetrator has read the manuals and manu­
scripts at night and used these as recipe books by day or had the pornogra­
phy present at the time of the sexual violence.131

One woman, testifying that all the women in a group of ex­

prostitutes were brought into prostitution as children through por­
nography, characterized their collective experience: "[I]n my expe­
rience there was not one situation where a client was not using
pornography while he was using me or that he had not just watched
pornography or that it was verbally referred to and directed me
to pornography." 132 "Men," she continued, "witness the abuse of
women in pornography constantly and if they can't engage in that
behavior with their wives, girl friends or children, they force a whore
to do it."133
Men also testified about how pornography hurts them. One young
gay man who had seen Playboy and Penthouse as a child said of such
heterosexual pornography: "It was one of the places I learned about
sex and it showed me that sex was violence. What I saw there was a
specific relationship between men and women . . . [T]he woman was
to be used, objectified, humiliated and hurt; the man was in a supe­
rior position, a position to be violent. In pornography I learned that
what it meant to be sexual with a man or to be loved by a man was
to accept his violence." 134 For this reason, when he was battered by
his first lover, which he described as "one of the most profoundly
destructive experiences of my life," 135 he accepted it.
Pornography also hurts men's capacity to relate to women. One
young man spoke about this in a way that connects pornography­
not the prohibition on pornography-with fascism. He spoke of his
struggle to repudiate the thrill of dominance, of his difficulty finding
connection with a woman to whom he is close. He said: "My point
is that if women in a society filled by pornography must be wary for
their physical selves, a man, even a man of good intentions, must be
wary for his mind . . . I do not want to be a mechanical, goose­
stepping follower of the Playboy bunny, because that is what I think
it is . . . [T]hese are the experiments a master race perpetuates on

189
Pornography

those slated for extinction." 136 The woman he lives with is Jewish.
There was a very brutal rape near their house . She was afraid; she
tried to joke. It didn't work. "She was still afraid. And just as a well­
meaning German was afraid in 1933, I am also very much afraid." 137
Pornography stimulates and reinforces, it does not cathect or mir­
ror, the connection between one-sided freely available sexual access
to women and masculine sexual excitement and sexual satisfaction.
The catharsis hypothesis is fantasy. The fantasy theory is fantasy. Re­
ality is: pornography conditions male orgasm to female subordina­
tion. It tells men what sex means, what a real woman is, and codes
them together in a way that is behaviorally reinforcing. This is a real
five-dollar sentence, but I'm going to say it anyway: pornography is
a set of hermeneutical equivalences that work on the epistemological
level . Substantively; pornography defines the meaning of what a
woman is seen to be by connecting access to her sexuality with
masculinity through orgasm. What pornography means is what it
does.
So far, opposition to our ordinance centers on the trafficking pro­
vision. This means not only that it is difficult to comprehend a group
injury in a liberal culture-that what it means to be a woman is de­
fined by this and that it is an injury for all women, even if not for all
women equally. It is not only that the pornography has got to be
accessible, which is the bottom line of virtually every objection to this
law. It is also that power, as I said, is when you say something, it is
taken for reality. 138 If you talk about rape, it will be agreed that rape
is awful. But rape is a conclusion . If a victim describes the facts of a
rape, maybe she was asking for it or enjoyed it or at least consented
to it, or the man might have thought she did, or maybe she had had
sex before. It is now agreed that there is something wrong with sex­
ual harassment. But describe what happened to you, and it may be
trivial or personal or paranoid, or maybe you should have worn a bra
that day. People are against discrimination. But describe the situation
of a real woman, and they are not so sure she wasn't just unqualified.
In law, all these disjunctions between women's perspective on our
injuries and the standards we have to meet go under dignified legal
rubrics like burden of proof, credibility; defenses, elements of the
crime, and so on. These standards all contain a definition of what a
woman is in terms of what sex is and the low value placed on us
through it. They reduce injuries done to us to authentic expressions
of who we are. Our silence is written all over them. So is the pornog­
raphy.

190
 Francis Biddle's Sister

We have as yet encountered comparatively little objection to the

coercion, force, or assault provisions of our ordinance. I think that's
partly because the people who make and approve laws may not yet
see what they do as that. They know they use the pornography as we
have described it in this law, and our law defines that, the reality of
pornography, as a harm to women. If they suspect that they might
on occasion engage in or benefit from coercion or force or assault,
they may think that the victims won't be able to prove it-and they're
right. Women who charge men with sexual abuse are not believed.
The pornographic view of them is: they want it; they all want it.139
When women bring charges of sexual assault, motives such as veni­
ality or sexual repression must be invented, because we cannot really
have been hurt. Under the trafficking provision, women's lack of
credibility cannot be relied upon to negate the harm. There's no wom­
an's story to destroy, 140 no credibility-based decision on what hap­
pened. The hearings establish the harm. The definition sets the stan­
dard. The grounds of reality definition are authoritatively shifted.
Pornography is bigotry, period. We are now-in the world pornogra­
phy has decisively defined-having to meet the burden of proving,
once and for all, for all of the rape and torture and battery, all of the
sexual harassment, all of the child sexual abuse, all of the forced pros­
titution, all of it that the pornography is part of and that is part of the
pornography, that the harm does happen and that when it happens it
looks like this. Which may be why all this evidence never seems to
be enough.

It is worth considering what evidence has been enough when other

harms involving other purported speech interests have been allowed
to be legislated against. By comparison to our trafficking provision,
analytically similar restrictions have been allowed under the First
Amendment, with a legislative basis far less massive, detailed, con­
crete, and conclusive. Our statutory language is more ordinary, ob­
jective, and precise and covers a harm far narrower than the legisla­
tive record substantiates. Under Miller, obscenity was allowed to be
made criminal in the name of the "danger of offending the sensibili­
ties of unwilling recipients, or exposure to juveniles."141 Under our
law, we have direct evidence of harm, not just a conjectural danger,
that unwilling women in considerable numbers are not simply of­
fended in their sensibilities, but are violated in their persons and re­
stricted in their options. Obscenity law also suggests that the appli­
cable standard for legal adequacy in measuring such connections

191
Pornography

may not be statistical certainty. The Supreme Court has said that it
is not their job to resolve empirical uncertainties that underlie state
obscenity legislation. 142 Rather, it is for them to determine whether
a legislature could reasonably have determined that a connection
might exist between the prohibited material and harm of a kind in
which the state has legitimate interest. Equality should be such an
area. The Supreme Court recently recognized that prevention of sex­
ual exploitation and abuse of children is, in their words, "a govern­
mental objective of surpassing importance." 143 This might also be the
case for sexual exploitation and abuse of women, although I think a
civil remedy is initially more appropriate to the goal of empowering
adult women than a criminal prohibition would be. 144
Other rubrics provide further support for the argument that this
law is narrowly tailored to further a legitimate governmental interest
consistent with the goals underlying the First Amendment. Excep­
tions to the First Amendment-you may have gathered from this­
exist. The reason they exist is that the harm done by some speech
outweighs its expressive value, if any. In our law a legislature recog­
nizes that pornography; as defined and made actionable, undermines
sex equality. One can say-and I have-that pornography is a causal
factor in violations of women; one can also say that women will be
violated so long as pornography exists; but one can also say simply
that pornography violates women. Perhaps this is what the woman
had in mind who testified at our hearings that for her the question is
not just whether pornography causes violent acts to be perpetrated
against some women. "Porn is already a violent act against women.
It is our mothers, our daughters, our sisters, and our wives that are
for sale for pocket change at the newsstands in this country." 145 Chap­
linsky v. New Hampshire recognized the ability to restrict as "fighting
words" speech which, "by [its] very utterance inflicts injury."146 Per­
haps the only reason that pornography has not been "fighting
words" -in the sense of words that by their utterance tend to incite
immediate breach of the peace-is that women have seldom fought
back, yet.147
Some concerns that are close to those of this ordinance underlie
group libel laws, although the differences are equally important. In
group libel law, as Justice Frankfurter's opinion in Beauharnais illus­
trates, it has been understood that an individual's treatment and al­
ternatives in life may depend as much on the reputation of the group
to which that person belongs as on their own merit.148 Not even a
partial analogy can be made to group libel doctrine without examin-

192
 Francis Biddle's Sister

ing the point made by Justice Brandeis149 and recently underlined by

Larry Tribe:1 50 would more speech, rather than less, remedy the
harm? In the end, the answer may be yes, but not under the abstract
system of free speech, which only enhances the power of the por­
nographers while doing nothing substantively to guarantee the free
speech of women, for which we need civil equality. The situation in
which women presently find ourselves with respect to the pornog­
raphy is one in which more pornography is inconsistent with rectifying
or even counterbalancing its damage through speech, because so
long as the pornography exists in the way it does there will not be
more speech by women. Pornography strips and devastates women of
credibility, from our accounts of sexual assault to our everyday reality
of sexual subordination. We are stripped of authority and reduced
and devalidated and silenced. Silenced here means that the purposes
of the First Amendment, premised upon conditions presumed and
promoted by protecting free speech, do not pertain to women be­
cause they are not our conditions. Consider them: individual self­
fulfillment151-how does pornography promote our individual self­
fulfillment? How does sexual inequality even permit it? Even if she
can form words, who listens to a woman with a penis in her mouth?
Facilitating consensus-to the extent pornography does so, it does
so one-sidedly by silencing protest over the injustice of sexual sub­
ordination. Participation in civic life-central to Professor Meikle­
john's theory152-how does pornography enhance women's partici­
pation in civic life? Anyone who cannot walk down the street or even
lie down in her own bed without keeping her eyes cast down and
her body clenched against assault is unlikely to have much to say
about the issues of the day, still less will she become Tolstoy. Facili­
tating change153-this law facilitates the change that existing First
Amendment theory had been used to throttle. Any system of free­
dom of expression that does not address a problem where the free
speech of men silences the free speech of women, a real conflict be­
tween speech interests as well as between people, is not serious
about securing freedom of expression in this country.154
For those of you who still think pornography is only an idea, con­
sider the possibility that obscenity law got one thing right. Pornog­
raphy is more actlike than thoughtlike. The fact that pornography, in
a feminist view, furthers the idea of the sexual inferiority of women,
which is a political idea, doesn't make the pornography itself into a
political idea. One can express the idea a practice embodies. That
does not make that practice into an idea. Segregation expresses the

193
Pornography

idea of the inferiority of one group to another on the basis of race.

That does not make segregation an idea. A sign that says "Whites
Only" is only words. Is it therefore protected by the First Amend­
ment? Is it not an act, a practice, of segregation because what it
means is inseparable from what it does? 155 Law is only words.
The issue here is whether the fact that words and pictures are the
central link in the cycle of abuse will immunize that entire cycle,
about which we cannot do anything without doing something about
the pornography. As Justice Stewart said in Ginsburg, "When expres­
sion occurs in a setting where the capacity to make a choice is absent,
government regulation of that expression may coexist with and even
implement First Amendment guarantees." 156 I would even go so far as
to say that the pattern of evidence we have closely approaches Justice
Douglas' requirement that "freedom of expression can be suppressed
if, and to the extent that, it is so closely brigaded with illegal action
as to be an inseparable part of it." 157 Those of you who have been
trying to separate the acts from the speech-that's an act, that's an
act, there's a law against that act, regulate that act, don't touch the
speech-notice here that the illegality of the acts involved doesn't
mean that the speech that is "brigaded with" it cannot be regulated .
This is when it can be. 1ss
I take one of two penultimate points from Andrea Dworkin, who
has often said that pornography is not speech for women, it is the
silence of women.159 Remember the mouth taped, the woman
gagged, "Smile, I can get a lot of money for that." The smile is not
her expression, it is her silence. It is not her expression not because
it didn't happen, but because it did happen. The screams of the
women in pornography are silence, like the screams of Kitty Gen­
ovese, whose plight was misinterpreted by some onlookers as a lov­
ers' quarrel . The flat expressionless voice of the woman in the New
Bedford gang rape, testifying, is silence. She was raped as men
cheered and watched, as they do in and with the pornography. When
women resist and men say, "Like this, you stupid bitch, here is how
to do it" and shove their faces into the pornography,160 this "truth of
sex"161 is the silence of women. When they say, "If you love me, you'll
try," 162 the enjoyment we fake, the enjoyment we learn is silence.
Women who submit because there is more dignity in it than in losing
the fight over and over163 live in silence. Having to sleep with your
publisher or director to get access to what men call speech is silence.
Being humiliated on the basis of your appearance, whether by ap-

194
 Francis Biddle's Sister

proval or disapproval, because you have to look a certain way for a

certain j ob, whether you get the job or not, is silence. The absence of
a woman's voice, everywhere that it cannot be heard, is silence. And
anyone who thinks that what women say in pornography is women's
speech-the "Fuck me, do it to me, harder," all of that-has never
heard the sound of a woman's voice.164
The most basic assumption underlying First Amendment adjudi­
cation is that, socially, speech is free. The First Amendment says Con­
gress shall not abridge the freedom of speech.165 Free speech, get it,
exists. Those who wrote the First Amendment had speech-they
wrote the Constitution. Their problem was to keep it free from the
only power that realistically threatened it: the federal government.
They designed the First Amendment to prevent government from
constraining that which, if unconstrained by government, was free,
meaning accessible to them. At the same time, we can't tell much about
the intent of the framers with regard to the question of women's
speech, because I don't think we crossed their minds. It is consistent
with this analysis that their posture toward freedom of speech tends
to presuppose that whole segments of the population are not system­
atically silenced sociall� prior to government action. If everyone's
power were equal to theirs, if this were a nonhierarchical socie� that
might make sense. But the place of pornography in the inequality of
the sexes makes the assumption of equal power untrue.
This is a hard question. It involves risks. Classicall� opposition to
censorship has involved keeping government off the backs of people.
Our law is about getting some people off the backs of other people.
The risks that it will be misused have to be measured against the risks
of the status quo. Women will never have that digni� securi� com­
pensation that is the promise of equality so long as the pornography
exists as it does now. The situation of women suggests that the urgent
issue of our freedom of speech is not primarily the avoidance of state
intervention as such, but getting affirmative access to speech for
those to whom it has been denied.

While I was thinking about all of this, I had an imagination. I was

haunted by an entirely imaginary person: Francis Biddle had a sister.
Do not look for her story in the diplomatic or legal sections of the
library. She wrote no autobiograph� much less two.166 No legal foot­
notes embellish her life story. No one endowed a lecture series in

195
Pornography

recognition of her exemplary life of accomplishment. When she con­

fronted people directly, it was not said, as Dean Fisher gracefully said
of her brother, that she was "anti-tact";167 they simply said she was
tactless. People do not recall her elegance or grace on ceremonial oc­
casions. Her compassion, her recognition that torture is real even
when planned and systematic and carried out against targets defined
as appropriate at the time, did not lead, as her brother's did, to sitting
in judgment at Nuremburg. Her passion for justice did not express
itself in the interstices of procedure. She never acted for her govern­
ment for well or ill, regretting it or recalling it in pride in later years.
Fact is, we don't know a thing Francis Biddle's sister said, much less
in her own words. Maybe she spent her life changing typewriter rib­
bons or diapers or bedpans or beds. If she was lucky, she was well
treated, at least most of the time while she was being used. If she
was not, meaning that no man ever chose her for more than one night
at a time or approved of her for whatever reasons are within their
power to bestow or withhold, maybe she ended up walking the
streets, talking out loud to no one in particular, until someone locked
her up. Maybe, if she could manage it, she retreated to the home, in
Andrea Dworkin's words, "that open grave where so many women
lie waiting to die."168 Maybe she hit bottom of women's options.
Maybe she did well, carrying around the most whole self any woman
can have in a society in which the degradation of her body is enjoyed.
Some days she tried. Some days she gave up. In large part because
of the society in which she lived, when she died it all came to about
the same. Nothing much. Which, especially if you applied the stan­
dards her brother lived up to, is about what she was seen as good
for.
You may be thinking that there isn't much we can do about this. I
think there is something, as Virginia Woolf once wrote about a similar
sister she invented for Shakespeare, that is in our power to give
her. 169 Those of us who are as much her descendants as Francis Bid­
dle's would apply his passion, his developed skills, his talents, if only
some of his commitments, to her life. We would have this law I have
been urging tonight. We would have this recognition and institu­
tional support for our equality. If this proposal were to become law
and if it were to be used, if it were to be given the life in women's
hands for which it is designed, there could come a day when she
would speak in her own voice and you would hear her. And I think
only then would we understand how unimaginable what she would
say is for us now. She would write, she would lecture, she would

196
 Francis Biddle's Sister

carry on in public, she would make policy. From that day forward,
neutrality might make some sense. Sexual equality would not be an
empty standard, a taunting aspiration, or a vicious illusion. And si­
lence would be a choice.

197
fifteen
On Collaboration
(1985)

I
am here because I really wanted to talk with you about some­
thing.
Over the history of this conference, legal initiatives against
rape and battery have been discussed-for instance, the spousal ex­
clusion and the corroboration requirement and the. question of dis­
closure of the victim's sexual history. It was not thought necessary to
have someone-a woman, a feminist-represent the rapist or the
batterer, although major issues of racism, due process, the horrors of
incarceration, police discretion, and the intrusion of the state into the
privacy of the bedroom were involved.
Legal initiatives have been taken here to secure equal pay for work
of comparable worth, and it was not thought necessary to make sure
there was someone-a woman, a feminist-to defend the existing
economic distribution of value under the capitalist system because
some women have been able to get something out of it, although (to
credit the commentators) the entire structure of the American econ­
omy is at stake. Legal initiatives against sexual harassment have been
discussed at this conference, and those arguing that the sex-for­
survival dynamic was not the model of women's liberation did not
have to be opposed by defenders of men's right to sexual access, call­
ing it "pro-sex," even though serious issues of privacy and even
speech are involved. Nor did women lawyers who identify as femi­
nists worry about how women were ever going to get over, if sleeping
our way to the top became legally actionable as sex discrimination.
Nor were they concerned that we would lose the source of our power.
Pornography is an eight-billion-dollar-a-year industry of rape and
battery and sexual harassment, an industry that both performs these
abuses for the production of pornography and targets women for
them societywide. Rape is involved when women are coerced into
pornography with "Smile, or I'll kill you." Sexual harassment is in-

This speech was part of a debate at the National Conference on Women and the Law
in New York, Mar. 24, 1985. The struggle against pornography has freed many to ex­
press themselves in ways that were previously silenced. It freed me to say this.

198
 On Collaboration

volved when pornography is forced on women with "Here, you stu­

pid bitch, this is what I want you to do." Assault and battery are
involved when a woman is gang-raped to the tune of "This is more
fun than Custer's Last Stand." This is also an industry that sets wom­
en's value in terms of our sexual accessibility and use. But it took
months of argument for me to get even this much access to you, and
it was granted only on the condition that someone-a woman, a fem­
inist-be here to speak for the pornographers, although that will not
be what she will say she is doing.
I want to speak about the civil rights law Andrea Dworkin and I
wrote, making pornography actionable as sex discrimination. I have
two goals. It is my view that you are being largely lied to; I want you
to hear the truth straight, just one time. I also want to consider what
it means that women lawyers who identify as feminists oppose this
initiative for sex equality.
I have never done anything like this in public before. I also realize
that I have been wanting to say it for a very long time.
Women in pornography are bound, battered, tortured, humiliated,
and killed . Or, to be fair to the soft core, merely taken and used. This
is being done to real women now. It is being done for a reason: it
gives sexual pleasure to its consumers and therefore profits to its pro­
viders. But to the women and children who are the victims of its
making or use, it means being bound, battered, tortured, humiliated,
and killed-or merely taken and used, until they are used up or can
get out. It is done for a reason: because someone with more power
than they have gets pleasure from seeing it, or doing it, or seeing it
as a form of doing it.
In the hundreds of magazines and pictures and films and so-called
books now available in this country, new ones every month, women's
legs are splayed, bodies presented in postures of sexual submission,
display, and access. We are pussy, beaver, bitch, chick, cunt-named
after parts of our bodies or after animals interchangeably. We are cut
up into parts of our bodies or mated with animals interchangeably.
We are told this is a natural woman's sexuality, but it is elaborately
contrived. The photographs may not be retouched, but the poses are,
the bodies are. Children are presented as adult women; adult women
are presented as children. Pregnant women are accessible, displayed.
Lesbian is a pervasive theme. Lesbian sex is shown as men imagine
women touch each other.
Pornography is a major medium for the sexualization of racial ha­
tred. Every racial stereotype is used: Black women presented as vio-

199
Pornography

lent bitches, struggling against their bonds, bruised and bleeding.

The pornography of Asian women is almost entirely one of torture.
The women are presented so passive they cannot be said to be alive,
so bound they are not recognizably human, hanging from light fix­
tures and clothes pegs and trees. There are amputees, their stumps
and prostheses presented as sexual fetishes. Retarded girls are grat­
ifyingly compliant. In some pornography called "snuff" films women
or children are tortured to death to make a sex film. They exist.
Why do women lawyers who identify as feminists ignore, gloss
over, shrug this off? Why do some refuse to discuss the issue of por­
nography when the pornography is in the room, making it as invis­
ible and nonexistent as its victims have been? How can they ignore
even, say, the racism?
You may think snuff is one thing, Playboy another. Our law says
something very simple: a woman is not a thing to be used, any more
than to be abused, and her sexuality isn't either. Why do women
lawyers who identify as feminists buy and defend the pornogra­
phers' view of what a woman is for, what a woman's sexuality is?
Why, when they look in the mirror, do they see the image of them­
selves the pornographers put there?
Because the medium of pornography is words and pictures, it has
been considered speech, even by women lawyers, feminists. Because
of the pleasure pornography gives, they have also considered it ex­
empt from scrutiny, repressive to question. This misses what they
know best: because pornography is sexual, it is not like the literatures
of other inequalities. It is a specific and compelling behavioral stim­
ulus, conditioner, and reinforcer. The way it works is unique: it
makes orgasm a response to bigotry. It is a major way that dominance
and submission-a daily dynamic of social hierarchy, particularly of
gender inequality-are enjoyed and practiced and reinforced and ex­
perienced . And fused with male and female. Pornography makes
sexism sexy. We live in a society in which intrusion on women is the
definition of sex, and the pornographers practice and promote it.
Why are there women lawyers, feminists, who defend this, telling us
everything is just fine, and the only problem is that "we" don't have
enough of it?
Based on the observation and analysis that everything is not just
fine, Andrea Dworkin and I have considered pornography to be a
violation of civil rights-the civil rights of women and children pri­
marily, but of everyone who is hurt by it on the basis of their sex. In
our view, pornography is a major social force for institutionalizing a

200
 On Collaboration

subhuman, victimized, and second-class status for women in this

country. This is inconsistent with any serious vision or legal mandate
of equality and with the reasons speech is protected. Why do women
lawyers who identify as feminists not see the insult in a law of the
First Amendment that is outweighed by so many other considera­
tions but has looked at pornography for decades, looking for the
harm in it, and has never seen anything except sex that men don't
want to say they want to see?
Our law defines pornography as the sexually explicit subordina­
tion of women through pictures or words that also includes women
presented dehumanized as sexual objects who enjoy pain, humilia­
tion, or rape; women bound, mutilated, dismembered, or tortured;
women in postures of servility or submission or display; women
being penetrated by objects or animals. Men, children, and transsex­
uals, all of whom are sometimes violated like women through and in
pornography, can sue for similar treatment. The term "sexually ex­
plicit" is an existing term with a legal meaning. It has never before,
to my knowledge or the knowledge of LEXIS,I been considered un­
clear; it is often used to clarify the meaning of other terms. It refers
to something objective in the world, unlike obscenity law's "prurient
interest," yet it captures the active sexual dynamic of the materials.
The term "subordination" refers to materials that, in one way or an­
other, are active in placing women in an unequal position. Presum­
ably, people know that if you are someone's subordinate, you are not
their equal. Why do women lawyers seem unable to comprehend the
simple statutory requirement that all these elements must be there?
Why do they distort the law ludicrously? Can't they get it right and
still oppose it? Why do they, feminists, insist that they have no idea
what subordination means, what being put down is about or looks
like? Why do they say that at most equality in this area should mean
that sexual dominance and submission be made available on a gen­
der-neutral basis?
Our civil rights law allows victims of four activities, and four activ­
ities only-coercion, force, assault, and trafficking-to sue civilly
those who hurt them through pornography. Coercion, force, assault,
and trafficking are not ideas; they are not fantasies; they are not, in
themselves, speech. Why, when women's agony and pain becomes
what pornographers want to say, when our bodies are their media of
expression, are women lawyers, feminists, among those who tell us
it is only an idea, information, symbolic, a fantasy, just representa­
tion? Aren't these women real to them either?

201
Pornography

Trafficking in female sexual slavery does not become speech be­

cause it is a business, any more than any form of discrimination be­
comes legalized when it is bought and sold. Nor does it become pro­
tected simply because it is only words. A sign that says "Whites
Only" is only words, but it is still an integral act in a system of seg­
regation, which is a system of force . Should it become more protected
if it is done on an eight-billion-dollar-a-year scale? Why do women
lawyers, feminists, want to require that we reach the acts, not the
"speech," when these acts are done to make the "speech" or because
of the "speech"? Why can there be a law for every other abuse, but
when harmed women want to move against pornographers, women
lawyers, calling it feminist, say this is something there should be no
law on?
Our hearings in Minneapolis produced overwhelming evidence of
the damage done by pornography. · Researchers and clinicians docu­
mented what women know from life: that pornography increases at­
titudes and behaviors of aggression and other discrimination, prin­
cipally by men against women. The relation is causal. It is better than
the smoking/cancer correlation and at least as good as the data on
drinking and driving. Social studies and other expert and personal
testimony documented that the laboratory predictions of increased
aggression toward women do occur in real life. There are no contra­
dictions in this evidence. You know, it is fairly frustrating that it takes
studies by men of men in laboratories to predict that viewing por­
nography makes men be sexually more violent and makes them be­
lieve we are sexual things, before women are believed when we say
that this does happen, and did happen, to us. It's even more frus­
trating to have women lawyers, feminists, say or act as though it
doesn't happen-or, if it does, that it is not as important as the plea­
sure to be gotten from it.
In Brown v. Board of Education, it took one study to show that the
harm of segregation was that it affected the hearts and minds of Black
children, gave them a sense of their inferiority, and affected their feel­
ing of status in the community in a way that was unlikely ever to be
undone.2 How do you suppose it affects the hearts and minds of
women, what does it tell us about our status in the community, that
when a woman is hung on a meat hook, a study has to be done to
see if there is harm, and then that harm remains constitutionally pro­
tected as entertainment and inflicting it is a civil liberty that the
ACLU and a woman judge3 and some women lawyers, identifying as
feminists, defend?

202
 On Collaboration

Women in our hearings testified to the use of pornography to break

their self-esteem, to train them to sexual submission, to season them
to forced sex, to intimidate them out of job opportunities, to black­
mail them into prostitution and keep them there, to terrorize and
humiliate them into sexual compliance, and to silence their dissent.
We heard testimony that it takes coercion to make pornography. We
heard how pornography is forced on women and children in ways
that give them no choice about viewing the pornography or perform­
ing the sex. We heard how pornography stimulates and condones
rape, battery, sexual harassment, sexual abuse of children, and forced
prostitution-all presented in the pornography as sex, sex, sex, sex,
and more sex, respectively. Almost none of this had been reported.
The most astounding event of all: they were believed. Why don't
women lawyers, feminists, believe them? Or, if they do, why don't
they act as though they give a goddamn? Why do they tell us it is
doing something about pornography that is so risky and endangers
our freedom, and talk about this status quo as if it has no risks and is
that freedom?
Under current law, the First Amendment, which guarantees speech
against abridgment by government, recognizes exceptions. It is also
at times outweighed by other interests. The most common reason is
harm: the harm done by the materials outweighs their expressive
value, if any. Harm to someone who matters. Why are there women
lawyers, feminists, trying to make sure that women don't matter
enough?
Our law is not criminal. It places enforcement in the hands of the
victim, not the state. It is not protective unless suing organized crime
is a form of protection. It does not provide for a ban unless relief for
a proven injury is a ban. Its trafficking provision is not a "prior re­
straint"-the one thing Judge Barker in Indianapolis, a woman law­
yer, not a feminist-got right. The harm is not triggered by any kind
of offensiveness. Why do even feminist lawyers repeatedly make this
law into what it is not in order to attack it?
Speech interests have been outweighed to some degree when ma­
terials are false, obscene, indecent, racist, coercive, threatening, in­
trusive, inconvenient, commercial, or inaesthetic. Why can't they be
civilly actionable if they are coerced? If they are sex discriminatory?
What or who are women lawyers who oppose this possibility pro­
tecting-and why are they calling their opposition feminism?
The most attacked provision of the ordinance is the trafficking
cause of action, which reaches production, sale, exhibition, and dis-

203
Pornography

tribution. We know that pornography targets women, meaning that

so long as the pornography is actively purveyed, saturating our com­
munities, as it does now, women and children will be used and
abused to make it, as they are now, and it will be used to abuse them,
as it is now. When women lawyers, feminists, tell us to enforce exist­
ing law, the question is: why do we have to wait for each act of vic­
timization to occur, confining the work of our lives to cleaning up
after the pornographers one body at a time, never noticing that the
bodies have a gender, never noticing that the victimization is cen­
trally actualized through words and pictures, never noticing that we
encounter the pornography in the laws, in the courts every time we
try to prove we are hurt? The pornography sets the real rules of our
lives. If we can't reach the traffic, this source of our condition is ex­
empt, off limits, a base of operations outside direct attack through
some laws of war we never agreed to. Why do women lawyers, fem­
inists, oppose any avenue of change that might mean we don't have
to spend our lives in this mop-up operation?
Pornography is historically defended in the name of freedom of
speech. I am here to speak for those, particularly women and chil­
dren, upon whose silence the law, including the law of the First
Amendment, has been built. Their social inequality, which is not just
fine, has never been taken into account in its jurisprudence . The First
Amendment was written by those who already had the speech; they
also had slaves, many of them, and owned women. They made sure
to keep their speech safe from what threatened it: the federal govern­
ment. You have to already have speech before the First Amendment,
preventing government from taking it away from you, does you any
good. Now the pornographers, who have the so-called speech, with
women lawyers, feminists, fronting for them, take as a principled
position that what the pornographers do is indistinguishable from
what anyone else does, even in the face of our exact description of
what they do, which is utterly unlike what anyone else does. Our
definition of pornography is, in fact, the pornographers' definition:
pornography is created by formula, it does not vary. No pornogra­
pher has any trouble knowing what to make . No adult bookstore or
theater has any trouble knowing what to stock. No consumer has any
trouble knowing what to buy. We only described what they all al­
ready know and do. Yet, knowing this, they and their supporters,
including feminist lawyers, who have the speech, have taken the po­
sition that the pornographers are the rebels, the disenfranchised, and
the hated, rather than the bearers and defenders of a ruling ideology

204
 On Collaboration

of misogyny and racism and sexualized bigotry-hated to the tune

of eight billion dollars a year, some of which they give to the ACLU
and some women lawyers who identify as feminists and this confer­
ence.
Claiming to represent women, these people have in effect decided
that there will continue to exist an entire class of women who will be
treated in these ways so that they can have what they call freedom
of speech. Freedom meaning their free access to women. Speech
meaning women's bodies saying what they want them to say.
Why are women lawyers, feminists, siding with the pornogra­
phers? To be a lawyer orients you to power, probably sexually as well
as in every other way. The law has a historical hostility to new ideas,
hurt women, and social change. But more than that, we were let into
this profession on the implicit condition that we would enforce the
real rules: women kept out and down, sexual access to women en­
forced. These remain the rules whether you are in and up, and
whether you practice it or have it practiced on you. It keeps the value
of the most exceptional women high to keep other women out and
down and on their backs with their legs spread. I may be missing
something, but I don't see a lot of women lawyers, feminist or oth­
erwise, selling their asses on the street or looking for a pornographer
with a camera in order to fulfill their sexual agency and I don't think
it is because they are sexually repressed . What law school does for
you is this: it tells you that to become a lawyer means to forget your
feelings, forget your community, most of all, if you are a woman,
forget your experience. Become a maze-bright rat. Women lawyers as
a group have not been much of an exception to this, except that they
go dead in the eyes like ghetto children, unlike the men, who come
out of law school glowing in the dark. Women who defend the por­
nographers are defending a source of their relatively high position
among women under male supremacy, keeping all women, including
them, an inferior class on the basis of sex, enforced by sexual force.
I really want you to stop your lies and misrepresentations of our
position. I want you to do something about your thundering igno­
rance about the way women are treated. I want you to remember
your own lives. I also really want you on our side. But, failing that, I
want you to stop claiming that your liberalism, with its elitism, and
your Freudianism, with its sexualized misogyny, has anything in
common with feminism.

205
sixteen

The Sexual Politics of

the First Amendment
(1986)
[The Dred Scott case] was a law to be cited, a lesson to be learned, judicial
vigor to be emulated, political imprudence to be regretted, but most of all, as
time passed, it was an embarrassment-the Court's highly visible skeleton
in a transparent closet.

Don E. Ferrenbacher, The Dred Scott Case: Its Significance in American Law and Politics

Frankfurter is said to have remarked that Dred Scott was never mentioned
by the Supreme Court any more than ropes and scaffolds were mentioned by
a family that had lost one of its number to the hangman.

Bruce Catton, in John A. Garraty, ed., Quarrels That Have Shaped the Constitution

T
he Constitution of the United States, contrary to any impres­
sion you may have received, is a piece of paper with words
written on it. Because it is old, it is considered a document.
When it is interpreted by particular people under particular condi­
tions, it becomes a text. Because it is backed up by the power of the
state, it is a law.
Feminism, by contrast, springs from the impulse to self-respect in
every woman. From this have come some fairly elegant things: a
metaphysics of mind, a theory of knowledge, an approach to ethics,
and a concept of social action. Aspiring to the point of view of all
women on social life as a whole, feminism has expressed itself as a
political movement for civil equality.
Looking at the Constitution through the lens of feminism, initially
one sees exclusion of women from the Constitution. This is simply
to say that we had no voice in the constituting document of this state.
From that one can suppose that those who did constitute it may not
have had the realities of our situation in mind.

This speech was delivered at the Seventeenth Annual Conference on Women and the
Law, panel on Feminist Ethical Approaches to the First Amendment, organized by
Lorelei Pettigrew, Chicago, Illinois, Mar. 23, 1986.

206
 Sexual Politics of the First Amendment

Next one notices that the Constitution as interpreted is structured

around what can generically be called the public, or state action. This
constituting document pervasively assumes that those guarantees of
freedoms that must be secured to citizens begin where law begins,
with the public order. This posture is exalted as "negative liberty"1
and is a cornerstone of the liberal state. You notice this from the fem­
inist standpoint because women are oppressed socially, prior to la\Yt
without express state acts, often in intimate contexts. For women this
structure means that those domains in which women are distinctively
subordinated are assumed by the Constitution to be the domain of
freedom.
Finally, combining these first two observations, one sees that
women are not given affirmative access to those rights we need most.
Equality, for example. Equality, in the words of Andrea Dworkin, was
tacked on to the Constitution with spit and a prayer. And, let me also
say, late.
If we apply these observations to the First Amendment, our exclu­
sion means that the First Amendment was conceived by white men
from the point of view of their social position. Some of them owned
slaves; most of them owned women.2 They wrote it to guarantee their
freedom to keep something they felt at risk of losing.3 Namely-and
this gets to my next point-speech which they did not want lost
through state action. They wrote the First Amendment so their
speech would not be threatened by this powerful instrument they
were creating, the federal government. You recall that it reads, "Con­
gress shall make no law abridging . . . the freedom of speech." They
were creating that body. They were worried that it would abridge
something they did have. You can tell that they had speech, because
what they said was written down: it became a document, it has been
interpreted, it is the law of the state.4
By contrast with those who wrote the First Amendment so they
could keep what they had, those who didn't have it didn't get it.
Those whose speech was silenced prior to law, prior to any operation
of the state's prohibition of it, were not secured freedom of speech.
Their speech was not regarded as something that had to be-and this
gets to my next point-affirmatively guaranteed. Looking at the his­
tory of the First Amendment from this perspective, reprehensible ex­
amples of state attempts to suppress speech exist. But they constitute
a history of comparative privilege in contrast with the history of si­
lence of those whose speech has never been able to exist for the state
even to contemplate abridging it.

207
Pornography

A few affirmative guarantees of access to speech do exist. The Red

Lion decision is one, although it may be slated for extinction .5 Be­
cause certain avenues of speech are inherently restricted-for in­
stance, there are only so many broadcast frequencies-according to
the Red Lion doctrine of fairness in access to broadcast media, some
people's access has to be restricted in the interest of providing access
to all. In other words, the speech of those who could buy up all the
speech there is, is restricted. Conceptually, this doctrine works ex­
actly like affirmative action. The speech of those who might be the
only ones there, is not there, so that others' can be.
With a few exceptions like that6 we find no guarantees of access to
speech. Take, for example, literacy. Even after it became clear that the
Constitution applied to the states, nobody argued that the segrega­
tion of schools that created inferior conditions of access to literacy for
Blacks violated their First Amendment rights . Or the slave codes that
made it a crime to teach a slave to read and write or to advocate their
freedom.7 Some of those folks who struggled for civil rights for Black
people must have thought of this, but I never heard their lawyers
argue it. If access to the means of speech is effectively socially pre­
cluded on the basis of race or class or gender, freedom from state
burdens on speech does not meaningfully guarantee the freedom to
speak.
First Amendment absolutism, the view that speech must be abso­
lutely protected, is not the law of the First Amendment. It is the con­
science, the superego of the First Amendment, the implicit standard
from which all deviations must be justified . It is also an advocacy
position typically presented in debate as if it were legal fact. Consider
for example that First Amendment bog, the distinction between
speech and conduct. Most conduct is expressive as well as active;
words are as often tantamount to acts as they are vehicles for re­
moved cerebration. Case law knows this.8 But the first question, the
great divide, the beginning and the end, is still the absolutist ques­
tion, "Is it speech or isn't it?"
First Amendment absolutism was forged in the crucible of obscen­
ity litigation. Probably its most inspired expositions, its most pas­
sionate defenses, are to be found in Justice Douglas's dissents in ob­
scenity cases.9 This is no coincidence. Believe him when he says that
pornography is at the core of the First Amendment. Absolutism has
developed through obscenity litigation, I think, because pornogra­
phy's protection fits perfectly with the power relations embedded in
First Amendment structure and jurisprudence from the start. Por-

208
 Sexual Politics of the First Amendment

nography is exactly that speech of men that silences the speech of

women. I take it seriously when Justice Douglas speaking on pornog­
raphy and others preaching absolutism say that pornography has to
be protected speech or else free expression will not mean what it has
always meant in this country.
I must also say that the First Amendment has become a sexual fet­
ish through years of absolutist writing in the melodrama mode in
Playboy in particular. You know those superheated articles where
freedom of speech is extolled and its imminent repression is invoked.
Behaviorall}j Playboy's consumers are reading about the First Amend­
ment, masturbating to the women, reading about the First Amend­
ment, masturbating to the women, reading about the First Amend­
ment, masturbating to the women. It makes subliminal seduction
look subtle. What is conveyed is not only that using women is as
legitimate as thinking about the Constitution, but also that if you
don't support these views about the Constitution, you won't be able
to use these women.
This general approach affects even religious groups. I love to go
speaking against pornography when the sponsors dig up some reli­
gious types, thinking they will make me look bad because they will
agree with me. Then the ministers come on and sa}j "This is the first
time we've ever agreed with the ACLU about anything . . . wh]j
what she's advocating would violate the First Amendment." This isn't
their view universall}j I guess, but it has been my experience repeat­
edl]j and I have personally never had a minister support me on the
air. One of them finally explained it. The First Amendment, he said,
also guarantees the freedom of religion. So this is not only what we
already know: regardless of one's politics and one's moral views, one
is into using women largely. It is also that, consistent with this, First
Amendment absolutism resonates historically in the context of the
long-term collaboration in misogyny between church and state. Don't
let them tell you they're "separate" in that.
In pursuit of absolute freedom of speech, the ACLU has been a
major institution in defending, and now I describe their behavior, the
Nazis, the Klan, and the pornographers. I am waiting for them to
add the antiabortionists, including the expressive conduct of their
violence . Think about one of their favorite metaphors, a capitalist
metaphor, the marketplace of ideas. Think about whether the speech
of the Nazis has historically enhanced the speech of the Jews. Has
the speech of the Klan expanded the speech of Blacks? Has the so­
called speech of the pornographers enlarged the speech of women?

209
Pornography

In this context, apply to what they call the marketplace of ideas the
question we were asked to consider in the keynote speech by Winona
LaDuke: Is there a relationship between our poverty in speech and
their wealth?
As many of you may know, Andrea Dworkin and I, with a lot of
others, have been working to establish a law that recognizes pornog­
raphy as a violation of the civil rights of women in particular. It rec­
ognizes that pornography is a form of sex discrimination. Recently,
in a fairly unprecedented display of contempt, the U.S. Supreme
Court found that the Indianapolis version of our law violates the First
Amendment.10 On a direct appeal, the Supreme Court invalidated a
local ordinance by summary affirmance-no arguments, no briefs on
the merits, no victims, no opinion, not so much as a single line of
citation to controlling precedent. One is entitled to think that they
would have put one there if they had had one.
The Court of Appeals opinion they affirmed11 expressly concedes
that pornography violates women in all the ways Indianapolis found
it did. The opinion never questioned that pornography is sex discrim­
ination. Interesting enough, the Seventh Circuit, in an opinion by
Judge Frank Easterbrook, conceded the issue of objective causation.
The only problem was, the harm didn't matter as much as the mate­
rials mattered. They are valuable. So the law that prohibited the harm
the materials caused was held to be content-based and impermissible
discrimination on the basis of viewpoint.
This is a law that gives victims a civil action when they are coerced
into pornography, when pornography is forced on them, when they
are assaulted because of specific pornography, and when they are
subordinated through the trafficking in pornography. Some of us
thought that sex discrimination and sexual abuse were against public
policy. We defined pornography as the sexually explicit subordina­
tion of women through pictures or words that also includes presen­
tations of women being sexually abused. There is a list of the specific
acts of sexual abuse. The law covers men, too. We were so careful
that practices whose abusiveness some people publicly question-for
example, submission, servility, and display-are not covered by the
trafficking provision . So we're talking rape, torture, pain, humilia­
tion: we're talking violence against women turned into sex.
Now we are told that pornography, which, granted, does the harm
we say it does, this pornography as we define it is protected speech.
It has speech value. You can tell it has value as speech because it is
so effective in doing the harm that it does.12 (The passion of this ren-

210
 Sexual Politics of the First Amendment

dition is mine, but the opinion really does say this .) The more harm,
the more protection. This is now apparently the law of the First
Amendment, at least where harm to women is the rationale. Judge
LaDoris Cordell spoke earlier about the different legal standards for
high-value and low-value speech, a doctrine that feminists who op­
pose pornography have always been averse to. But at least it is now
clear that whatever the value of pornography is-and it is universally
conceded to be low-the value of women is lower.
It is a matter of real interest to me exactly what the viewpoint ele­
ment in our law is, according to Easterbrook's opinion. My best guess
is that our law takes the point of view that women do not enjoy and
deserve rape, and he saw that as just one point of view among many.
Where do you suppose he got that idea? Another possible rendering
is that our law takes the position that women should not be subor­
dinated to men on the basis of sex, that women are or should be
equal, and he regards relief to that end as the enforcement of a pro­
hibited viewpoint.
Just what is and is not valuable, is and is not a viewpoint, is and is
not against public policy was made even clearer the day after the
summary affirmance. In the Renton case the Supreme Court revealed
the conditions under which pornography can be restricted: it can be
zoned beyond the city limits.13 It can be regulated this way on the
basis of its "secondary effects" -which are, guess what, property val­
ues. But it cannot be regulated on the basis of its primary effects on
the bodies of the women who had to be ground up to make it.
Do you think it makes any difference to the woman who is coerced
into pornography or who has just hit the end of this society's chances
for women that the product of her exploitation is sold on the other
side of the tracks? Does it matter to the molested child or the rape
victim that the offender who used the pornography to get himself up
or to plan what he would do or to decide what "type" to do it to had
to drive across town to get it? It does matter to the women who live
or work in the neighborhoods into which the pornography is zoned.
They pay in increased street harassment, in an atmosphere of terror
and contempt for what other neighborhoods gain in keeping their
property values up.
Reading the two decisions together, you see the Court doing what
it has always done with pornography: making it available in private
while decrying it in public. Pretending to be tough on pornography's
effects, the Renton case still gives it a place to exist. Although obscenity
is supposed to have such little value that it is not considered speech

211
Pornography

at all, Renton exposes the real bottom line of the First Amendment:
the pornography stays. Anyone who doesn't think absolutism has
made any progress, check that.
Why is it that obscenity law can exist and our trafficking provision
cannot? Why can the law against child pornography exist and not our
law against coercion? Why aren't obscenity14 and child pornography15
laws viewpoint laws? Obscenity, as Justice Brennan pointed out in his
dissent inRenton, expresses a viewpoint: sexual mores should be
more relaxed, and if they were, sex would look like pornography. 16
Child pornography also presents a viewpoint: sex between adults
and children is liberating, fulfilling, fun, and natural for the child. If
one is concerned about the government taking a point of view
through law, the laws against these things express the state's oppo­
sition to these viewpoints, to the extent of making them crimes to
express. Why is a time-place-manner distinction all right in Renton,
and not our forcing provision, which is kind of time-and-place-like
and does not provide for actions against the pornographers at all?
Why is it all right to make across-the-board, content-based distinc­
tions like obscenity and child pornography, but not our trafficking
provision, not our coercion provision?
When do you see a viewpoint as a viewpoint? When you don't
agree with it. When is a viewpoint not a viewpoint? When it's yours. 17
What is and is not a viewpoint, much less a prohibited one, is a mat­
ter of individual values and social consensus. The reason Judge Eas­
terbrook saw a viewpoint in our law was because he disagrees with
it. (I don't mean to personify it, because it isn't at all personal; I mean,
it is him, personally, but it isn't him only or only him, as a person.)
There is real social disagreement as to whether women are or should
be subordinated to men. Especially in sex.
His approach obscured the fact that our law is not content-based at
all; it is harm-based. A harm is an act, an activity. It is not just a
mental event. Coercion is not an image. Force is not a representation.
Assault is not a symbol. Trafficking is not simply advocacy. Subordi­
nation is an activity, not just a point of view. The problem is, pornog­
raphy is both theory and practice, both a metaphor for and a means
of the subordination of women. The Seventh Circuit allowed the fact
that pornography has a theory to obscure the fact that it is a practice,
the fact that it is a metaphor to obscure the fact that it is also a means.
I don't want you to misunderstand what I am about to say. Our law
comes nowhere near anybody's speech rights, 18 and the literatures of
other inequalities do not relate to those inequalities in the same way

212
 Sexual Politics of the First Amendment

pornography relates to sexism. But I risk your misunderstanding on

both of these points in order to say that there have been serious
movements for liberation in this world. This is by contrast with liberal
movements. In serious movements for human freedom, speech is se­
rious, both the attempt to get some for those who do not have any
and the recognition that the so-called speech of the other side is a
form of the practice of the other side. In union struggles, yellow-dog
presses are attacked. 19 Abolitionists attacked slave presses.20 The
monarchist press was not tolerated by the revolutionaries who
founded this country. 21 When the White Circle League published a
racist pamphlet, it was found to violate a criminal law against libeling
groups.22 After World War II the Nazi press was restricted in Ger­
many by law under the aegis of the Allies.23 Nicaragua considers it
"immoral" and contrary to the progress of education and the cultural
development of the people to publish, distribute, circulate, exhibit,
transmit, or sell materials that, among other things, "stimulate vi­
ciousness," "lower human dignity," or to "use women as sexual or
commercial objects."24
The analogy Norma Ramos mentioned between the fight against
pornography to sex equality and the fight against segregation to race
equality makes the analogy between the Indianapolis case and Brown
v. Board of Education25 evocative to me also. But I think we may be at
an even prior point. The Supreme Court just told us that it is a con­
stitutional right to traffic in our flesh, so long as it is done through
pictures and words, and a legislature may not give us access to court
to contest it. The Indianapolis c'ase is the Dred Scott26 of the women's
movement. The Supreme Court told Dred Scott, to the Constitution,
you are property. It told women, to the Constitution, you are speech.
The struggle against pornography is an abolitionist struggle to estab­
lish that just as buying and selling human beings never was anyone's
property right, buying and selling women and children is no one's
civil liberty.

213
Afterword

A
platform and a period of time and listeners who choose to
be there create a threshold of mortality . If you never say
anything else to them (you might not) and if you die right
afterward (you could), what would have been worth this time? The
chance to be heard always seems momentous . Each discourse in this
collection was delivered, at some point, to a memorably responsive
group-not one that arrived agreeing with me but one whose mental
aliveness elicited these thoughts in this particular form. Audiences of
every kind shaped these speeches. The audience is the material con­
dition under which it suddenly becomes possible to want to say
something, to know what one wants to say, to see a way to say the
one thing that must be said . Specific audiences were, still are, the
occasions, the life situations of these moments in consciousness. My
part of the text is the interaction writ small; the audience is the inter­
action writ large, made world. To adapt what Lily Tomlin and Jane
Wagner said of the relation between Andy Warhol's rendering of a
Campbell's soup can and the soup can itself, the speech was soup,
the audience was art.1
During a speech the audience is context. People listening in large
numbers are highly communicative; it is unusual when they are not.
They control how far and fast to go, how much of a raw nerve to
expose without becoming intrusive, how deep to look into an open
grave without widening a chasm that yawns there for the next three
hours, when to risk the flight of an unfinished thought, when to use
examples or analogies and which ones, and how idiomatic or spe­
cialized or imaged a vocabulary. Sometimes you feel someone think
something specific and decide to address it. Speaking, for me, is al­
ways to a listener even more than writing is to a reader; it is at every
moment "for the other." Spoken words carry the specific quality of
their birth relation forever, even if they are later written down as one
person's delivery. As a form, speaking remains dialogue.
After a presentation, the dialogue often becomes express, and the
education of the speaker lasts as long as the janitor's shift. Then one
can hear the pulse of hope, feel the texture of fear, see an evasion
stumble, touch a perception as it moves, witness the gawky elegance

215
Afterword

of an expressed experience finding its first legs. Notice, but remark

as rarely as death is remarked to frame life, the silences that frame
the speech.
From these exchanges I have learned that feminism-in the form
of a tacit belief that women are human beings in truth but not in
social reality-has gone deep into women and some younger men,
becoming taken for granted, becoming part of the background. The
feminism of women who do not identify as feminists, feminism de­
livered in the form of a self-respecting identity and a lived commit­
ment to change for women, came to matter more than the identifi­
cation. Women everywhere articulated their situations and analyzed
their pain with confrontive realism, indominability, and solidarity­
with, in short, more feminism than anything yet called feminism has
exhausted or expressed. Those who have lived through or worked
hands-on with violence against women displayed a more nuanced
and systemic conceptual understanding than most published writing
on the subject. Sometimes it seemed as though the more invisible the
woman, the deeper the truth she possessed. More than any other
group, former prostitutes were possessed by truth, haunted by truth,
vivid with knowledge against a canon of credibility that has all but
obliterated them. The professed feminism of many others, by con­
trast, began to seem tepid and removed, like heads talking, brittle
and second hand, like upward mobility.
In the established abstract refuges of academia I often encountered
a tendency to tum women into a field or an idea or a subspecialty, an
artifact of one theoretical approach or another. Little deep challenge
to existing approaches is happening in these places, less understand­
ing of the lives of most women (or even, say, the sexual violence in
academic women's own lives) and virtually no commitment to
change. What is happening instead is frantic image management,
with a lived accountability to the structure of power that has put
these women where they are, and an apparent lack of awareness that
their failure to question it helps keep most women out and down.
Some of the women who are the most successful in existing terms,
those who most exemplify the achievements feminism has fought to
make possible to all-of whom, of course, there are very few-were,
I found, the most likely to defend those abuses of women, such as
prostitution and pornography, which keep their own value high,
high at least among women. What does it mean when those few who
have probably never had to sell their bodies on the street or for a
camera defend as liberation the system of sex for survival that com-

216
 Afterword

prises the limits of the possible for so many? Who is Linda Marchiano
to them? If I had ever been tempted to mistake the ghetto of the or­
ganized women's movement for women in movement, this ended it.
The intellectual defense of sexuality and gender as they are,
couched in terms of more freedom having been achieved, while all
aggregate indices show that the options available to most women
have improved little, is epidemic. This suggests not only an indepen­
dent stake in the belief in progress, not only a sentimentalist ten­
dency to see things as actually being the way one wishes they were,
but a vision of change for all having been traded for a better deal for
some. One struggles to recall that there was a vision of change that
meant more than the sum of individual advances. Perhaps the mean­
ing for the women's movement of the national turn to the right is that
more and more are settling for less and less, for things as they are,
feminists included. Maybe this is one of the ways that initially brave
movements for change come to settle for so little and turn into more
of the same.
Take, for example, lawyers, a group whose radicals concededly
tend to look radical only when compared with other lawyers during
the best of times. Too many women lawyers seem comfortable seeing
women as in need of help, as a perpetual client population. But when
confronted with a serious risk of empowerment, many of them be­
come remarkably system-identified and start talking about rights we
all enjoy, as if legal neutrality were not a coverup for inequalities we
do not all equally share. This is at once fertile self-reflection and fa­
miliarly treacherous ground. This system survives partly because
such women give it a patina of legitimacy by functioning as the pads
on its cells, softening its appearance of force. But they are not the
other side. A political movement simply implodes when internal be­
trayals become the only other side it can see.
Audiences constantly expressed their desire for sexual connection
undominated by dominance, unimplicated in the inequality of the
sexes, a sexuality of one's own yet with another, both of whom are
equally present because yes is meaningful because no is meaningful.
Meaning in relation is understood to require much more than a sce­
nario of sensation; pleasure is easy compared with connection, which
is hard. The problem, it seems to me, is that many people want to
believe they already have this more than they want to have it. Their
questions suggested this in many forms: because sex feels good, this
critique is bad; because I want sex to feel right, this critique is wrong;
because I (want to) believe sex could feel true, this critique is false.

217
Afterword

Their questions come in many voices: since Freud, the derepression

of sexuality has been part of the movement for human liberation,
which, as I understand it, you seem to be questioning ...; you mean,
all these years with Claire ...? What we have had, what we do have,
what we can have are deeply confounded here.The tenses and levels
get mixed by an underlying biologism through which sexuality is part
of the natural world first, the social world incidentally, the political
world only when the state gets involved. Audiences want to affirm
that the sexuality for which we need what we do not have-a society
of sex equality-already exists and merely needs to be unearthed.
They desperately want at least an account of its current possibility.
To put it mildly, people take sex personally.A woman has to feel
bad about sex every minute, apparently, or a critique of sexuality as
a realm of sex inequality is reductive or demeaning or incorrect. In
serious political analyses, say marxism, a worker can sometimes have
a good day or even a good job.That does not mean the worker has
false consciousness or the work is not exploited labor, structurally
speaking.Conceiving the sexual as a realm of the subjective, the final
outpost of individual feeling, the touchstone for authentic emotion,
is part of the way the sexual works as politics, so that sexual abuse
can become what is called sex.Because sexism is basic and has been
impervious to basic change, it makes sense that it would live in some­
thing socially considered basic, deceptively a part of the given, en­
shrouded with celebratory myth and ritual. Sex feeling good may
mean that one is enjoying one's subordination; it would not be the
first time.Or it may mean that one has glimpsed freedom, a rare and
valuable and contradictory event. Under existing conditions, what
else would freedom be? The point is, the possible varieties of inter­
personal engagement, including the pleasure of sensation or the ex­
perience of intimacy, does not, things being as they are, make sex
empowering for women.Frankly, this is not news, but it is apparently
as tabooed and as subversive as the equally old public declaration
that the emperor has no clothes. Which probably ruined his good
time, too.
Many women in this country believe gender is a crushing reality
from which no woman is exempt.They also believe, or rather act out
a belief on a daily basis, that they are or can be exempt.If every tacit
"present company excluded" exception I encountered on the road
were excluded from the analysis, an analysis would remain that
everyone accepts as generally true, but that almost no one-meaning
nearly everyone-acknowledges applies to them in particular. Sex-

218
 Afterword

uality is like this with a vengeance. Sometimes I say that those who
believe women can fuck our way to freedom have rather limited ho­
rizons. Sometimes I say that their denial of reality means that they
don't like the same things we don't like and do want the same things
we want. Sometimes I feel I am spitting in an ocean.
Audiences want to hear about the design of life after male suprem­
acy. Or, after all this negative, what do I have to say positive. This
requests a construction of a future in which the present does not ex­
ist, under existing conditions. It dreams that the mind were free and
could, like Milton, make a heaven of hell or a hell of heaven. The
procedure is: imagine the future you want, construct actions or legal
rules or social practices as if we were already there, and that will get
us from here to there. This magical approach to social change, which
is methodologically liberal, lives entirely in the head, a head that is
more determined by present reality than it is taking seriously, yet it
is not sufficiently grounded in that reality to do anything about it. As
one scholar (a man) said to one ACLU liberal (a woman) who told
him if he didn't like the record albums (fill in television, convenience
store, cable, newsstand, theater, or adult bookstore pornography), he
didn't have to expose himself to them, "What world do you live in?"
As a strategy for social change (as opposed to a narrative strategy for
fiction, for instance), the "let's pretend" strategy is idealist and elitist
both. How can its proponents not miss women's voices too much to
proceed to imagine for them the world they should be part of build­
ing? May be one reason liberalism accomplishes so little is that it is
designed to serve those who want to think or say or imagine they are
doing good more than they want to do it.
Not to mention that to consider "no more rape" as only a negative,
no more than an absence, shows a real failure of imagination. Why
does "out now" contain a sufficiently positive vision of the future for
Vietnam and Nicaragua but not for women? Is it perhaps because
Vietnam and Nicaragua exist, can be imagined without incursions,
while women are unimaginable without the violation and validation
of the male touch?
Many of my listeners express anguish and embarrassment that
women in positions of power behave just as badly as men. The ques­
tion whether women would exercise power "differently" always
smells faintly of the body, as if women might be congenitally nicer or
would mother the country as head of state or would clean up corrup­
tion because of a genetic affinity for cleaning. From the left, this ques­
tion usually stands in for whether women in power would change

219
Afterword

anything-meaning anything other than the powerlessness of

women. I think that men are the way they are because they have
power, more than that they have power because they are the way
they are. If this is so, women who succeed to male forms of power
will largely be that way too. This will seem inappropriate only to
those who expected less and to those who expected more. Which
includes nearly everybody.
I have to admit being among those who did expect more from
Judge Ellen Bree Burns, who judged the first case of sexual harass­
ment in education as her first major case on the federal bench. She
decided that Pamela Price, a Black woman student at Yale, was not
credible when she accused a white male Yale professor of sexually
harassing her.2 The case did establish that sexual harassment is a le­
gal claim for sex discrimination in education. But the judge's findings
of fact were so unsupported that they were umeviewable, hence ir­
reversible. 3 In a true triumph of hope over experience, I continued to
expect more from Judge Sarah Evans Barker who, in her first major
case on the federal bench, decided that pornography, about which
she had little good to say, was more important than women were.
She misquoted and mischaracterized the ordinance under review,
blamed the victims, and treated the law of sex discrimination as if it
did not exist.4 The demands of the judicial role did not require either
decision, but ruling the other way surely would have compromised
these women's protective coloration. Did we work to put them there
so they could pass? There are, of course, counterexamples.5 But most
women in power are accountable to men in power, because those in
power are men. When women in power are accountable to women,
it is because they choose to be, just as some men do. This will be true
as long as sex inequality exists.
Many questions I was repeatedly asked revolved about a tacit free
will/determinism axis. For example, the parade of horrors demon­
strating the systematic victimization of women often produces the
criticism that for me to say women are victimized reinforces the
stereotype that women "are" victims, which in turn contributes to
their victimization. If this stereotype is a stereotype, it has already
been accomplished, and I come after. To those who think "it isn't
good for women to think of themselves as victims," and thus seek to
deny the reality of their victimization, how can it be good for women
to deny what is happening to them? Since when is politics therapy?
Two deeper notions of the function of speech are at work here,
though. One is that whatever is authoritatively said creates reality.

220
 Afterword

The other involves a utopian conception of the task of political

speech. From their vantage point, my purpose on that platform is not
to capture and confront the truth, but to invent a desirable vision of
the world for the audience to crawl into for a few hours. In this con­
ception of politics as fantasy and entertainment, the speaker speaks
as though what she wishes were true is true as a strategy for making
it so. Speak as though women are not victimized and we will not be
any more. Apparently it is the image of women as victims that comes
first, then their treatment accordingly. Exposing the truth of women's
victimization by speech thus becomes more dangerous than covering
up the fact of women's victimization by silence. Speech has an almost
mystical power here. This is so odd, coming as it always does from
those who argue that pornography cannot be harmful because all it
does is propagate false images of women, which are only images. I
do understand one thing that those who believe this seem (unac­
countably) not to: the experience of sex in pictures and words is an
experience of sex. I have yet to understand why my critique of victim­
ization through sex is part of victimization through sex.
I do understand that in the liberal mind, the worse and more sys­
tematic one's mistreatment is, the more it seems justified. Liberalism
has a regard for power that never sees it, yet sees only it: it never sees
power as power, yet can see as significant only that which power
does. One example is the belief that sexual abuse is inevitable. The
more we expose the extent of sexual abuse, the more we show it is
common, pervasive, persistent, legitimate, and utterly random, the
more we support its inevitability. A similar convergence of denial
with despair forms a set of bedrock beliefs that most of my audiences
do not believe they believe: they do not believe they believe rape is
inevitable, but they do; they do not believe they believe the media,
but they do; they do not believe they believe they are exempt from
gender, but they do.6 More than anything else I spoke about, these
beliefs, which insinuate themselves into society on the level of a
sneaky metaphysics, this deep structure of sex inequality rose and
cracked like an iceberg when I spoke on pornography.
Speaking about pornography is not like speaking about anything
else. It is crazier. It has logic by Escher. Things fall up. It makes grown
men cry and smart people stupid. Those who speak as if they know
everything there is to know about pornography often, it turns out,
have never seen any. Those who, it turns out, know everything there
is to know about pornography from rather intimate acquaintance
often act as though they haven't the faintest idea what I am talking

221
Afterword

about. Some say that doing something about pornography won't do

any thing real because it isn't real. Others are in a panic because they
are convinced that doing any thing about pornography will take
something very real away from them. When I suggest that they go in
a room and work this out like the Three Christs of Ypsilanti,7 that
seems to be the cue for those who will consider my critique if they
like my solution to ask me about a future in which pornography has
magically disappeared overnight. The epistemic situation is one in
which, almost necessarily, the best are ignorant and the informed
have lost all sensibility.
Some of the social theorists in my audiences are not convinced that
pornography can be part of the subordination of women because the
subordination of women happens in places where, they say, there is
no pornography. So the theory is not historically specific enough.
Pornography, they say, is effect and not cause because the oppression
of women predates pornography, so any thing done about pornogra­
phy will do nothing about the oppression of women. It does not mat­
ter that racism happens in specific forms all over the world without
ceasing to be racist. It does not matter that these people think some­
thing should be done about the Ku Klux Klan even though white
racists in South Africa do not wear sheets and burn crosses. It does
not matter that they know that the Holocaust was an anti-Semitic
atrocity on a world-historic scale, even though it happened only in
Germany and anti-Semitism predates the Third Reich. They do not
say apartheid should be ignored as effect rather than cause because
white racism predates it and happens elsewhere in different forms.
They do not say the camps do not matter because Jews were also
victims of pogroms in Russia and torture in Argentina, where there
are no Nazis. It does not even matter that other social theorists are
not persuaded that pornography is part of male supremacy because
male supremacy is a cultural universal-so the theory is not univer­
sal enough. It does not worry any of them that women's situation fits
none of their theories. Nothing matters except that the pornography
stay s. That is gravity.
Audiences of lawyers say it is politically naive to rely on courts to
administer our pornography law our way. Then they say we should
rely on existing law and existing courts for relief of any harms of
pornography that they concede are real. Our civil rights law will pro­
duce a police state, they say. Then they recommend vigorous enforce­
ment of criminal laws against rapists and batterers, whose victims are
conceded to number well over half of all women.8 When told that

222
 Afterword

they are, in effect, recommending reversing the numbers of those in

and out of prisons, they say, do not rely on law at all. Now that we
want a law against pornography, they say that law doesn't do any­
thing significant anyway. Rely on the First Amendment-as if that is
not a law.Forget law, educate-as if law is not educational.They say
that the state is eager for the chance to suppress all sexually explicit
materials. They have no explanation-these, the political sophisti­
cates to our political naivete-for the fact that with a tool as vague
and discretionary as criminal obscenity statutes, this same state has
stood by and watched the pornography industry double in the last
ten years.9 Some day try solving a legal problem that has vexed legal
minds for decades only to find (or, perhaps, to prove) that many
people do not want it solved. And that many of these people are
lawyers.
Many in my audiences appear convinced that ads do a lot more
damage to women than even the most violent pornography. This is
because ads are more legitimate, more pervasive, more artistic, more
subtle, and do not show recognizable violence ...but Playboy is ab­
solutely harmless. Some are so concerned about the larger evil of
mass media as a whole-of which pornography is only a small part­
that nothing should be done about any of it. (They want a law to
regulate ads maybe?)
Pornography is ideas; ideas matter.Whatever goes on in the mind
of pornography's consumer matters tremendously. The final horror
of the astronauts plunging to their deaths was that they might have
known, for a final series of seconds, what was about to happen to
them. But whatever goes on in the minds of women hurt through
pornography, or even all women, who live knowing what will, sooner
or later, happen to them, and then it happens-that is trivial and
does not matter at all. Understand, these are people who claim to
understand what Derrida means when he says that speech is "always
already" writing, but claim not to be able to grasp how sexuality
could be always already pornography. Then there are the interpre­
tation people, for whom social reality has no fixed, determinate re­
ality. Society is all mental. Pornography, too, is just a fantasy. But if
it is only mental, in a world in which everything is only mental, why
isn't it as real as anything else?
Lawyers think this issue is all political, politicians think it is all
legal, and the guardians of the First Amendment are telling me what
I cannot say: to the Women and the Law Conference I cannot say
what feminism means; to governmental bodies I cannot say I speak

223
Afterword

in the interest of women; on national news I cannot say that pornog­

raphy makes all women into cunts, a status now, with the repudia­
tion of a law guaranteeing women's rights against pornography, offi­
cially sanctioned by the U.S. Supreme Court. The republic will fall if
anything is done for women who are hurt by these materials, but no
damage is done by keeping us from speaking about it. Distributors
are so intimidated by being asked, in words, if they sell pornography
that they might choose not to sell it, therefore foregoing protected
rights, but pornography itself intimidates no one, invades no pro­
tected rights, because it is only words.10 And all the lies got there
first: Linda loved it, we all do; feminist work against pornography is
inherently right wing; the First Amendment is absolute and in con­
stant danger; women are already legally inviolate and in no danger
at all.
Speaking about pornography is also not like speaking about any­
thing else because one is told that pornography is exactly like every­
thing else. This contention is central to every intellectual defense of
pornography-by which I mean central to those defenders of por­
nography who present their defenses in intellectual terms, and por­
nography has long had its intellectual defenders. They come to my
speeches too. To them, pornography is the good, the true, and the
beautiful. Good because it liberates sexuality, because it is sex, and
sex is good. True because it reflects what happens, the empirically
accurate, which (in an act of conceptual imperialism) they term real­
ity. Beautiful because it embodies all that is valued in literature and
art. Moving on from the good, its unfettered availability is just, there­
fore legal. Moving on from the true, it is scientific, because what it
shows must have happened. (And happened, and happened, and
happened.) And, moving on from the beautiful-believe me, any­
thing has "an aesthetic." In this way, what is done to women is trans­
formed into sex and speech, each defended by an absolutism: Freud­
ian absolutism for sex, First Amendment absolutism for speech. To
object that this is being done to women is to be told that one is too
literal, too simple-minded, one mistakes the reality of women for the
idea of women, a fantasy of a dead prostitute for her life.
Traditionalists, who do not like the way I talk about men and can­
not understand why I am against obscenity law, take the opposite
position. Instead of being the good, the true, and the beautiful, por­
nography is the bad, the false, and the ugly. To moralists from
Lawrence to Falwell, pornography does dirt to sex, makes sex look
bad. To the scientists, the ever-hopeful, the true social innocents, it

224
 Afterword

portrays sexuality inaccurately (don't we wish). And to the aesthetes,

it is tasteless.
Maybe some day someone will explain to me why the feminist cri­
tique of pornography-clearly labeled a political argument for a re­
distribution and transformation in the terms of power-is taken by
both pornography's traditional defenders and its traditional critics to
be the secular equivalent of how to get into heaven, of how to live a
more upright life, a so-American "how-to." But the strangest experi­
ence in this crowded field is simply, factually, to describe the pornog­
raphy, only to have that description taken as a moral exhortation. I
will never get used to this. I keep imagining that the question of
whether it is a good idea sy stematically to torture and demean human
beings is closed-even when it is done for pleasure and profit, even
when it is done through pictures and words, even when it is called
sex and done to women.
Recall that the feminist critique of pornography, which is not like
anything else, is one in which pornography is presented as not like
anything else. Pornography, in these talks, is not a question of good
or bad, false or true, edifying or tawdry, but of power and power­
lessness. I.t is first a political question, a question of sexual politics.11
Those for whom left and right are like north and south and who can­
not navigate political waters without these points of reference may
never understand this. Everyone else does. Women who have re­
jected every idea of sex equality they have ever heard leave these
speeches, and those of other feminists working against pornography,
calling pornography sex discrimination and meaning that it is part of
the violation and exploitation of women as a class. The women with
the responsive faces who never say anything pass me notes: "I am a
civil libertarian and a victim. I don't know how you are going to do
it, but it needs to be done."
The most likely to speak are the women with the "I am not really
defending pornography" defense of pornography. They will never
have as much credibility again in their lives, like those conservative
women who opposed the Equal Rights Amendment in this society 's
last major debate on the meaning of sex equality under law, whose
arguments they replicate in every formal respect.12 Then it was said
that the status quo was fine and getting better all the time. Any prob­
lems could be solved by enforcing existing laws. It was said that ad­
vocates of the ERA demeaned full-time wives and mothers by sug­
gesting that they were victims of restricted options on the basis of
sex rather than free agents exercising positive choice. Government

225
Afterword

should not get involved in these intimate issues at all. With a measure
so vague and so broad, there was no telling what it would cover.
Then followed all the heinous things it clearly would cover, like preg­
nant women in foxholes and mothers forced to work outside the
home. Why should we run all these risks just when things are getting
better? Enforce the basic bargain, don't change it.
I think that these women-much ridiculed by the liberals-feared
the meaning of sex equality in their lives, because sex inequality gave
them what little they had, so little that they felt they couldn't afford
to lose it.13 They hung onto their crumbs from experience, as if that
was all they were ever going to get. Even more, I think they opposed
ERA because they heard in it a judgment of existing possibilities that
meant that they had lived their one and only life under conditions
that were less than they might have been, which made them less than
they might have been. So they defended the life they identified with:
the domestic status quo.
Women who oppose the civil rights law against pornography are
simply conservative about other things. When they defend the life
they identify with, it is the sexual status quo they defend. It is fine
and getting better all the time. Enforcing existing laws would solve
any remaining problems. Acknowledging civil rights for women in
pornography suggests that they are victims of restricted options on
the basis of their sex and that some are directly coerced. This de­
means as victims women who choose to survive through sexual sale
through pure free will. Besides, the government should not get in­
volved in intimate issues like the subordination of women because
who knows how far it will go. The law is so vague and so broad, who
can tell what it would cover. Clearly, it would cover Barbarella and The
Taming of the Shrew. Why run all these risks when we are just begin­
ning to get the benefit of the sexual revolution? These women sense
a judgment on their lives: that they have gone along with and some­
times even enjoyed inequality in the sexual sphere. They would
rather live that way forever, and make sure other women do too, than
face what it means, in order to change it. They recommend appease­
ment. Enforce the bargain, the bargain with their men. They may one
day explain why women and children must be tortured and abused
or no one can freely think, write, or publish.
Why do so many of us put so much into trying to get the benefit
of a bargain that is hopelessly stacked against us and so little, com­
paratively; into trying to change it? Some old behavioral experiments
stick, emblematically; in my mind. In one on rewards, chickens were

226
 Afterword

divided into three groups: the first group got fed every time they
pecked; the second, every other time; the third, at random. W hen
the food was cut off, the first group stopped trying immediately. The
second group stopped soon after. The third group never stopped
trying. In another experiment, on punishments, rats were shocked
every time they tried to get out of their cages. After not too long,
their cage doors could be left open for long periods, and they never
intentionally tried to leave again.
Women are randomly rewarded and systematically punished for
being women. We are not rewarded systematically and punished at
random, as is commonly supposed. We may or may not be rewarded
if we go along with male supremacy. If we try to get out of its cage,
it is virtually certain we will be punished. Actually, we are punished
whether we try to get out or not, which is not even done to rats in
experiments. So we peck forever for the occasional crumb that seems
to reward our efforts and reinforces our hopes out of all proportion
to reality, and we spend the rest of our time skulking in the corners
of the cages we no longer try to leave. Not even when the door-as
it occasionally is, through inadvertence or compassion or perversity
or who knows what, or maybe even because some others of us bent
the thing or picked the lock-is ajar.14
In spite of everything, I suspect those who are fond of pronounc­
ing the women's movement dead of sharing the pornographers' love
for dead women, especially dead feminists. To those for whom "no
more of this" is an insufficiently affirmative goal, I recommend the
only definition of a human being I can recall that didn't make me
secretly glad I wasn't one. Bishop Desmond Tutu, speaking about
something Blacks under apartheid want from white South Africans,
said, "All we are asking you to do is to recognize that we are humans,
too. W hen you scratch us, we bleed. W hen you tickle us, we laugh."15
Women in pornography, when you tickle us, we get turned on; when
you scratch us, we start to come; when you kill us, we orgasm until
death. So long as this is how we are seen and loved, in law and in
life, women will not inhabit the world, and it is the whole world we
are entitled to. Some of us are determined, if not exactly hopeful,
that we will have it, whether we live to see it or not. We live here.
Now we want to live here.
Three years into the debate over the civil rights law against por­
nography that Andrea Dworkin and I conceived, this is what I have
come to think. If you define what you want and have a right to have
narrowly, you will be satisfied-even grateful-to be given a corner

227
Afterword

of your own, flattered to be permitted to grow through a crack in the

cement, and you will never notice that you are alone with a bunch of
men. Words like "autonomy" and "merit" and "agency," you believe,
meaningfully apply to your experience. And deep down, you don't
believe that the woman in the pornography is you. If it is inescapably
clear to you that women have been and still are confined to a very
narrow corner, constrained by strictures that don't disappear no mat­
ter what we think about them, and down is not up, you realize you
are in the company of women, and the woman in the pornography
is you.
The question then becomes not whether one trusts the law to be­
have in a feminist way. We do not trust medicine, yet we insist it
respond to women's needs. We do not trust theology, but we claim
spirituality as more than a male preserve. We do not abdicate the
control of technology because it was not invented by women. We do
not abandon the environment, the more it is taken over. We do not
trust the media; we are more likely to pressure it to express our val­
ues than to let it go on as it is because it doesn't. If women are to
restrict our demands for change to spheres we can trust, spheres we
already control, there will not be any.
The question the civil rights law against pornography raises, then,
is not only when will acts of violation stop being defended as fanta­
sies of violation, not only when will acts of cruelty stop being de­
fended as acts of love, but when will women occupy the world? Ac­
cess to things as they are, yes; to be taken on our own terms, that
too. But more: to participate in defining the terms that create the
standards, to be a voice in drawing the lines. This has been at the
heart of every women's initiative for civil equality from suffrage to
the Equal Rights Amendment: the simple notion that law-only
words, words that set conditions as well as express them, words that
are their own kind of art, words in power, words of authority, words
in life-respond to women as well as to men.

228
Notes
Acknowledgments
Index
Notes

Introduction

1 . Harris v. McRae, 448 U.S. 297 (1980). Attempts to take away the abor­
tion right have been rebuffed, ever precariously, in Akron v. Akron Center
for Reproduction Rights, Inc., 462 U.S. 416 (1983) and Thornburgh v. Amer­
ican College of Obstetricians and Gynecologists, 106 S. Ct. 2169 (1986).
2. Comparing the median income of the sexes from twenty-five to fifty­
four years of age, 1975 to 1983, the U.S. Department of Labor Women's Bu­
reau reports that in 1975, women made $8,155.00 to men's $14,105.00; in
1983, women made $15,349.66 to men's $24,458.33. U.S. Department of La­
bor, Women's Bureau, Time of Change: 1983 Handbook of Women Workers, Bul­
letin 298, 456 (1983). The same publication notes that "among professionals
in 1981, men earned 54% more than did women." Id. at 92. In 1981, men's
overall earnings exceeded women's by 68.8 percent. Id. at 93. The Equal Pay
Act was passed in 1963.
3. Phyllis Chesler, Mothers on Trial (1986).
4. Julia R. Schwendinger and Herman Schwendinger, Rape and Inequality,
Sage Library of Social Research, 44 (1983); Kenneth Polk, "Rape Reform and
Criminal Justice Processing," 31 Crime and Delinquency 191-205 (April 1985)
("What can be concluded about the achievement of the underlying goals of
the rape reform movement? . . . If a major goal is to increase the probability
of convictions, then the results are slight at best . . . or even negligible." At
199) (California data); see also P. Bart and P. O'Brien, Stopping Rape: Successful
Survival Strategies 129-31 (1985).
5. An example would be Federal Rule of Evidence 412, the "rape shield
law," and its state counterparts, which preclude inquiry into an alleged rape
victim's sexual history, except that with the perpetrator.
6. California Federal Savings and Loan Assn. v. Guerra, 758 F.2d 390 (9th
Cir. 1985), cert. granted, 54 U.S.L.W. 3460 (Jan. 13, 1986). See "Difference and
Dominance," note 18.
7. After ten years of steady legal progress in the lower courts, sexual
harassment was unanimously held to be sex discrimination by the U.S. Su­
preme Court in 1986. Meritor Savings Bank, FSB v. Vinson, 106 S. Ct. 2399
(1986). Progress in the area of marital rape is charted by Joanne Schulman,
"State-By-State Information on Marital Rape Exemption Laws," in Diana
E. H. Russell, Rape in Marriage 375-81 (1982).
8. I refer to Robin Morgan's elemental Sisterhood Is Powerful: An Anthology
of Writings from the Women's Liberation Movement (Robin Morgan ed.) (1970).

231
Notes to Pages 3-6

9. "Desire and Power" in Part I particularly develops this theme.

10. In addition to the colloquialism, I refer to the influence of Jacques Der­
rida, e.g. , his 1968 lecture, "La differance" in Marges (1972), fully expounded
in Of Grammatology (G. Spivak trans. 1977) and Positions (Alan Bass trans.
1981). "Differance" in his sense is a triple pun, referring to combined mean­
ings of differing/deferring/detouring, so that which is "different" is charac­
terized by a presence always under erasure and a self never quite there, rad­
ically latent, constituted by its lack of full recognition and realization.
However, Derrida does not treat women's "differance" as a social criticism of
women's position under male supremacy. See, e.g. , his Spurs: Nietzsche's Styles
(Barbara Harlow trans.) (1981).
1 1 . See "Difference and Dominance" in Part I for a fuller discussion and
critique of the theory that sex is a "difference."
12. See "Francis Biddle's Sister" in Part III.
13. After being passed and signed into law in Indianapolis, the civil rights
law against pornography was sued by a coalition of publishers and distribu­
tors, some pornographers and some not, known as "The Media Coalition."
The ordinance was found unconstitutional in two decisions by two Reagan
appointees, American Booksellers v. Hudnut, 598 F. Supp. 1316 (S.D. Ind.
1984) (Barker, J.); Hudnut v. American Booksellers, 771 F.2d 323 (7th Cir.
1985) (Easterbrook, J. ) . The U.S. Supreme Court summarily affirmed, 106 S.
Ct. 1 172 (1986). See "The Sexual Politics of the First Amendment" in Part III
for further discussion.
14. "Liberal legalism" is a phrase from Karl Klare, "Law-Making as Praxis,"
12 Telos 123 (1979).
15. "Sex and Violence: A Perspective" in Part II contains an early devel­
opment of the criticism of the idea that what is sex cannot be violent, and
what is violent cannot be sex. The argument is further developed in Part III,
particularly in "Francis Biddle's Sister."
16. Theorists who most expressly exemplify this tendency include Nancy
Chodorow, The Reproduction of Mothering: Psychoanalysis and the Sociology of
Gender (1978), Dorothy Dinnerstein, The Mermaid and the Minotaur: Sexual Ar­
rangements and Human Malaise (1977), and Carol Gilligan, In a Different Voice:
Psychological Theory and Women's Development (1982). The law of sex discrimi­
nation, both mainsteam doctrine under existing law and the interpretation
that dominated the debate over the Equal Rights Amendment, takes basically
the same view. For discussion, see "Not By Law Alone: From a Debate with
Phyllis Schlafly" and "Difference and Dominance."
17. Florence Rush, The Best-Kept Secret: Sexual Abuse of Children (1980), Ju­
dith Herman, Father-Daughter Incest (1981), and Jeffrey M. Masson, The As­
sault on Truth: Freud's Suppression of the Seduction Theory (1983), show the ide­
ology and history of the specifically Freudian disbelief that young girls are
sexually violated by older men.
18. Diana Russell produced this figure at my request from the random
sample data base of 930 San Francisco households discussed in her The Secret
Trauma: Incest in the Lives of Girls and Women 20-37 (1986) and Rape in Marriage

232
 Notes to Pages 6-9

27-41 (1982). The figure includes all the forms of rape or other sexual abuse
or harassment surveyed, noncontact as well as contact, from gang rape by
strangers to obscene phone calls, unwanted sexual advances on the street,
unwelcome requests to pose for pornography, and subjection to peeping
Toms and sexual exhibitionists (flashers).
19. Susan Brownmiller, Against Our Will: Men, Women and Rape (1975), is
the most widely recognized work conceptualizing rape as violence, not sex.
This was a breakthrough at a time when labeling virtually any act sex was
considered exonerating-as in fact it still is. We must confront the further
problem, however, that the line between sex and violence is indistinct and
mobile in a society in which violence means violation of that worthy of re­
spect, and women are not. The fact is, anything that anybody with power
experiences as sex is considered ipso facto not violence, because someone
who matters enjoyed it. And power, of which violence is merely an extreme
expression, is apparently very sexy. The point is to confront all of this in fact
rather than to try to wish it out of existence through theory.
20. Diana Scully and Joseph Marolla, '"Riding the Bull at Gilley's': Con­
victed Rapists Describe the Rewards of Rape," 32 Social Problems 251 (1985).
(The manuscript version of this paper was subtitled "Convicted Rapists De­
scribe the Pleasure of Raping.")
21. Henry Lee Lucas, quoted in S. Cook, "Grisly Saga of a 'Recreational
Killer,"' San Francisco Examiner, Oct. 28, 1984, A15. (Lucas said he murdered
twenty-three women; he may or may not have.) He may be referring to hav­
ing sex as part of the torture leading to murder, to the sexual thrill of the
murder itself, to having sex with the body after death, or to all three. See also
Gordon Burn, " . . . Somebody's husband, somebody's son": The Story of Peter Sut­
cliffe 258-65 (1984).
22. Arthur Goode, on death row in Florida for sexual molestation and mur­
der of children, is here quoted in City Pages (Minneapolis, Minn. ) Mar. 9-15,
1984, 4,10.
23. Annie McCombs, off our backs, October 1984, at 34 ("understand that,
violence is sex to those who practice it as sex") (letter).
24. See Jacobo Timerman, Prisoner Without a Name, Cell Without a Number
(1981). See also Torture in the Eighties, An Amnesty International Report (1984).
A lot more inquiry is needed into the collective political effect on people of
knowing that a triage process of selection for torture or death is actively oc­
curring around them. Agents of torture other than nation states should be
included in such investigations.
25. This theme is developed in "Difference and Dominance," and, in its
application to culture and ethnicity, in "Whose Culture?" both in Part I.
26. To get a sense of what this distinction looks like in application, con­
sider the contrast between gender as women live it, which is as an unequal
distribution of power, and gender as it is abstractly theorized, which is as a
bivariate differentiation. Observe that women as a group typically share
some behaviors and attitudes common to victims regardless of sex. If gender
is a difference, this commonality means that women's responses to victimiza-

233
Notes to Pages 9-11

tion are not sex based; when women exhibit these qualities, it is not as
women, but as a part of the larger class of all victims, gender neutral. If
gender is instead a substantive process of inequality, to be victimized in cer­
tain ways may mean to be feminized, to partake of the low social status of
the female, to be made into the girl regardless of biological sex. This does not
mean that men experience or share the meaning of being a woman, because
part of that meaning is that the inferiority is indelible and total until it is
changed for all women. It does mean that gender is an outcome of a social
process of subordination that is only ascriptively tied to body and doesn't
lose its particularity of meaning when it shifts embodied form. Femininity is
a lowering that is imposed; it can be done to anybody and still be what fem­
inine means. It is just women to whom it is considered natural.
27. See Edward M. Levi, An Introduction to Legal Reasoning 2,6,8 (1949).
Most nonlawyers have no idea why lawyers think so peculiarly. For example,
why must they always bring up other matters in order to discuss the one at
hand? Lawyers have been taught that Jaw is general rules to be both dis­
cerned and devised out of particular instances. Thus, to talk legally is to talk
of any particular instance in terms of its general rulelike qualities, and vice
versa. So lawyers want to look at other particular instances to see if the gen­
eral rule that accords with a particular example would be equally desirable
under other conditions. This always gives the appearance of proceeding ac­
cording to some preformulated but obscure agenda. Its mechanistic quality
makes the relation of legal thinking to thinking a bit like that of military
music to music. More formally put, this legal method combines a Kantian­
type categorical imperative with a rough scientific method, effecting a loose
synthesis between liberal moralism and primitive positivism beneath a gloss
of frontier pragmatism.
28. Berkey v. Third Avenue Ry. Co., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926).
29. Linda Lovelace and Michael McGrady, Ordeal (1980). See also her ac­
count with Michael McGrady of her life after escape, including her attempts
to be believed, Out of Bondage (1986).
30. Although some jurisdictions have held Deep Throat obscene, and some
have held it not obscene, the reality is that Deep Throat is freely sold and
exhibited nearly everywhere, including over the counter in video stores
worldwide and through home cassette markets.
Examples, not obscene: United States v. Various Articles of Obscene Mer­
chandise, Schedule No. 2102, No. 81 Civ. 5295 (S.D.N.Y. Nov. 4, 1981)
(United States sought forfeiture and condemnation of materials including
Deep Throat. The court found that they were not patently offensive to the
average person in that community), aff'd, 709 F.2d 132 (2d Cir. 1983) (no abuse
of discretion in finding the materials "not patently offensive under contem­
porary standards in the New York area"); State v. Aiuppa, 298 So. 2d 391
(Fla. 1974) ("Juries in Jacksonville and Key West, Florida, have rendered ver­
dicts that the movie 'Deep Throat' does not offend local community stan­
dards"); Keller v. State, 606 S.W. 2d 931 (Tex. Cr. App. 1980) ("[Deep Throat
testified to as] 'the longest playing motion picture in Houston motion picture

234
 Notes to Pages 11-13

theatre history' . . . widespread attendance indicates community acceptance

. . ." at 932, 933). See also City of Sioux Falls v. Mini-Kota Art Theatres, Inc.,
247 N.W. 2d 676, 678-79 (S.D. 1977).
Examples, obscene: United States v. Battista, 646 F.2d 237 (6th Cir. 1981)
(conviction of conspiracy to violate obscenity statute by transporting Deep
Throat in interstate commerce, affirmed on appeal); United States v. Peraino,
645 F.2d 548 (6th Cir. 1981) (conviction of conspiracy to violate federal ob­
scenity statute by transporting Deep Throat in interstate commerce overturned
for due process lack of venue); United States v. One Reel of Film, 360 F. Supp.
1067 (D. Mass. 1973) (forfeiture of Deep Throat under 18 U.S.C. §1305 or­
dered); Fairvilla Twin Cinema II v. State ex rel. Eagan, 353 So. 2d 909 (Fla.
App. 1977) (injunction restraining showing of Deep Throat issued); State ex
rel. Cahalan v. Diversified Theatrical Corporation, 59 Mich. App. 223, 229
N.W. 2d 389 (1975) (Deep Throat enjoined as lewd, public nuisance); Western
Corp. v. Commonwealth, 558 S. W. 2d 605 (Ky. 1977) (agreeing with jury ver­
dict that Deep Throat lacks any serious literary, political, artistic, or scientific
value); Magnum v. State's Attorney for Baltimore City, 275 Md. 450, 341 A.2d
786 (1975) ("This case [on Deep Throat] is the first case in which the question
of hard-core pornography has been considered by this Court since the Miller
definition was formulated . . . The film is clearly within the Miller definition
of obscenity or hard-core pornography"); People v. Mature Enterprises, 73
Misc. 2d 749, 343 N. Y.S. 2d 911 (1971) (defendant guilty of obscenity in pro­
moting obscene material, Deep Throat "a nadir of decadence" at 778), aff'd 36
N.Y.S. 2d 520, 323 N.E.2d 704 (1974); Houston v. Hennessey, 534 S.W.2d 52
(Mo. App. 1975) (Deep Throat obscene, theater enjoined from showing it held
in contempt for violating order); Commonwealth v. 707 Main Corp., 371
Mass. 374, 357 N.E. 2d 753 (1976) (defendant guilty of obscenity in exhibiting
Deep Throat); Coleman v. Wilson, 123 N.J. Super. 310, 302 A.2d 555 (1973)
(Deep Throat obscene); Inland Empire Enterprises, Inc. v. Morton, 365 F.
Supp. 1014 (C.D. Cal. 1973) (complaint to enjoin further searches and sei­
zures of Deep Throat dismissed with prejudice as violating abstention from
interference with state obscenity prosecutions).
Ambiguous: United States v. Marks, 520 F.2d 913 (1975) (Deep Throat is
"obscenity at its worst" at 918) rev'd, 430 U.S. 188 (1977) (court must apply
Memoirs test-is material "utterly without redeeming social value"?-be­
cause conduct occurred prior to Miller); United States v. Pinkus, 579 F.2d 1174
(9th Cir. 1978) (on remand from U.S. Supreme Court, use of Deep Throat as
standard for named film, meets test of comparability, no decision on accept­
ability to community).
31. Mandina v. Lovelace, et al., No. 81-14286 (CA05) (Dade County, Flor­
ida). This case was settled in 1986.
32. Deposition of C-- M--, Mandina v. Lovelace (Jan. 18, 1986)
212 (victim of Charles Traynor just prior to his capture of Linda Marchiano).
33. Effect of Pornography on Women and Children: Hearings Before the Subcom­
mittee on Juvenile Justice of the Senate Committee on the Judiciary, 98th Cong., 2d
Sess. 227-55 (1984) (testimony of Andrea Dworkin).

235
Notes to Pages 14-15

34. This is probably why women who take themselves seriously and reject
traditional femininity-reject being had-are so often regarded as lesbian
whether they are or not. This may also be part of the necessity to stigmatize
the lesbian-possibly even part of the identification itself, for some.
35. A defense of this debased notion of equality is central in the argument
presented by F.A.C.T. (Feminist Anti-Censorship Task Force) in opposition
to the civil rights ordinance against pornography. The brief argues that por­
nography must not be actionable by its victims because, among other rea­
sons, "The range of feminist imagination and expression in the realm of sex­
uality has barely begun to find voice. Women need the freedom and the
socially recognized space to appropriate for themselves the robustness of
what traditionally has been male language." Brief Amici Curiae of Feminist
Anti-Censorship Task Force, et a!. 31, Hudnut v. American Booksellers, 771
F.2d 323 (7th Cir. 1985). Thus, "Even pornography which is problematic for
';\"Omen can be experienced as affirming of women's desires and of women's
equality: 'Pornography can be a psychic assault . . . but for women as for
men it can also be a source of erotic pleasure . . . A woman who enjoys
pornography (even if that means enjoying a rape fantasy) is in a sense a
rebel, insisting on an aspect of her sexuality that has been defined as a male
preserve"' (quoting Ellen Willis). Id. at 30. Equality here clearly means equal
access to pornography for women, that is, equal access by women to the pop­
ulation of women that must be treated in the ways the ordinance prohibits so
the pornography of them can be made available. The F.A.CT. brief further
objects that "[t]he ordinance . . . delegitimates and makes socially invisible
women who find sexually explicit images of women 'in positions of display'
or 'penetrated by objects' to be erotic, liberating or educational." ld. at 42.
The fact that the materials which present women "in positions of display"
are actionable under the Indianapolis ordinance only by women coerced to
make them or assaulted because of them raises the question of who is making
whom invisible.
36. Tolerance of systematic inequality has been liberalism's solution to the
famous obsession with "the slippery slope" that its penchant for abstraction
creates. See, e.g. , F. Schauer, "Slippery Slopes," 99 Harvard Law Review 361
(1985). As liberals see this problem they invented, the trouble with doing
anything about anything is that if you do something for somebody, you
might have to do everything for everybody. It follows that nothing gets done
for anybody. No step for some people ever leads to another step for anyone
like them, while everything gets done for some other people without the
slope ever turning slippery under foot, but this fact never seems to catch up
with this worry. Every time something is considered that would benefit a
"discrete and insular minority," United States v. Carolene Products Co., 304
U.S. 144, 153 n.4 (1938), we hear that it cannot be done for anyone because
it would have to be done for everyone. Never why it should or shouldn't be
done for all. Or that it won't be "while this court sits." Panhandle Oil Com­
pany v. Knox, 277 U.S. 218, 223 (1928) ("[t]he power to tax is not the power
to destroy while this Court sits") (Holmes, J., dissenting). And never that no

236
 Notes to Pages 15-24

minority is more discrete and insular than the one that runs this country,
Robert Dahl, Who Governs? (1961), and everything is done for them-and
only for them.
37. Susan Rae Peterson, "Coercion and Rape: The State as a Male Protec­
tion Racket," in Feminism and Philosophy 360 (1977). See p. 239, note 16.
38. Norman Mailer, quoted in S. Griffin, Pornography and Silence: Culture's
Revenge against Nature 206 (1981).

1. Not By Law Alone

1 . Diana E. H. Russell, The Secret Trauma: Incest in the Lives of Women and
Girls 217, 270 (1986). See also David Finkelhor, Sexually Victimized Children 83,
92 (1979); Judith Herman and Lisa Hirschman, "Father-Daughter Incest," 2
Signs: Journal of Women in Culture and Society 735 (1977).
2. Diana E. H. Russell and Nancy Howell, "The Prevalence of Rape in the
United States Revisited," 4 Signs: Journal of Women in Culture and Society 688
(1983); Federal Bureau of Investigation, Uniform Crime Reports 1965,1974,1976;
Federal Bureau of Investigation, Uniform Crime Reports 1980 at 6,14,15 (1981);
M. Hindelang and B. Davis, "Forcible Rape: A Statistical Profile," in Forcible
Rape: The Crime, the Victim, and the Offender 91-110 (Duncan Chapell, Robley
Geis, and Gilbert Geis eds. 1977); Diana E. H. Russell, Rape in Marriage
(1982).
3. For citation, see "Introduction," note 18.
4. R. Emerson Dobash and Russell Dobash, Violence against Wives 14-20
(1979); Roger Langley and Richard Levy, Wife Beating (1977); Harold R. Lentz­
ner and Marshall M . DeBerry, Bureau of Justice Statistics, U.S. Department
of Justice, Intimate Victims: A Study of Violence among Friends and Relatives
(1980); Evan Stark, Anne Flitcraft, and William Frazier, "Medicine and Pa­
triarchal Violence: The Social Construction of a Private Event," 9 International
Journal of Health Services 461-93 (1979); Leonore Walker, The Battered Woman
19-20 (1979).
5. James Boudouris, "Homicide and the Family," 33 Journal of Marriage and
the Family 667, 671 (1971); Evelyn Gibson and S. Klein, Murder 1 957 to 1968:
A Home Office Statistical Division Report on Murder in England and Wales (1969);
Hans Von Hentig, The Criminal and His Victim 392 (1948); Arthur MacDonald,
"Death Penalty and Homicide," 16 American Journal of Sociology 88, 96 (1911);
Donald J. Mulvihill, Melvin M. Tumin, and Lynn A. Curtis, Crimes of Violence,
XI Report of the National Commission on the Causes and Prevention of Vio­
lence (1969); data of the National Commission on the Causes and Prevention
of Violence discussed in Lee H. Bowker, "The Criminal Victimization of
Women," 4 Victimology: An International Journal 371, 384 (1979); Marvin E.
Wolfgang, Patterns in Criminal Homicide 32, 50-67, 204, 213-14, 217 (1958);
Margaret A. Zahn, "The Female Homicide Victim," 13 Criminology 400 (1975).
6. Joint Economic Committee, "Employment, Unemployment and
Wages: Status of the Labor Force," Economic Indicators: January 1 982, 97th
Cong., 2d Sess. 11,12.

237
Notes to Pages 24-31

7. Myra H. Strober, "Formal Extrafamily Child Care-Some Economic

Observations," in Sex, Discrimination and the Division of Labor 346-75 (Cynthia
B. Lloyd ed.) (1975).
8. Moira K. Griffin, "Wives, Hookers and the Law," Student Lawyer (Jan.
1982) at 18. Pimps probably receive most of this money.
9. Id. See esp. 18, quoting Priscilla Alexander, codirector of NOW Na­
tional Task Force on Prostitution.
10. Id. See also Kathleen Barry, Female Sexual Slavery (1979).
1 1 . U.S. Merit Systems Protection Board, Office of Merit Systems Review
and Studies, Sexual Harassment in the Federal Workplace: Is It a Problem? (1981);
on education, see National Advisory Council on Women's Education Pro­
grams, U.S. Department of Education, Sexual Harassment: A Report on the Sex­
ual Harassment of Students (1980).
12. I have rendered "Black" in upper case. Black is conventionally, I am
told, regarded as a color rather than a racial or national designation, and
hence is not usually capitalized. I do not regard Black as merely a color of
skin pigmentation, but as a heritage, an experience, a cultural and personal
identity. It acquires its meaning under specific social conditions, one of which
is racism, one of which is politically self-conscious struggle against racism.
Black is thus as much socially created as, and at least in the American context
is as meaningful and definitive as, any linguistic, tribal, or religious ethnicity,
all of which are conventionally recognized by capitalization. While capital­
izing "white" might expose it as equally contingent and political, perhaps
even reveal the definitive unity of the privilege it confers, under current con­
ditions of white supremacy it seems to me to require no underlining as an
affirmative self-identification. Capitalizing both would also communicate an
equality that is now false, and would take no side toward making the equality
a true one.
Data and views on abortion come from National Center for Health Statis­
tics, United States, 1980, Table 5: Legal abortions, abortion-related deaths and
death rates, and relative risk of death, according to period of gestation:
United States, 1973-75 and 1976-78 (1980); Mary Steichen Calderone (ed.),
Abortion in the United States (1958), see esp. "Illegal Abortions in the United
States" at 50-66; Andrea Dworkin, Right-Wing Women chap. 3 (1983); Ethics,
Religion and Abortion: Hearings on S. 158 before the Subcommittee on the Separation
of Powers of the Senate Committee on the Judiciary, 97th Cong., 1st Sess. , 831
(1981) (statement of Rosemary Radford Ruether); Germaine Grisez, Abortion:
The Myths, the Realities and the Arguments (1970) (a conservative critical work,
see esp. chap. 2, "A Sociological View"); Westchester Coalition for Legal
Abortion, Legal Abortion: Arguments Pro and Con (n.d.).
13. Monique Wittig, Les Guerilleres 89 (1973).
14. Ellen E. Morgan, "The Erotization of Male Dominance/Female Submis­
sion," University of Michigan Papers in Women's Studies (1975).
15. Charles J. Anderson, 1 981-82 Fact Book for Academic Administrators,
American Council on Education 119 (1981); R. Beazley, Salaries, Tenure and

238
 Notes to Page 31

Full Time Instructional Faculty in Institutions of Higher Education 1975-76 2; W.

Vance Grant and Leo J. Eiden, National Center for Education Statistics, Digest
of Education Statistics 107, 109, 119 (1981); W. Vance Grant and C. George Lind,
National Center for Education Statistics, Digest of Education Statistics 100
(1979); Janet Mitchell (ed.), Higher Education Exchange 722 (1981) .
1 6 . Susan Rae Peterson, "Coercion and Rape: The State a s a Male Protec­
tion Racket," Feminism and Philosophy 360 (Mary Vetterling-Bragin, Frederich
A. Elliston, and Jane English eds.) (1977). See also Janet Rifkin, "Toward a
Theory of Law and Patriarchy," 3 Harvard Women's Law Journa/ 83 (1980).
17. This debate occurred in the waning months of the most recent attempt
to ratify a federal Equal Rights Amendment (ERA). I had not spoken on ERA
before and had not been actively involved in the ratification effort. Because I
did not want to hurt its chance for approval, its chance to do something for
women, I had allowed myself to be persuaded to modify my criticism of its
leading interpretation, Barbara Brown, Thomas I. Emerson, Gail Falk, and
Ann E. Freedman, "The Equal Rights Amendment: A Constitutional Basis
for Equal Rights for Women," 80 Yale Law Journal 871 (1971). For the criticism
as modified see Catharine A. MacKinnon, Sexual Harassment of Working
Women 114-15 and 264 n.SS (1979).
Now I do not think it was right to remain silent while the debate on the
meaning of sex equality was defined in liberal terms, excluding most issues
most crucial to most women and most central to their situations. I was told
that pursuing an untried, if more true, analysis of sex equality risked losing
something that, once gained, might be more meaningfully interpreted. Def­
erence to this calculus overcame the sense, a sense that grew into a convic­
tion with each setback, that ERA's leading interpretation and the strategies
based on it would not only limit the value of the measure if it won but would
ensure its loss. I felt that the reduction of the principle of equality of rights
to empirical sameness between groups was somehow connected not only
with the inability of the campaign to reach the hopes and touch the resent­
ments of many women (for a feminist analysis of conservative women as
women, see Andrea Dworkin, Right Wing Women [1983)), but also with the
contempt many ERA proponents communicated for its female opponents,
Mrs. Schlafly prominently included. By spring of 1982, there seemed little to
lose, even from the truth. I was determined to have a real discussion with
this formidable woman. See C. Felsenthal, Sweetheart of the Silent Majority
(1981); Deborah Rhode, "Equal Rights in Retrospect," 1 Law & Inequality: A
Journal of Theory and Practice 1 (1983).
ERA means women's equality, to those who urgently seek it, to those who
abhor it, and to those who find saying it in law somewhat obvious if not yet
redundant. That was true then and it is true now. The same ERA was re­
introduced after its defeat on July 14, 1982, although it failed to secure the
necessary votes. It remains important to say what the equality of women
might mean and what is in its way.

239
Notes to Pages 33-35

2. Difference and Dominance

1. The Bona Fide Occupational Qualification (BFOQ) exception to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 e-(2)(e), permits sex to
be a job qualification when it is a valid one. The leading interpretation of the
proposed federal Equal Rights Amendment would, pursuing a similar ana­
lytic structure, permit a "unique physical characteristic" exception to its oth­
erwise absolute embargo on taking sex into account. Barbara Brown, Thomas
I. Emerson, Gail Falk, and Ann E. Freedman, "The Equal Rights Amend­
ment: A Constitutional Basis for Equal Rights for Women," 80 Yale Law Journal
893 (1971).
2. Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000 e; Phillips v.
Martin-Marietta, 400 U.S. 542 (1971). Frontiero v. Richardson, 411 U.S. 484
(1974) is the high-water mark of this approach. See also City of Los Angeles
v. Manhart, 435 U.S. 702 (1978); Newport News Shipbuilding and Dry Dock
Co. v. EEOC, 462 U.S. 669 (1983).
3. Title IX of the Education Amendments of 1972, 20 U.S. C.§1681; Can­
non v. University of Chicago, 441 U.S. 677 (1981); Mississippi University for
Women v. Hogan, 458 U.S. 718 (1982); see also De La Cruz v. Tormey, 582 F.2d
45 (9th Cir. 1978).
4. My impression is that women appear to lose most academic sex dis­
crimination cases that go to trial, although I know of no systematic or statis­
tical study on the subject. One case that won eventually, elevating the stan­
dard of proof in the process, is Sweeney v. Board of Trustees of Keene State
College, 439 U.S. 29 (1979). The ruling for the plaintiff was affirmed on re­
mand, 604 F.2d 106 (1st Cir. 1979).
5. Hishon v. King & Spalding, 467 U. S. 69 (1984).
6. See, e.g. , Vanguard Justice v. Hughes, 471 F. Supp. 670 (D. Md. 1979);
Meyer v. Missouri State Highway Commission, 567 F.2d 804, 891 (8th Cir.
1977); Payne v. Travenol Laboratories Inc., 416 F. Supp. 248 (N.D. Mass.
1976). See also Dothard v. Rawlinson, 433 U.S. 321 (1977) (height and weight
requirements invalidated for prison guard contact positions because of dis­
parate impact on sex).
7. Frontiero v. Richardson, 411 U.S. 484 (1974); Schlesinger v. Ballard, 419
u.s. 498 (1975).
8. This situation is relatively complex. See Gomes v. R.I. Interscholastic
League, 469 F. Supp. 659 (D. R.I. 1979); Brenden v. Independent School Dis­
trict, 477 F.2d 1292 (8th Cir. 1973); O'Connor v. Board of Education of School
District No. 23, 645 F.2d 578 (7th Cir. 1981); Cape v. Tennessee Secondary
School Athletic Association, 424 F. Supp. 732 (E.D. Tenn. 1976), rev'd, 563
F.2d 793 (6th Cir. 1977); Yellow Springs Exempted Village School District
Board of Education v. Ohio High School Athletic Association, 443 F. Supp.
753 (S.D. Ohio 1978); Aiken v. Lieuallen, 593 P.2d 1243 (Or. App. 1979).
9. Rostker v. Goldberg, 453 U.S. 57 (1981). See also Lori S. Kornblum,
"Women Warriors in a Men's World: The Combat Exclusion," 2 Law and In­
equality: A Journal of Theory and Practice 353 (1984).

240
 Notes to Pages 35-36

10. David Cole, "Strategies of Difference: Litigating for Women's Rights in

a Man's World," 2 Law & Inequality: A Journal of Theory and Practice 34 n.4 (1984)
(collecting cases).
1 1 . Devine v. Devine, 398 So. 2d 686 (Ala. Sup. Ct. 1981); Danielson v.
Board of Higher Education, 358 F. Supp. 22 (S.D.N.Y. 1972); Weinberger v.
Wiesenfeld, 420 U.S. 636 (1975); Stanley v. Illinois, 405 U.S. 645 (1971); Caban
v. Mohammed, 441 U.S. 380 (1979); Orr v. Orr, 440 U.S. 268 (1979).
12. Lenore Weitzman, "The Economics of Divorce: Social and Economic
Consequences of Property, Alimony and Child Support Awards," 28
U.C.L.A. Law Review 1 118, 1251 (1982), documents a decline in women's stan­
dard of living of 73 percent and an increase in men's of 42 percent within a
year after divorce.
13. Equal P�y Act, 29 U.S. C. § 206(d)(1) (1976) guarantees pay equality, as
does case law, but cf. data on pay gaps, "Introduction," note 2.
14. Examples include Christenson v. State of Iowa, 563 F.2d 353 (8th Cir.
1977); Gerlach v. Michigan Bell Tel. Co., 501 F. Supp. 1300 (E.D. Mich. 1980);
Odomes v. Nucare, Inc., 653 F.2d 246 (6th Cir. 1981) (female nurse's aide
denied Title VII remedy because her job duties were not substantially similar
to those of better-paid male orderly); Power v. Barry County, Michigan, 539
F. Supp. 721 (W.D. Mich. 1982); Spaulding v. University of Washington, 740
F. 2d 686 (9th Cir. 1984).
15. County of Washington v. Gunther, 452 U.S. 161 (1981) permits a com­
parable worth-type challenge where pay inequality can be proven to be a
correlate of intentional job segregation. See also Lemons v. City and County
of Denver, 17 FEP Cases 910 (D. Colo. 1978), aff'd, 620 F.2d 228 (lOth Cir.
1977), cert. denied, 449 U.S. 888 (1980); AFSCME v. State of Washington, 770
F.2d 1401 (9th Cir. 1985). See generally Carol Jean Pint, "Value, Work and
Women," 1 Law & Inequality: A Journal of Theory and Practice 159 (1983).
16. Combine the result in Bob Jones University v. United States, 461 U.S.
547 (1983) with Mississippi University for Women v. Hogan, 458 U.S. 718
(1982), and the tax-exempt status of women-only schools is clearly threat­
ened.
17. A particularly pungent example comes from a case in which the plain­
tiff sought to compete in boxing matches with men, since there were no
matches sponsored by the defendant among women. A major reason that
preventing the woman from competing was found not to violate her equality
rights was that the "safety rules and precautions [were] developed, designed,
and tested in the context of all-male competition." Lafler v. Athletic Board of
Control, 536 F. Supp. 104, 107 (W.D. Mich. 1982). As the court put it: "In this
case, the real differences between the male and female anatomy are relevant
in considering whether men and women may be treated differently with re­
gard to their participating in boxing. The plaintiff admits that she wears a
protective covering for her breasts while boxing. Such a protective covering
. . . ·would violate Rule Six, Article 9 of the Amateur Boxing Federation rules
currently in effect. The same rule requires contestants to wear a protective

241
Notes to Page 36

cup, a rule obviously designed for the unique anatomical characteristics of

men." Id. at 106 (emphasis added). The rule is based on the male anatomy,
therefore not a justification for the discrimination but an example of it. This
is not considered in the opinion, nor does the judge discuss whether women
might benefit from genital protection, and men from chest guards, as in some
other sports.
18. This is a reference to the issues raised by several recent cases which
consider whether states' attempts to compensate pregnancy leaves and to
secure jobs on return constitute sex discrimination. California Federal Sav­
ings and Loan Assn. v. Guerra, 758 F.2d 390 (9th Cir. 1985), cert. granted 54
U.S.L.W. 3460 (U.S. Jan. 13, 1986); see also Miller-Wohl v. Commissioner of
Labor, 515 F. Supp. 1264 (D. Montana 1981), vacated and dismissed, 685 F.2d
1088 (9th Cir. 1982). The position argued in "Difference and Dominance" here
suggests that if these benefits are prohibited under Title VII, Title VII is un­
constitutional under the equal protection clause.
This argument was not made directly in either case. The American Civil
Liberties Union argued that the provisions requiring pregnancy to be com­
pensated in employment, without comparable coverage for men, violated
Title VII's prohibition on pregnancy-based classifications and on sex. Mon­
tana had made it illegal for an employer to "terminate a woman's employ­
ment because of her pregnancy" or to "refuse to grant to the employee a
reasonable leave of absence for such pregnancy." Montana Maternity Leave
Act § 49-2-310(1) and (2). According to the ACLU, this provision "grants
pregnant workers certain employment rights not enjoyed by other workers
. . . Legislation designed to benefit women has . . . perpetuated destructive
stereotypes about their proper roles and operated to deny them rights and
benefits enjoyed by men. The [Montana provision] deters employers from
hiring women who are or may become pregnant, causes resentment and hos­
tility in the workplace, and penalizes men." Brief of American Civil Liberties
Union, et al. amicus curiae, Montana Supreme Court No. 84-172, at 7. The
National Organization for Women argued that the California provision,
which requires employers to give pregnant workers unpaid disability leave
with job security for up to four months, would violate Title VII should Title
VII be interpreted to permit it. Brief of National Organization for Women, et
al., United States Court of Appeals for the Ninth Circuit, 685 F.2d 1088 (9th
Cir. 1982).
When Congress passed the Pregnancy Discrimination Act, amending Title
VII, 42 U.S. C. § 2000 e(k), it defined "because of sex" or "on the basis of sex"
to include "because of or on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all employment-related pur­
poses." In so doing, Congress arguably decided that one did not have to be
the same as a man to be treated without discrimination, since it guaranteed
freedom from discriminatory treatment on the basis of a condition that is not
the same for men as it is for women. It even used the word "women" in the
statute.

242
 Notes to Pages 36-37

Further, Congress made this decision expressly to overrule the Supreme

Court decision in General Electric v. Gilbert, 429 U.S. 125 (1976), which had
held that failure to cover pregnancy as a disability was not sex discrimination
because the line between pregnant and nonpregnant was not the line be­
tween women and men. In rejecting this logic, as the Court found it did
expressly in Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462
U.S. 669, 678 (1983), Congress rejected the implicit measuring of women's
entitlement to equality by a male standard. Nor need all women be the same,
that is, pregnant or potentially so, to have pregnancy-based discrimination
be sex-based discrimination.
Upholding the California pregnancy leave and job security law, the Ninth
Circuit opinion did not require sameness for equality to be delivered: "The
PDA does not require states to ignore pregnancy. It requires that women be
treated equally . . . [E]quality under the PDA must be measured in employ­
ment opportunity, not necessarily in amounts of money expended-or in
amounts of days of disability leave expended. Equality . . . compares cover­
age to actual need, not coverage to hypothetical identical needs." California
Federal v. Guerra, 758 F.2d 390 (9th Cir. 1985) (Ferguson, J.). "We are not the
first court to announce the goal of Title VII is equality of employment oppor­
tunity, not necessarily sameness of treatment." Id. at 396 n.7.
19. Most women work at jobs mostly women do, and most of those jobs
are paid less than jobs that mostly men do. See, e.g., Pint, note 15 above, at
162-63 nn.19, 20 (collecting studies). To the point that men may not meet the
male standard themselves, one court found that a union did not fairly rep­
resent its women in the following terms: "As to the yard and driver jobs,
defendants suggest not only enormous intellectual requirements, but that the
physical demands of those jobs are so great as to be beyond the capacity of
any female. Again, it is noted that plaintiffs' capacity to perform those jobs
was never tested, despite innumerable requests therefor. It is also noted that
defendants have never suggested which of the innumerable qualifications
they list for these jobs (for the first time) the plaintiffs might fail to meet. The
court, however, will accept without listing here the extraordinary catalogue
of feats which defendants argue must be performed in the yard, and as a
driver. That well may be. However, one learns from this record that one can­
not be too weak, too sick, too old and infirm, or too ignorant to perform these
jobs, so long as one is a man. The plaintiffs appear to the layperson's eye to be
far more physically fit than many of the drivers who moved into the yard,
over the years, according to the testimony of defense witnesses . . . In short,
they were all at least as fit as the men with serious physical deficits and dis­
abilities who held yard jobs." Jones v. Cassens Transport, 617 F. Supp. 869,
892 (1985) (emphasis in original).
20. Phillips v. Martin-Marietta, 400 U.S. 542 (1971).
21. Reed v. Reed, 404 U.S. 71 (1971) held that a statute barring women
from administering estates is sex discrimination. If few women were taught
to read and write, as used to be the case, the gender difference would not be

243
Notes to Pages 37-41

imaginary in this case, yet the social situation would be even more sex dis­
criminatory than it is now. Compare City of Los Angeles v. Manhart, 434
U.S. 815 (1978), which held that requiring women to make larger contribu­
tions to their retirement plan was sex discrimination, in spite of the allegedly
proven sex difference that women on the average outlive men.
22. Kahn v. Shevin, 416 U.S. 351, 353 (1974).
23. Schlesinger v. Ballard, 419 U.S. 498 (1975).
24. Dothard v. Rawlinson, 433 U.S. 321 (1977); see also Michael M. v. So­
noma County Superior Court, 450 U.S. 464 (1981).
25. Doerr v. B.F. Goodrich, 484 F. Supp. 320 (N.D. Ohio 1979). Wendy
Webster Williams, "Firing the Woman to Protect the Fetus: The Reconciliation
of Fetal Protection with Employment Opportunity Goals Under Title VII," 69
Georgetown Law Journal 641 (1981). See also Hayes v. Shelby Memorial Hospi­
tal, 546 F. Supp. 259 (N.D. Ala. 1982); Wright v. Olin Corp., 697 F.2d 1172
(4th Cir. 1982).
26. Congress requires the Air Force (10 U.S. C. § 8549 [1983]) and the Navy
(10 u.s. c. § 6015 (1983]) to exclude women from combat, with some excep­
tions. Owens v. Brown, 455 F. Supp. 291 (D.D.C. 1978), had previously in­
validated the prior Navy combat exclusion because it prohibited women from
filling jobs they could perform and inhibited Navy's discretion to assign
women on combat ships. The Army excludes women from combat based
upon its own policies under congressional authorization to determine assign­
ment (10 U.S. C. § 3012 [e] (1983]).
27. Carol Gilligan, In a Different Voice
. (1982).
28. Id.
29. I argued this in Appendix A of my Sexual Harassment of Working Women:
A Case of Sex Discrimination (1979). That book ends with "Women want to be
equal and different, too." I could have added "Men are." As a standard, this
would have reduced women's aspirations for equality to some corresponding
version of men's actualities. But as an observation, it would have been true.
30. Diana Russell and Nancy Howell, "The Prevalence of Rape in the
United States Revisited," 8 Signs: Journal of Women in Culture and Society 689
(1983) (44 percent of women in 930 households were victims of rape or at­
tempted rape at some time in their lives).
31. Diana Russell, "The Incidence and Prevalence of Intrafamilial and Ex­
trafamilial Sexual Abuse of Female Children," 7 Child Abuse & Neglect: The
International ]ournal 133 (1983).
32. R. Emerson Dobash and Russell Dobash, Violence against Wives: A Case
against the Patriarchy (1979); Bruno v. Codd, 90 Misc. 2d 1047, 396 N.Y.S. 2d
974 (Sup. Ct. 1977), rev'd, 64 A.D. 2d 582, 407 N.Y.S. 2d 165 (1st Dep't 1978),
aff'd 47 N.Y. 2d 582, 393 N.E. 2d 976, 419 N.Y.S. 2d 901 (1979).
33. Kathleen Barry, Female Sexual Slavery (1979); Moira K. Griffin, "Wives,
Hookers and the Law: The Case for Decriminalizing Prostitution," 10 Student
Lawyer 18 (1982); Report of Jean Femand-Laurent, Special Rapporteur on the
Suppression of the Traffic in Persons and the Exploitation of the Prostitution
of Others (a United Nations report), in International Feminism: Networking

244
 Notes to Pages 41-52

against Female Sexual Slavery 130 (Kathleen Barry, Charlotte Bunch, and Shir­
ley Castley eds.) (Report of the Global Feminist Workshop to Organize
against Traffic in Women, Rotterdam, Netherlands, Apr. 6-15, 1983 [1984]).
34. Galloway and Thornton, "Crackdown on Pornography-A No-Win
Battle," U.S. News and World Report, June 4, 1984, at 84. See also "The Place of
Pornography," Harper's, November 1984, at 31 (citing $7 billion per year).
35. Loving v. Virginia, 388 U.S. 1 (1967), first used the term "white su­
premacy" in invalidating an antimiscegenation law as a violation of equal
protection. The law equally forbade whites and Blacks to intermarry. Al­
though going nowhere near as far, courts in the athletics area have some­
times seen that "same" does not necessarily mean "equal" nor does "equal"
require "same." In a context of sex inequality like that which has prevailed
in athletic opportunity, allowing boys to compete on girls' teams may dimin­
ish overall sex equality. "Each position occupied by a male reduces the female
participation and increases the overall disparity of athletic opportunity which
generally exists." Petrie v. Illinois High School Association, 394 N.E. 2d 855,
865 (Ill . 1979). "We conclude that to furnish exactly the same athletic oppor­
tunities to boys as to girls would be most difficult and would be detrimental
to the compelling governmental interest of equalizing general athletic oppor­
tunities between the sexes." Id.
36. The scholars Tussman and tenBroek first used the term "fit" to char­
acterize the necessary relation between a valid equality rule and the world to
which it refers. J. Tussman and J. tenBroek, "The Equal Protection of the
Laws," 37 California Law Review 341 (1949).
37. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920): "[A classifi­
cation] must be reasonable, not arbitrary, and must rest upon some ground
of difference having a fair and substantial relation to the object of the legis­
lation, so that all persons similarly circumstanced shall be treated alike."
Reed v. Reed, 404 U.S. 71, 76 (1971): "Regardless of their sex, persons within
any one of the enumerated classes . . . are similarly situated . . . By provid­
ing dissimilar treatment for men and women who are thus similarly situated,
the challenged section violates the Equal Protection Oause."
38. Washington v. Davis, 426 U.S. 229 (1976) and Personnel Administrator
of Massachusetts v. Feeney, 442 U.S. 256 (1979) require that intentional dis­
crimination be shown for discrimination to be shown.

3. Desire and Power

1 . Catharine A. MacKinnon, "Feminism, Marxism, Method and the State:

An Agenda for Theory," 7 Signs: Journal of Women in Culture and Society 515
(1982).
2. Catharine A. MacKinnon, "Feminism, Marxism, Method and the State:
Toward Feminist Jurisprudence," 8 Signs: Journal of Women in Culture and So­
ciety 635 (1983).
3. See "Not By Law Alone,'' note 2.
4. The following notes to "Not By Law Alone" document these data: on

245
Notes to Pages 52-66

incest, note 1; on battery, note 4; on murder, note 5. On pornography, Gal­

loway and Thornton, "Crackdown on Pornography-A No-Win Battle," U.S.
News and World Report, June 4, 1984, at 84; M . Langelan, "The Political Econ­
omy of Pornography," Aegis: Magazine on Ending Violence against Women 5-17
(1981); Andrea Dworkin, Pornography: Men Possessing Women (1981).
5. Nancy Chodorow, The Reproduction of Mothering: Psychoanalysis and the
Sociology of Gender (1978); Dorothy Dinnerstein, The Mermaid and the Minotaur:
Sexual Arrangements and Human Malaise (1977).

4. Whose Culture?

1 . Washington v. Davis, 426 U.S. 229 (1976); Arlington Heights v. Met­

ropolitan Housing Corp., 429 U.S. 252 (1977); Personnel Administrator of
Mass. v. Feeney, 442 U.S. 256 (1979).
2. See David Cole, "Strategies of Difference: Litigating for Women's Rights
in a Man's World," 2 Law & Inequality: A Journal of Theory and Practice 33 (1984) .
3. Data at Catharine A. MacKinnon, Sexual Harassment of Working Women:
A Case of Sex Discrimination 9-15 (1979). The patterns have not changed.
4. "We emphasize that the differentiating factor between de jure segre­
gation and so-called de facto segregation" is "purpose or intent to segregate."
Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 208 (1973). Nar­
rowing the scope of lawsuits through focus on fault (intent) is one of the ways
effective segregation can be maintained society-wide in the face of legal man­
dates against it. The basic move is to shift the issue from whether or not a
problem exists to whether or not it is the exclusive fault of the defendant, so
that the original cause of the discrimination is always elsewhere. So long as
racism is pervasive, such a defense will remain plausible. See also Milliken v.
Bradley, 418 U.S. 717 (1974); Hazlewood School Dist. v. United States, 433
U.S. 299 (1977); Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979); Dayton
Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979).
5. "Our Constitution is color-blind." Plessy v. Ferguson, 163 U.S. 537, 559
(1896) (Harlan, }., dissenting). See also Fullilove v. Klutznick, 448 U.S. 448,
482 (1980); United Steelworkers of America v. Weber, 443 U.S. 193 (1979);
Regents of the University of California v. Bakke, 438 U.S. 256, 327 (1978).
6. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
7. 436 U.S. at 71-72.
8. Tribal sovereignty includes rules of membership and inheritance, do­
mestic relations and child custody or adoption, substantive criminal and civil
laws and tribal court jurisdiction in internal matters. Tribes may levy taxes,
allocate tribal property among members and regulate its uses, regulate hunt­
ing and fishing by its members, exclude persons from tribal territory, and
exercise some civil regulatory and judicial jurisdiction over non-Indians.
Tribes are not sovereign concerning alienation of tribal land. They may not
have direct commercial or governmental relations with foreign nations and
have no jurisdiction over non-Indian crimes on the reservation. Congress
may grant leases and rights of way and even dispose of tribal property with-

246
 Notes to Pages 66-81

out tribal consent, and may regulate, modify, or abrogate tribal hunting and
fishing rights, although this is rarely done. See Felix S. Cohen, Handbook of
Federal Indian Law (1982). The help of Jean Ramirez with this analysis is grate­
fully acknowledged.
9. 25 U.S. C. §§ 331-58 (General Allotment Act).
10. 436 U.S., at 54 (1978) (quoting Martinez v. Santa Clara Pueblo, 402 F.
Supp. 5, 15 [D.N.M. 1975]).
1 1 . The issue has also arisen in Canada. See Attorney-General of Canada
v. Lavell, 38 D.L.R. 3d 481 (Can. 1973). Under the Indian Act, Can. Rev. Stat.
ch. 1-6 (1970) § 12 (1)(b), Native women lose Indian status if they marry non­
Indian men, while Native men do not if they marry non-Indian women. Fur­
ther, section 11 (1)(f) confers Indian status upon non-Indian women who
l marry Indian men. Evidence exists that these discriminatory provisions are
l not indigenous to native peoples in Canada, some of whom had matrilineal
traditions prior to contact, like some tribes in what is now the United States.
Native Women's Association of Canada, "Statement by Native Women's As­
sociation of Canada on Native Women's Rights," in Women and the Constitution
in Canada (Audrey Doerr and Micheline Carrier eds. 1981) 66-67. See Jennifer
K. Bankier, "Equality, Affirmative Action, and the Charter: Reconciling 'In­
consistent' Sections" 1 Canadian Journal of Women and Law 134,150 (1985).

5. On Exceptionality

1. Oliver Wendell Holmes, The Common Law 5 (Mark D. Howe ed. 1881;
1963 edition).
2. Dothard v. Rawlinson, 433 U.S. 321, 335, 336 (1977).
3. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).
4. Virginia Woolf, Three Guineas 80 (1938; 1966 Harbinger edition).
5. "Introduction," note 18.

6. A Rally against Rape

1. For whites and Blacks, the National Commission on the Causes and
Prevention of Violence finds that 90 percent of rapes are intraracial. Final
Report of the National Commission on the Causes and Prevention of Violence 210
(1969). Menachim Amir, Forcible Rape 44 (1971), finds 95 percent. See also
Diana E. H. Russell, Sexual Exploitation 90-93 (1984).
2. The rapist is a stranger in 55 percent of all rapes and attempted rapes
reported to the police, but in only 17 percent of all incidents. Of actual rapes
and attempts, 26 percent are by acquaintances, 18 percent by dates, 5 percent
by boyfriends, 3 percent by family friends, 8 percent by authority figures, 9
percent by lovers or ex-lovers, 9 percent by friends of the victim, 5 percent
by relatives (not husbands). Russell, note 1 above, at 96-97. Of all women
who have ever been married, 14 percent report being raped by their hus­
bands. Of all reported rapes in the Russell study, 38 percent were marital, as

247
Notes to Pages 81-94

were 10 percent of the rapists. Diana E. H. Russell, Rape in Marriage 66-67

(1982).
3. One study shows the rates for Black women are 50 percent, or one in
two; for white women, 12 percent, or one in eight in a study in which the
overall percentage probability of rape is found to be vastly lower than it is
now known to be. Amir, note 1 above, at table 3.7.
4. This statement of reasons comes from my own work and from Linda
Belden, "Why Women Do Not Report Sexual Assault," City of Portland Pub­
lic Service Employment Program, Portland Women's Crisis Line, Portland,
Ore . , March 1979.

7. Sex and Violence

1 . Gerald D. Robin, "Forcible Rape: Institutionalized Sexism in the Crim­

inal Justice System," Crime and Delinquency (April 1977) 136-53. "Forcible rape
is unique among crimes in the manner in which its victims are dealt with by
the criminal justice system. Raped women are subjected to an institutional­
ized sexism that begins with the treatment by the police, continues through
a male-dominated criminal justice system influenced by pseudo-scientific no­
tions of victim precipitation, and ends with the systematic acquittal of many
de facto rapists." Lorenne M. G. Clark and Debra Lewis, Rape: The Price of
Coercive Sexuality 57 (1977).
2. Examples are particularly clear in England, Canada, and California.
Director of Public Prosecutions v. Morgan, 241 1 E.R.H.L. 347 (1975); Pappa­
john v. The Queen, 11 D.L.R. 3d 1 (1980); People v. Mayberry, 15 Cal. 3d
143, 542 P. 2d 1337 (1975). But cf. People v. Barnes, 228 Cal. Rptr. 228 (Cal.
1986).
3. Jacobellis v. Ohio, 378 U. S. 184, 197 (1964) (Stewart, J., concurring).
4. R. Emerson Dobash and Russell Dobash, Violence against Wives (1979)
at 14-21.
5. Susan Brownmiller, Against Our Will: Men, Women and Rape (1975).

8. Privacy v. Equality

1. Roe v. Wade, 410 U.S. 113 (1973).

2. Harris v. McRae, 448 U.S. 297 (1980). This is not to support the Harris
ruling or to propose individual hearings to determine coercion prior to allow­
ing abortions. Nor is it to criticize Justice Blackmun, author of the majority
opinion in Roe, who undoubtedly saw legalizing abortion as a way to help
women out of a desperate situation, which it has done.
3. D. H. Regan, "Rewriting Roe v. Wade, " 77 Michigan Law Review 1569
(1979), in which the Good Samaritan happens upon the fetus.
4. As of 1973, ten states that had made abortion a crime had exceptions
for rape and incest; at least three had exceptions for rape only. Many of these
exceptions were based on Model Penal Code § 230.3 (Proposed Official Draft
1962), quoted in Doe v. Bolton, 410 U.S. 179, 205-07, App. B (1973), permit-

248
 Notes to Pages 94-102

ting abortion, inter alia, in cases of "rape, incest, or other felonious inter­
course." References to states with incest and rape exceptions can be found in
Roe v. Wade, 410 U.S. 113 n.37 (1973). Some versions of the Hyde Amend­
ment, which prohibits use of public money to fund abortions, have contained
exceptions for cases of rape or incest. All require immediate reporting of the
incident.
5. Kristin Luker, Taking Chances: Abortion and the Decision Not to Contracept
(1976).
6. Roe v. Wade, 410 U.S. 113 (1973).
7. Griswold v. Connecticut, 381 U.S. 479 (1965).
8. Eisenstadt v. Baird, 405 U.S. 438 (1972).
9. Harris v. McRae, 448 U.S. 297 (1980).
10. T. Gerety, "Redefining Privacy," 12 Harvard Civil Rights-Civil Liberties
Law Review 233, 236 (1977).
1 1 . Kenneth I. Karst, "The Freedom of Intimate Association," 89 Yale Law
Journal 624 (1980); "Developments-The Family," 93 Harvard Law Review 1157
(1980); Doe v. Commonwealth Atty, 403 F. Supp. 1 199 (E.D. Va. 1975), aff'd
without opinion, 425 U.S. 901 (1976), but cf. People v. Onofre, 51 N.Y.2d 476
(1980), cert. denied 451 U.S. 987 (1981). The issue was finally decided, for the
time, in Bowers v. Hardwick, 106 S. Ct. 2841 (1986) (statute criminalizing
consensual sodomy does not violate right to privacy).
12. Tom Grey, "Eros, Civilization and the Burger Court," 43 Law and Con­
temporary Problems 83 (1980).
13. Susan Sontag, "The Third World of Women," 40 Partisan Review 188
(1973).
14. See Adrienne Rich, Of Woman Born: Motherhood as Experience and Insti­
tution chap. 3 (1977), esp. 47, 48: "The child that I carry for nine months can
be defined neither as me or as not-me" (emphasis in the original).
15. Kristin Booth Glen, "Abortion in the Courts: A Lay Woman's Historical
Guide to the New Disaster Area," 4 Feminist Studies 1 (1978).
16. Judith Jarvis Thomson, "A Defense of Abortion," 1 Philosophy and Public
Affairs 47 (1971) .
17. Andrea Dworkin, Right Wing Women (1983). You must read this book.
See also Friedrich Engels arguing on removing private housekeeping into
social industry, Origin of the Family, Private Property and the State (1884).
18. H. L. v. Matheson, 450 U.S. 398 (1981); Bellotti v. Baird, 443 U.S. 622
(1979); but cf. Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52 (1976). See also "Introduction," note 1 .
19. See Dworkin, note 1 7 above, at 98-99.
20. S. Warren and L. Brandeis, "The Right to Privacy," 4 Harvard Law Re­
view 190, 205 (1890); but note that the right of privacy under some state con­
stitutions has been held to include funding for abortions: Committee to De­
fend Reproductive Rights v. Meyers, 29 Cal. 3d 252 (1981); Moe v. Secretary
of Admin. and Finance, 417 N.E.2d 387 (Mass. 1981).
21. As Andrea Dworkin once said to me, women may identify with the
fetus not only because what happens to it, happens to them, but also be-

249
Notes to Page 102

cause, like them, it is powerless and invisible. The vicissitudes of abortion

law and policy have vividly expressed that commonality while purporting to
relieve it. The discussion in this speech is a beginning attempt to recast the
abortion issue toward a new legal approach and political strategy: sex
equality.
Examination of the legal record in these two cases reveals little attempt,
other than in one amicus brief, to argue that state action against abortions is
a practice of sex discrimination. The original complaint in Roe v. Wade con­
tained a cause of action for denial of equal protection of the laws, First
Amended Complaint CA-3-3690-B (N.D. Tex., Apr. 22, 1970) IV, 5. But the
inequality complained of did not, as it developed, refer to inequality on the
basis of sex, and oral argument in the district court appears to have been
confined largely to the right to privacy. "Aside from their Ninth Amendment
and vagueness arguments, plaintiffs have presented an array of constitu­
tional arguments. However, as plaintiffs conceded in oral argument, these
additional arguments are peripheral to the main issues. Consequently, they will
not be passed upon." Opinion of the District Court, Civil Action No. CA-3-
3690-B and 3-3691-C (June 17, 1970) 116 n.7 (emphasis added). In the U.S.
Supreme Court, the Center for Constitutional Rights filed an amicus brief
arguing that criminal abortion statutes like those of Texas and Georgia "vio­
late the most basic co·nstitutional rights of women." "[It] is the woman who
bears the disproportionate share of the de jure and de facto burdens and
penalties of pregnancy, child birth and child rearing. Thus, any statute which
denies a woman the right to determine whether she will bear those burdens
denies her the equal protection of the laws." Brief Amicus Curiae on behalf of
New Women Lawyers, Women's Health and Abortion Project, Inc., National
Abortion Action Coalition 6 (Aug. 2, 1971). However, the brief assumes that
sex is equal and voluntary, even if preganancy is not: "Man and woman have
equal responsibility for the act of sexual intercourse. Should the woman ac­
cidentally become pregnant, against her will, however, she endures in many
instances the entire burden or 'punishment."' Id. at 26. "And it is not suffi­
cient to say that the woman 'chose' to have sexual intercourse, for she did
not choose to become pregnant." Id. at 31.
A brief to the Supreme Court for Planned Parenthood by Harriet Pilpel,
now general counsel for the American Civil Liberties Union, argued amicus
curiae that the same privacy that protected the possession of pornography in
the home should protect the abortion right. In so doing she suggested that
abortion may, indeed, be an issue of sexuality: "A wide range of private in­
dividual activity in the areas of marriage, the family and sex has thus been
safeguarded against governmental interference. The right to procreate, de­
scribed by this Court as 'one of the basic civil rights of man' led the Court to
invalidate as a violation of equal protection an Oklahoma statute which im­
posed sterilization upon persons convicted two or more times of larceny but
not upon similarly situated persons convicted of embezzlement . . . Simi­
larly, the right to marry, the right to direct the education of one's children,
the right to have possession of pornography in the privacy of one's own

250
 Notes to Pages 102-106

home, have all been held to be fundamental rights under the Constitution."
Brief for Planned Parenthood Federation of America, Inc. and American As­
sociation of Planned Parenthood Physicians as Amici Curiae, Sept. 15, 1972,
at 33. Other vigorous briefs argued that the criminal abortion statutes dis­
criminated against poor and nonwhite women-never women, period. In a
brief of Women for the Unborn et al. in support of opponents of the abortion
right, the unborn are argued to be a class deserving of equal protection.
Thus, proponents of the abortion right failed to make an equality claim for
women-other than the lone amicus brief which argued women's rights and
equal protection but based it on gender not sexual inequality-while oppo­
nents of the abortion right made equality claims for the fetuses the women
were carrying.
The complaint in Harris v. McRae alleged discrimination "based on pov­
erty, race and minority status, which deprives and punishes the plaintiff class
of women in violation of due process and equal protection of the law." Plain­
tiffs' and Proposed Intervenors' Amended Complaint, McRae v. Califano, 74
Civ. 1804 (JFD) Jan. 5, 1977, para. 74. No discrimination on the basis of sex.
Only one brief argues sex discrimination, and that is not to make the legal
argument that not paying for abortions, a state act that hurts only women, is
sex discrimination. It is to argue that since women are socially discriminated
against on the basis of sex, denying them abortions is an additional hardship:
"The plight of indigent women denied medically necessary abortions is ex­
acerbated by the pervasive sex discrimination that impacts especially hard on
women in poverty." Brief Amici Curiae for NOW et al. , No. 79-1268 (U.S.
Supreme Court, filed Mar. 18, 1980) 44.
As a whole, virtually every kind of social discrimination against women
other than sexual, and every illegal discrimination against women other than
gender, has been used to try to support the abortion right. With the partial
exception of the CCR brief-an effort both made audacious and weakened
by the fact that sex discrimination as a constitutional doctrine had just been
recognized-burdens on abortion have never been legally argued as simple
sex discrimination.

9. Sexual Harassment

1 . The first case to hold this was Williams v. Saxbe, 413 F. Supp. 654 (D.
D.C. 1976), followed by Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).
2. Alexander v. Yale University, 459 F. Supp. 1 (D. Conn. 1977), aff'd, 631
F.2d 178 (2d Cir. 1980).
3. Rabidue v. Osceola Refining, 584 F. Supp. 419, 427 n.29 (E.D. Mich.
1984).
4. See data at "Rally against Rape," notes 1-3.
5. U.S. Merit System Protection Board, Sexual Harassment in the Federal
Workplace: Is It a Problem? (1981).
6. National Advisory Council on Women's Education Programs, Depart­
ment of Education, Sexual Harassment: A Report on the Sexual Harassment of

251
Notes to Pages 106-109

Students (1980); Joseph DiNunzio and Christina Spaulding, Radcliffe Union

of Students, Sexual Harassment Survey (Harvard/Radcliffe) 20-29 (1984): 32 per­
cent of tenured female faculty, 49 percent of nontenured female faculty, 42
percent of female graduate students, and 34 percent of female undergraduate
students report some incident of sexual harassment from a person with au­
thority over them; one-fifth of undergraduate women report being forced
into unwanted sexual activity at some point in their lives. The Sexual Harass­
ment Survey Committee, A Survey of Sexual Harassment at UCLA (185), finds
1 1 percent of female faculty (N = 86), 7 percent of female staff (N = 650),
and 7 percent of female students (N = 933) report being sexually harassed
at UCLA.
7. If a superior sexually harasses a subordinate, the company and the
supervisor are responsible if the victim can prove it happened. 29 C.F.R.
1604 . ll(c). With coworkers, if the employer can be shown to have known
about it or should have known about it, the employer can be held respon­
sible. 29 C.P.R. 1604.ll(d). Sexual harassment by clients or other third parties
is decided on the specific facts. See 29 C.F.R. 1604. 1 1 (e).
8. The EEOC's requirement that the employer must receive notice in co­
worker cases suggests that they do not understand this point. 29 C.F.R.
1604.ll(d). One reasonable rationale for such a rule, however, is that a co­
worker situation does not become hierarchical, hence actionable as employ­
ment discrimination, until it is reported to the workplace hierarchy and con­
doned through adverse action or inaction.
In one inferior-to-superior case, staff was alleged to have sexually harassed
a woman manager because of an interracial relationship. Moffett v. Gene B.
Glick Co. , Inc., 621 F. Supp. 244 (D. Ind. 1985) . An example of a third-party
case that failed of "positive proof" involved a nurse bringing a sex discrimi­
nation claim alleging she was denied a promotion that went to a less qualified
female nurse because that other nurse had a sexual relationship with the
doctor who promoted her. King v. Palmer, 598 F. Supp. 65, 69 (D. D.C. 1984) .
The difficulty of proving "an explicit sexual relationship between [plaintiff]
and [defendant], each of whom vigorously deny it exists or even occurred,"
id., is obvious.
9. Catharine A. MacKinnon, Sexual Harassment of Vvorking Women 203
(1979).
10. Dissenters from the denial of rehearing en bane in Vinson v. Taylor
attempted a revival, however. Vinson v. Taylor, 760 F.2d 1330, 1333 n.7 (Circuit
Judges Bork, Scalia, and Starr).
1 1 . Scott v. Sears & Roebuck, 605 F. Supp. 1047, 1051, 1055 (N.D. Ill. 1985).
12. Coley v. Consolidated Rail, 561 F. Supp. 647, 648 (1982).
13. Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986); Horn v.
Duke Homes, 755 F.2d 599 (7th Cir. 1985); Crimm v. Missouri Pacific R.R.
Co. , 750 F.2d 703 (8th Cir. 1984); Simmons v. Lyons, 746 F.2d 265 (5th Cir.
1984); Craig v. Y & Y Snacks, 721 F.2d 77 (3d Cir. 1983); Katz v. Dole, 709
F.2d 251 (4th Cir. 1983); Miller v. Bank of America, 600 F.2d 211 (9th Cir.
1979); Tomkins v. Public Service Electric & Gas Co. , 568 F.2d 1044 (3d Cir.
1977); Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977); Bundy v. Jackson, 641

252
 Notes to Page 109

F.2d 934 (D.C. Cir. 1981); Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982) (sexual harassment, whether quid pro quo or condition of work, is sex
discrimination under Title VII). The court in Rabidue was particularly explicit
on the rootedness of sexual harassment in the text of Title VII. Rabidue v.
Osceola Refining, 584 F. Supp. 419, 427-29 (E.D. Mich. 1984). Woerner v.
Brzeczek, 519 F. Supp. 517 (E.D. Ill . 1981) exemplifies the same view under
the equal protection clause. Gender has also been found to create a class for
a 42 U.S. C. § 1985(3) claim if the injury is covered by the Fourteenth Amend­
ment. Scott v. City of Overland Park, 595 F. Supp. 520, 527-529 (D. Kansas
1984). See also Skadegaard v. Farrell, 578 F. Supp. 1209 (D.N.J. 1984). An
additional question has been whether sexual harassment is intentional dis­
crimination. Courts have been unimpressed with intent-related defenses like,
he did it but "it was his way of communicating." French v. Mead Corpora­
tion, 333 FEP Cases 635, 638 (1983). Or, I did all of those things, but I am just
a touchy person. Professor Sid Peck, in connection with the sexual harass­
ment action brought against him by Ximena Bunster and other women at
Clark University, reportedly stated that he exchanged embraces and kisses as
greetings and to establish a feeling of safety and equality. Worcester Magazine,
Dec. 3, 1980, at 3; Boston Phoenix, Feb. 24, 1981, at 6. But see Norton v. Var­
tanian, where Judge Zobel finds, inter alia, that the overtures were never
sexually intended, so no sexual harassment occurred. 31 FEP Cases 1260 (D.
Mass. 1983). The implicit view, I guess, is that the perpetrator's intent is be­
side the point of the harm, that so long as the allegations meet other require­
ments, the perpetrator does not need to intend that the sexual advances be
discriminatory or even sex-based for them to constitute sex discrimination.
Katz v. Dole holds that a showing of "sustained verbal sexual abuse" is suf­
ficient to prove "the intentional nature of the harassment." 709 F. 2d, 255-56
esp. 256 n.7. As I understand it, this means that so long as the harassment
is not credibly inadvertent, acts of this nature are facially discriminatory. In­
tentionality is inferred from the acts; the acts themselves, repeated after in­
dications of disinclination and nonreceptivity, show the mental animus of
bias. In short, the acts may not be intentionally discriminatory, yet still con­
stitute intentional discrimination. The upshot seems to be that sexual harass­
ment allegations are essentially treated as facial discrimination.
14. Zabkowicz v. West Bend Co., 589 F. Supp. 780, 782-83 (E.D. Wise.
1984).
15. 589 F. Supp. , 784.
16. Henson v. City of Dundee, 29 FEP Cases 787, 793 (11th Cir. 1983). In
Huebschen v. Dept. of Health, 32 FEP Cases 1582 (7th Cir. 1983), the facts
were found not gender-based on a doctrinally dubious rationale. There a man
was found to have been sexually harassed by his female superior. This result
was reversed on the partial basis that it did not present a valid gender claim.
Basically the court said that the case wasn't gender-based because it was in­
dividual. I remember this argument: the events were individual, not gender­
based, because there was no employment problem until the relationship
went sour. In my view, if the defendant is a hierarchical superior and the

253
Notes to Pages 109-112

plaintiff is damaged in employment for reasons of sexual pressure vis a vis

that superior, especially if they are a woman and a man, a claim is stated. It
is one thing to recognize that men as a gender have more power in sexual
relations in ways that may cross-cut employment hierarchies. This is not
what the court said here. This case may have been, on its facts, a personal
relationship that went bad, having nothing to do with gender. But these are
not the facts as found at trial. The Court of Appeals did suggest that this
plaintiff was hurt as an individual, not as a man, because the employment
situation was fine so long as the sexual situation was fine-that is, until it
wasn't. After which, because of which, the man was fired. Maybe men al­
ways stay individuals, even when women retaliate against them through
their jobs for sexual refusals. But, doctrinally, I do not understand why this
treatment does not state a gender-based claim. Not to, seems to allow em­
ployment opportunities to be conditional on the continuing existence of an
undesired sexual relationship, where those opportunities would never be al­
lowed to be conditioned on such a relationship's initial existence. Women
have at times been gender female personally: "As Walter Scott acknowledges,
he 'was attracted to her as a woman, on a personal basis. Her femaleness
was a matter of attraction."' Estate of Scott v. deLeon, 37 FEP Cases 563, 566
(1985).
17. Barnes v . Castle is the classic case. All of the cases in note 13 above are
quid pro cases except Vinson, Katz, Bundy, and Henson. Note that the distinc­
tion is actually two poles of a continuum. A constructive discharge, in which
a woman leaves the job because of a constant condition of sexual harassment,
is an environmental situation that becomes quid pro quo.
18. In Vinson v. Taylor, 23 FEP Cases 37 (D.D.C. 1980), plaintiff accused
defendant supervisor of forced sex; the trial court found, "If the plaintiff and
Taylor did engage in an intimate or sexual relationship . . . [it] was a volun­
tary one by plaintiff." At 42. Vinson won a right to a new trial for environ­
mental sexual harassment. Meritor Savings Bank, FSB v. Vinson, 106 S. Ct.
2399 (1986). See also Cummings v. Walsh Construction Co., 561 F. Supp. 872
(S.D. Ga. 1983) (victim accused perpetrator of consummated sex); Micari v.
Mann, 481 N. Y.S.2d 967 (Sup. Ct. 1984) (students accused professor of forced
sex as part of acting training; won and awarded damages).
19. Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985), aff'd 106 S. Ct. 2399
(1983).
20. Micari v. Mann, 481 N.Y.S.2d 967 (Sup. Ct. 1984).
21 . Cummings v. Walsh Construction Co., 31 FEP Cases 930, 938 (S. D.
Ga. 1983).
22. Bundy and Henson, note 13 above, establish environmental sexual
harassment as a legal claim. Both that claim and the plaintiff's credibility in
asserting it, since she was abused for such a long time, were raised in Vinson
v. Taylor before the U.S. Supreme Court.
23. Huebschen v. Department of Health, 547 F. Supp. 1168 (W.D. Wise.
1982).
24. Heelan v. Johns-Manville, 451 F. Supp. 1382 (D. Colo. 1978). See also
Sensibello v. Globe Security Systems, 34 FEP Cases 1357 (E. D. Pa. 1964).

254
 Notes to Pages 112-115

25. Katz v. Dole, 709 F.2d 251, 254 n.3 (4th Cir. 1983) ("A person's private
and consensual sexual activities do not constitute a waiver of his or her legal
protections against unwelcome and unsolicited sexual harassment").
26. An attorney discussed this case with me in a confidential conversation.
27. Gan v. Kepro Circuit Systems, 28 PEP Cases 639, 641 (E. D. Mo. 1982).
See also Reichman v. Bureau of Affirmative Action, 536 F. Supp. 1149, 1177
(M.D. Penn. 1982).
28. Morgan v. Hertz Corp., 542 F. Supp. 123, 128 (W.O. Tenn. 1981) .
29. EEOC v . Sage Realty, 507 F. Supp. 599 (S.D.N.Y. 1981).
30. Pryor v. U.S. Gypsum Co., 585 F. Supp. 311, 316 n.3 (W.O. Mo. 1984).
The issue here was whether the injuries could be brought under worker's
compensation. The suggestion is that women who work in adult entertain­
ment might be covered under that law for sexual harassment on their jobs.
31. EEOC Decision 82-13, 29 FEP Cases 1855 (1982).
32. Commission Decision 83-1, EEOC Decisions (CCH) 6834 (1983).
33. Koster v. Chase Manhattan, 93 F. R.D. 471 (S.D.N.Y. 1982).
34. Priest v. Rotary, 32 FEP Cases 1065 (N.D. Cal. 1983) is consistent with
congressional actions in criminal rape, Fed. R. Evid., Rule 412, 124 Cong. Rec.
Hll944-1 1945 (daily ed. Oct. 10, 1978) and 124 Cong. Rec. S18580 (daily ed.
Oct. 12, 1978) (evidence of prior consensual sex, unless with defendant, is
inadmissible in rape cases) and with developments in civil rape cases. Fults
v. Superior Court, 88 Cal. App. 3d 899 (1979).
35. Vinson v. Superior Court, Calif. Sup. SF 24932 (rev. granted, Sept.
1985).
36. A further possibility-more political fantasy than practical-might be
to insist that if the plaintiff's entire sexual history is open to inspection, the
defendant's should be also: all the rapes, peeping at his sister, patronizing of
prostitutes, locker-room jokes, use of pornography, masturbation fantasies,
adolescent experimentation with boyfriends, fetishes, and so on.
37. See, e.g. , U.S. v. Kasto, 584 F.2d 268, 271-72 (8th Cir. 1978), cert. denied,
440 U.S. 930 (1979); State v. Bernier, 491 A.2d 1000, 1004 (R.I. 1985).
38. Another reason women do not bring claims is fear of countersuit. The
relationship between sexual harassment and defamation is currently unset­
tled on many fronts. See, e.g., Walker v. Gibson, 604 F. Supp. 916 (N.D. Ill.
1985) (action for violation of First Amendment will not lie against employer
Army for hearing on unwarranted sexual harassment charge); Spisak v.
McDole, 472 N.E.2d 347 (Ohio 1984) (defamation claim can be added to sex­
ual harassment claim); Equal Employment Opportunity Commission v. Levi
Strauss & Co., 515 F. Supp. 640 (N.D. Ill . 1981) (defamation action brought
allegedly in response to employee allegation of sexual harassment is not nec­
essarily retaliatory, if brought in good faith to vindicate reputation); Arenas
v. Ladish Co., 619 F. Supp. 1304 (E. D. Wise. 1985) (defamation claim may be
brought for sexual harassment in the presence of others, not barred by exclu­
sivity provision of worker's compensation law); Ross v. Comsat, 34 FEP
Cases 261 (D. Md. 1984) (man sues company for retaliation in discharge fol­
lowing his complaint against woman at company for sexual harassment).

255
Notes to Pages 115-123

Educational institutions have been sued for acting when, after investigation,
they find the complaints to be true. Barnes v. Oody, 28 FEP Cases 816 (E. D.
Tenn. 1981) (summary judgment granted that arbitrators' holding for women
who brought sexual harassment claim collaterally estops defamation action
by sexual harassment defendant; immunity applies to statements in official
investigation). Although it is much more difficult to prove defamation than
to defeat a sexual harassment claim, threats of countersuit have intimidated
many victims.
39. Rabidue v. Osceola Refining, 584 F. Supp. 423 (E.D. Mich. 1984).
40. Cobb v. Dufresne-Henry, 603 F. Supp. 1048, 1050 (D. Vt. 1985).
41. McNabb v. Cub Foods, 352 N.W. 2d 378, 381 (Minn. 1984).
42. Morgan v. Hertz Corp., 27 FEP Cases at 994.
43. Seratis v. Lane, 30 FEP 423, 425 (Cal. Super. 1980).
44. Rabidue v. Osceola Refining, 584 F. Supp. 419, 435 (E.D. Mich. 1984).
This went to whether the treatment was sex-based. Note that the plaintiff did
not say that she was offended but that she was discriminated against.
45. Women students at MIT filed a sexual harassment claim under Title IX,
which was dismissed for lack of jurisdiction. Baker v. M.I.T., U.S. Dept. Edu­
cation Office of Civil Rights #01-85-2013 (Sept. 20, 1985).
46. Particularly given the formative contribution to the women's move­
ment of the struggles against racial and religious stigma, persecution, and
violence, it is heartening to find a Jewish man and a Black man recovering
for religious and racial harassment, respectively, based on sexual harassment
precedents. Weiss v. U. S., 595 F. Supp. 1050 (E. D. Va. 1984) (pattern of anti­
Semitic verbal abuse actionable based on Kntz and Henson); Taylor v. Jones,
653 F.2d 1 193, 1199 (8th Cir. 1981) (Bundy cited as basis for actionability of
environmental racial harassment under Title VII).

10. Women, Self-Possession, and Sport

1. The attempt of a male athletic association to take over a women's ath­

letics association is documented in the women's unsuccessful antitrust ac­
tion, Association for Intercollegiate Athletics for Women v. National Colle­
giate Athletics Association, 558 F. Supp. 487 (D. D.C. 1983), aff'd 735 F.2d 577
(D.C. Cir. 1984). Playboy has begun sexualizing athletic women.
2. As to the law of this issue, American courts have not often considered
the legality of institutions or programs that disadvantaged groups such as
women have organized to promote their equality, such as separate sex ath­
letic teams or organizations. Existing law on single-sex institutions is domi­
nated by members of advantaged groups seeking the further advantage of
access to the few resources previously available exclusively to disadvantaged
groups. For instance, the U.S. Supreme Court found sex discrimination in
the exclusion of a man from a public all-women's nursing school. Mississippi
University for Women v. Hogan, 458 U.S. 718, 725 (1982). However, it was
important that no institution of comparable convenience and quality existed
at which the plaintiff could study.

256
 Notes to Page 123

Separate associations, activities, or programs of or for the disadvantaged

have sometimes been permitted when equal treatment is thereby promoted
by compensating for disadvantages. Mississippi University for Women v.
Hogan, 458 U.S. 718, 730 n.16; Califano v. Webster, 430 U.S. 313, 318-20
(1977) (per curiam); Schlesinger v. Ballard, 419 U.S. 498, 508 (1975); see also
Orr v. Orr, 440 U.S. 268, 283 (1979). Scholars have found the compensatory
rationale even more appropriate when applied to women's membership or­
ganizations that seek sex equality than when applied to economic benefits,
C. Feldblum, N. Krent, and V. Watkin, "Legal Challenges to All-Female
Organizations," 21 Harvard Civil Rights-Civil Liberties Law Review 171, 215
(Winter, 1986). It would seem that where a women's organization with sex
equality goals is a power base and leadership laboratory, is activist or service­
oriented or a support system rather than a ghetto, such an organization may
be seen to counteract and undermine the inferiority of women that compul­
sory sex segregation is based upon.
In a context in which women are socially unequal to men, all-women affil­
iations and activities are often not seen to run the same risks of perpetuating
sex inequality that all-male affiliations can. The area of athletics provides ex­
amples of all-women groupings seen to further equality goals. By federal and
constitutional law, teams for girls must be provided or girls must be given
opportunities to compete in athletics programs formerly for boys, with some
modifications for contact sports. The Title IX guidelines permit separate-sex
teams where "athletic opportunities for members of that sex have previously
been limited." 45 C.F.R. 86.41. See Yellow Springs Exempted Village School
District Board of Education v. Ohio High School Athletic Association, 647
F.2d 651 (6th Cir. 1981); Leffel v. Wisconsin Interscholastic Athletic Associa­
tion, 444 F. Supp. 1117 (D. Wise. 1978). Women-only sports have been pre­
served against sex equality attacks both by exceptional girls seeking to com­
pete on boys' teams when girls' teams were available, O'Connor v. Board of
Education of School District 23, 545 F. Supp 376 (N.D. Ill. 1982) and by boys
seeking to compete on girls' teams when boys' teams were not available.
Petrie v. Illinois High School Association, 394 N.E.2d 855 (Ill. App. 1979).
But cf. Darrin v. Gould, 85 Wash. 2d 859, 540 P.2d 882 (Wash. 1975).
In this context, courts have concluded that women-only teams are consist­
ent with the sex-equality goal of precluding "a male dominance" of a sport.
394 N.E.2d 857; Ritacco v. Norwin School District, 361 F. Supp. 931 (D. Pa.
1973). "Overall" equality considerations for all girls often justify such results.
Forte v. Board of Education, North Babylon Union Free School District, 431
N.Y.S. 2d 321 (Sup. 1980); Hoover v. Meiklejohn, 430 F. Supp. 164 (D. Colo.
1979), even in individual cases of boys who have no comparable opportuni­
ties. Mularadelis v. Haldane Central School Board, 427 N.Y.S. 2d 458 (Sup.
Ct. 1980). The Ninth Circuit Court of Appeals has similarly held that a boy
who was denied admission to a girls' volleyball team was not discriminated
against on grounds of sex because girls-only sports further the social interest
in sex equality, an interest which admitting boys to the girls' team would
undermine. Clark v. Arizona Interscholastic Association, 695 F.2d 1126 (9th

257
Notes to Pages 123-135

Cir. 1982), cert. denied, 464 U. S. 818 (1983). Even though there was no boys'
volleyball team, girls were seen to retain their equality interest in the single­
sex team in the absence of a symmetry of opportunity for boys.

11. Linda's Life and Andrea's Work

1 . See, e.g., Henry Krystal, ed., Massive Psychic Trauma 28 (1968). In that
collection, Dr. Niederland described survivors of the Nazi concentration
camps: "Most had to deny the reality of their condition ("it cannot be true")
. . . all feelings ceased to be, on the surface, because one could not exist and
at the same time live with such feelings of abhorrence, disgust, and terror.
Simultaneous with the isolation of affects, there was an automatization of the
ego which produced a robotlike numbness, giving the inmates a sordid­
looking, emaciated, puppetlike appearance." Id. at 67 (discussing Robert Lif­
ton's concept of "psychological closure," observed in survivors of Hiro­
shima). It is striking that Dr. Niederland distinguishes this denial "from what
we see in civilian life," id., yet Dr. Krystal introduces the volume as follows:
"It is hoped that the study of these aftereffects and problems may help us to
understand, treat, and prevent traumatization in the milieu where it occurs
most commonly: the home." Id. at 7. See also Sydney S. Furst, ed., Psychic
Trauma (1967).
2. "Introduction," note 30.
3. Linda Lovelace and Michael McGrady, Ordeal (1980) .

12. "More Than Simply a Magazine"

1 . This is the subtitle of Playboy Magazine. Of course, it is questionable

that this sexuality is "women's" in the sense that we own or possess it, or
even that it accurately characterizes us. It is, however, the sexuality that is
attributed to women by pornographers. Women, under conditions of sex in­
equality, then may come to exhibit it or even claim and embrace it as their
own.
2. Examples include: Center for Women Policy Studies, Community Ac­
tion for Legal Services (Litigation for Battered Women), Wider Opportunities
for Women, NOW Legal Defense and Education Fund, Women's Action Al­
liance, Working Women United Institute, National Institute for Working
Women, National Women's Political Caucus, National Gay Task Force, ACLU
Women's Rights Project, ERA Strike Force, Federation of Women Lawyers'
Judicial Screening Panel, National Organization for Women (benefit). Some
of these groups have later repudiated, returned, or stopped receiving Play­
boy's money. Some have not.
3. "I would be a feminist whatever I did." Interview by Dave Newhouse
with Christie Hefner, Playboy vice president, 1 Event 38 (Fall 1980); Bella

258
 Notes to Pages 135-139

Stumbo, "Believes Playboy Liberates Women-Hefner on Hefner: 'Real Guy'

Is a Very Moral Man," Los Angeles Times, Dec. 28, 1984, at 1, 17, 18. "I am a
feminist." Hefner quoted in Newsweek, Aug. 4, 1986, at 54.
4. Hugh M. Hefner, "For some few, a photograph of the female figure­
no matter how attractively posed-is embarrassing, objectionable and even
downright sinful. In fact, one sometimes gets the feeling that the more at­
tractively posed-and therefore appealing-the female is, the more objec­
tionable and sinful she becomes to the critical. In order to react in this way,
of course, one must believe that sex itself is objectionable and sinful-espe­
cially as typified by a beautiful woman." Hugh M. Hefner "The Playboy Phi­
losophy," 1 Playboy 41 (Jan. 1963). Notice how "a photograph of the female
figure" and "the female" become equated with "sex itself" in this passage.
Actually, Playboy has very precise object standards for their Bunnies. Play­
boy's evaluation scale for "Bunny Image" is:

1. a flawless beauty (face, figure and grooming)

2. an exceptionally beautiful girl

3. marginal (is aging or has developed a correctible appearance problem)

4. has lost Bunny Image (either through aging or an incorrectible appear­

ance problem)

Weber v. Playboy Club of N.Y., Playboy Clubs International, Inc., Hugh Hef­
ner, App. No. 774, Case No. CSF-22619-70 (Human Rts. App. Bd., N.Y.,
N.Y., Dec. 17, 1971) at 2 (emphasis in original). This was a complaint for sex
discrimination in a discharge occasioned by "loss of Bunny Image." She lost;
the board said "complainant's services were terminated . . . because of her
loss of weight and because she did not meet acceptable standards in reference
to physical proportions," not because of her sex.
5. Miller v. California, 413 U.S. 15, 24 (1973).
6. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973).
7. Penthouse International v. McAuliffe, 610 F.2d 1353, 1362-73 (5th Cir.
1980). Perhaps it is this feature of Playboy that caused Justice Marshall to label
it a "pretentious girlie magazine." California v. LaRue, 409 U.S. 109, 127-28
(1972).
8. "To encourage new research, the Foundation provides funds to Profes­
sor Edward Donnerstein of the University of Wisconsin to complete his work
on the possible relationships between violent pornography and violence
against women." The Playboy Foundation (pamphlet, n.d., at 6). Professor
Donnerstein told me he did not apply for the funding but resisted an impulse
to return it, on the view that refusing it would call into question the neutrality
of his research.
9. Hugh M. Hefner, "The Playboy Philosophy" pt. II, Playboy, February
1963, at 41. Note how "passive" is supposed to be the antithesis of "brutal­
ity." See also Peter Bogdanovich's account of Hugh Hefner forcing sex on

259
Notes to Pages 139-141

Dorothy Stratten, Playmate of the Year in 1980, murdered by her pimp hus­
band the same year. Bogdanovich, The Killing of the Unicorn: Dorothy Stratten,
1 960-1980 (1984). Hefner has denied this charge.
10. One woman who worked inside Playboy for ten years stated, "I want
the public to recognize that Playboy magazine is not the coffee table literature
that Hugh Hefner says it is, but rather a pornographic magazine." She de­
tailed "the detrimental effects" Playboy had on the lives of the women she
supervised as director of Playmate Promotions: "alienation from family,
friends and religious practices, sexual exploitation and harassment, job dis­
crimination, rape, mental-date rape, too, by the way-mental and physical
abuse, murder and attempted murder, illegal drug abuse, attempted suicide,
prostitution, unwanted pregnancies, abortions, venereal diseases, unneces­
sary cosmetic surgery." Miki Garcia, Hearings of the National Commission
on Pornography 116 (Los Angeles, Oct. 17, 1985). Penthouse and Hustler, with
which Playboy competes, tend to be more, and increasingly, violent. Neil Mal­
amuth and Barry Spinner, "A Longitudinal Content Analysis of Sexual Vio­
lence in the Best-Selling Erotic Magazines," 17 Journal of Sex Research 226-37
(1981), find significant increases in pictorial violent sex. Playboy will lose its
market if it doesn't get even more overtly violent. This is because it, with the
rest of the pornography market, is creating a population of increasingly de­
sensitized consumers. Explicit sex, after a while, puts men to sleep. It takes
increasingly explicit violation, meaning violence, to wake them up, erotically
speaking.
1 1 . Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., joined by Bran­
deis, J., dissenting).
12. The Weimar Republic, the liberal democracy that preceded the Third
Reich, had a rigorous legal tradition of abstract rights.
13. Letter from six student organizations to Charles Nesson, Feb. 24, 1982,
protested his role as a possible judge in the First Amendment Awards in light
of his otherwise sensitive response to issues of sexism: "Despite its arguably
worthy journalism and fiction, [Playboy] persists through its cartoons, pho­
tographs and philosophy in perpetuating an image of women as sex objects
ultimately subservient to macho masculinity . . . Women here have felt
[their] contempt quite personally when Playboy cartoons insulting 'lady law­
yers' have been anonymously placed in our mailbox." These were also fright­
ening cartoons; one is about raping a lady lawyer. The letter continues, "We
believe that by refusing to take part as a judge you would not be expressing
a judgment on the censorship question, but that by consenting to be a judge
you undoubtedly would be contributing to an impression of the legitimacy
of these proceedings and of Playboy's treatment of women . . . We believe
that far from being a worthy cause and a genuine statement of our First
Amendment freedom, [the ceremony] is merely an attempt by Playboy to
bolster its sagging image and justify its existence."
14. Information from contemporaneous discussions with students and
"Nesson Resigns from Playboy Panel," Harvard Crimson, Mar. 22, 1982, at 1 :
" I did not owe i t t o anybody t o participate i n an activity that could possibly

260
 Notes to Pages 141-145

lend credence to something I disapprove of-sexism in Playboy magazine."

Playboy lists this professor as a judge of the First Amendment Awards in
1981.
15. The Vitullo kit, prepared by Citizen's Committee for Victim Assistance.
(Chicago). See also The Playboy Foundation, note 8 above, at 9.
16. "Most Playboy Foundation grants are under $10,000.00. The proposal
should highlight a special project that would benefit [sic] a grant of this size."
The Playboy Foundation, note 8 above, at 19.
17. Playboy's revenue is shrinking. I am told by a person at the Ford Foun­
dation that Playboy considers itself in a short-term cash "crunch." They are
divesting themselves of some holdings, some voluntarily, some with regret.
(The regrets apparently include their gambling operations.) Playboy is ap­
parently not in wonderful financial condition at the moment. Newsweek, Aug.
4, 1986, at 54.
18. Grants Oanuary 1968) to the Institute for Reproductive Biology "as­
sisted researchers William Masters and Virginia Johnson in developing a
comprehensive program for the training of health care professionals in treat­
ment of sexual dysfunction." The Playboy Foundation, note 8 above, at 3. "Mas­
ters and Johnson received a total of at least $300,250.00 from Playboy by No­
vember, 1979." Interview by Laura Lederer with M. Bailey, "Questionable
Partnership: Sexologists and the Pornography Industry" OASIS (Organized
against Sexism in Sex) Newsletter of Feminists against Pornography, (Washing­
ton, D.C.) Oan./Feb. 1982).
19. "During the past decade, the pornography industry appears to have
acquired a nearly monopolistic influence over sex information . . . I have
come to strongly suspect that the pornography industry is shaping our na­
tional forums of sex information by its grants-giving programs. I further sus­
pect that such gifts are encouraging sexologists to study certain questions
and ignore others. If this is correct, then what pornographers in effect have
attained is a nearly monopolistic influence over sexology." M. Bailey in Led­
erer, note 18 above.
20. "July 1967: The Foundation provides the first of several major grants
to the Sex Information and Education Council of the United States
(SIECUS)," The Playboy Foundation, note 8 above, at 3. They also funded Dr.
Mary Calderone.
21. "December, 1965: Playboy becomes the first major national magazine
to advocate legal abortion-on the grounds that women have the same rights
as men to control their own bodies." The Playboy Foundation, note 8 above, at
2 (emphasis added).
22. This is a male notion of what abortion involves. See 93-102 above.
23. Fortunately, this was more true in 1982 than it is in 1986. Even in 1982,
legions of feminists at all levels of grassroots organizations were probably
entirely clear about the role of pornography in the victimization of women.
But this is not the same as a self-conscious direct confrontation with the in­
dustry and its hold over sexuality and women, as is now being built, even as
Playboy's money is being widely turned down.

261
Notes to Pages 145 -146

24. Conference on the Discrimination and Harassment of Women in Em­

ployment, Center for Women Policy Studies, July 7-9, 1981.
25. At least some women are paying for it. See, e.g. , Bogdanovich, note 9
above, at 25; Linda Lovelace and Michael McGrady, Ordeal (1980).

13. Not a Moral Issue

Many of the ideas in this essay were developed and refined in close collab­
oration with Andrea Dworkin. It is difficult at times to distinguish the con­
tribution of each of us to a body of work that-through shared teaching,
writing, speaking, organizing, and political action on every level-has been
created together. I have tried to credit specific contributions that I am aware
are distinctly hers. This text is mine; she does not necessarily agree with
everything in it.
1. This speech as a whole is intended to communicate what I mean by
pornography. The key work on the subject is Andrea Dworkin, Pornography:
Men Possessing Women (1981). No definition can convey the meaning of a word
as well as its use in context can. However, what Andrea Dworkin and I mean
by pornography is rather well captured in our legal definition: "Pornography
is the graphic sexually explicit subordination of women, whether in pictures
or in words, that also includes one or more of the following: (i) women are
presented dehumanized as sexual objects, things or commodities; or (ii)
women are presented as sexual objects who enjoy pain or humiliation; or (iii)
women are presented as sexual objects who experience sexual pleasure in
being raped; or (iv) women are presented as sexual objects tied up or cut up
or mutilated or bruised or physically hurt; or (v) women are presented in
postures of sexual submission, servility or display; or (vi) women's body
parts-including but not limited to vaginas, breasts, and buttocks-are ex­
hibited, such that women are reduced to those parts; or (vii) women are pre­
sented as whores by nature; or (viii) women are presented being penetrated
by objects or animals; or (ix) women are presented in scenarios of degrada­
tion, injury, torture, shown as filthy or inferior, bleeding, bruised, or h�;�rt in
a context that makes these conditions sexual." Pornography also includes
"the use of men, children or transsexuals in the place of women." Pornog­
raphy, thus defined, is discrimination on the basis of sex and, as such, a civil
rights violation. This definition is a slightly modified version of the one
passed by the Minneapolis City Council on December 30, 1983. Minneapolis,
Minn. , Ordinance amending tit. 7, chs. 139 and 141, Minneapolis Code of
Ordinances Relating to Civil Rights (Dec. 30, 1983). The ordinance was ve­
toed by the mayor, reintroduced, passed again, and vetoed again in 1984. See
"Francis Biddle's Sister" for subsequent developments.
2. "Congress shall make no law . . . abridging the freedom of speech, or
of the press . . . " U.S. Const. amend. I.
3. Justice Black, at times joined by Justice Douglas, took the position that
the Bill of Rights, including the First Amendment, was "absolute." Hugo
Black, "The Bill of Rights," 35 New York University Law Review 865, 867 (1960);

262
 Notes to Pages 146-147

Edmund Cahn, "Justice Black and First Amendment 'Absolutes': A Public

Interview," 37 New York University Law Review 549 (1962). For a discussion,
see Harry Kalven, "Upon Rereading Mr. Justice Black on the First Amend­
ment," 14 UCLA Law Review 428 (1967). For one exchange in the controversy
surrounding the "absolute" approach to the First Amendment, as opposed
to the "balancing" approach, see, e.g., W. Mendelson, "On the Meaning of
the First Amendment: Absolutes in the Balance," 50 California Law Review 821
(1962); L. Frantz, "The First Amendment in the Balance," 71 Yale Law Journal
1424 (1962); Frantz, "Is the First Amendment Law?-A Reply to Professor
Mendelson," 51 California Law Review 729 (1963); Mendelson, "The First
Amendment and the Judicial Process: A Reply to Mr. Frantz," 17 Vanderbilt
Law Review 479 (1964). In the pornography context, see e.g., Roth v. United
States, 354 U.S. 476, 514 (1957) (Douglas, J., joined by Black, J., dissenting);
Smith v. California, 361 U.S. 147, 155 (1959) (Black, J., concurring); Miller
v. California, 413 U.S. 15, 37 (1973) (Douglas, J., dissenting). The purpose
of this discourse is not to present a critique of absolutism as such, but
rather to identify and criticize some widely and deeply shared implicit beliefs
that underlie both the absolutist view and the more mainstream flexible ap­
proaches.
4. The history of obscenity law can be read as a failed attempt to make
this separation, with the failure becoming ever more apparent from the Re­
drup decision forward. Redrup v. New York, 386 U.S. 767 (1967). For a sum­
mary of cases exemplifying such a trend, see the dissent by Justice Brennan
in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973).
5. Much has been made of the distinction between sex and gender. Sex
is thought the more biological, gender the more social. The relation of sex­
uality to each varies. See, e.g., Robert Stoller, Sex and Gender 9-10 (1974). Since
I think that the importance of biology to the condition of women is the social
meaning attributed to it, biology is its social meaning for purposes of analyz­
ing the inequality of the sexes, a political condition. I therefore tend to use
sex and gender relatively interchangeably.
6. The sense in which I mean women's perspective as different from
men's is like that of Virginia Woolf's reference to "the difference of view, the
difference of standard" in her "George Eliot," 1 Collected Essays 204 (1966).
Neither of us uses the notion of a gender difference to refer to something
biological or natural or transcendental or existential. Perspective parallels
standards because the social experience of gender is confined by gender. See
Catharine A. MacKinnon, Sexual Harassment of Working Women 107-41 (1979),
and the articles mentioned in note 11, below; Virginia Woolf, Three Guineas
(1938); see also Andrea Dworkin, "The Root Cause," in Our Blood: Essays and
Discourses on Sexual Politics 96 (1976). I do not refer to the gender difference
here descriptively, leaving its roots and implications unspecified, so they
could be biological, existential, transcendental, in any sense inherent, or so­
cial but necessary. I mean "point of view" as a view, hence a standard, that
is imposed on women by force of sex inequality, which is a political condi­
tion. "Male," which is an adjective here, is a social and political concept, not

263
Notes to Page 147

a biological attribute; it is a status socially conferred upon a person because

of a condition of birth. As I use "male," it has nothing whatever to do with
inherency, preexistence, nature, inevitability, or body as such. Because it is
in the interest of men to be male in the system we live under (male being
powerful as well as human), they seldom question its rewards or even see it
as a status at all.
7. Criminal Code, Can. Rev. Stat. chap. c-34, § 159(2)(c) and (d) (1970).
People v. Sanger, 222 N.Y. 192, 118 N.E. 637 (1918).
8. The Report of the Commission on Obscenity and Pornography (1970) (major­
ity report). The accuracy of the commission's findings is called into question
by: (1) widespread criticism of the commission's methodology from a variety
of perspectives, e.g. , L. Sunderland, Obscenity-The Court, the Congress and
the President's Commission (1975); Edward Donnerstein, "Pornography Com­
mission Revisited: Aggression-Erotica and Violence against Women," 39
Journal of Personality and Social Psychology 269 (1980); Ann Garry, "Pornogra­
phy and Respect for Women," 4 Social Theory and Practice 395 (Summer 1978);
Irene Diamond, "Pornography and Repression," 5 Signs: A Journal of Women
in Culture and Society 686 (1980); Victor Cline, "Another View: Pornography
Effects, the State of the Art," in Where Do You Draw the Line? (V. B. Cline ed.
1974); Pauline Bart and Margaret Jozsa, "Dirty Books, Dirty Films, and Dirty
Data," in Take Back the Night: Women on Pornography 204 (Laura Lederer ed.
1982); (2) the commission's tendency to minimize the significance of its own
findings, e.g. , those by Donald Mosher on the differential effects of exposure
by gender; and (3) the design of the commission's research. The commission
did not focus on questions about gender, did its best to eliminate "violence"
from its materials (so as not to overlap with the Violence Commission), and
propounded unscientific theories such as Puritan guilt to explain women's
negative responses to the materials.
Further, scientific causality is unnecessary to legally validate an obscenity
regulation: "But, it is argued, there is no scientific data which conclusively
demonstrate that exposure to obscene materials adversely affects men and
women or their society. It is [urged] that, absent such a demonstration, any
kind of state regulation is 'impermissible.' We reject this argument. It is not for
us to resolve empirical uncertainties underlying state legislation, save in the
exceptional case where that legislation plainly impinges upon rights pro­
tected by the Constitution itself . . . Although there is no conclusive proof of
a connection between antisocial behavior and obscene material, the legisla­
ture of Georgia could quite reasonably determine that such a connection does
or might exist." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 60-61 (1973)
(Burger, J . , for the majority) (emphasis added); see also Roth v. U.S . , 354
u.s. 476, 501 (1957).
9. Some of the harm of pornography to women, as defined in note 1
above, and as discussed in this talk, has been documented in empirical stud­
ies. Recent studies have found that exposure to pornography increases the
willingness of normal men to aggress against women under laboratory con­
ditions; makes both women and men substantially less able to perceive ac-

264
 Notes to Page 147

counts of rape as accounts of rape; makes normal men more closely resemble
convicted rapists psychologically; increases attitudinal measures that are
known to correlate with rape, such as hostility toward women, propensity to
rape, condoning rape, and predictions that one would rape or force sex on a
woman if one knew one would not get caught; and produces other attitude
changes in men, such as increasing the extent of their trivialization, de­
humanization, and objectification of women. Diana E. H. Russell, "Pornog­
raphy and Violence: What Does the New Research Say?" in Lederer, note 8
above, at 216; Neil M. Malamuth and Edward Donnerstein (eds.), Pornogra­
phy and Sexual Aggression (1984); Dolph Zillman, The Connection between Sex
and Aggression (1984); J. V. P. Check, N. Malamuth, and R. Stille, "Hostility
to Women Scale" (1983) (unpublished manuscript); Edward Donnerstein,
"Pornography: Its Effects on Violence against Women," in Malamuth and
Donnerstein, eds., Pornography and Sexual Aggression (1984); Neil M. Mala­
muth and J. V. P. Check, "The Effects of Mass Media Exposure on Accept­
ance of Violence against Women: A Field Experiment," 15 Journal of Research
in Personality 436 (1981); Neil M. Malamuth, "Rape Proclivities among Males,"
37 Journal of Social Issues 138 (1981); Neil M. Malamuth and Barry Spinner, "A
Longitudinal Content Analysis of Sexual Violence in the Best-Selling Erotic
Magazines," 16 Journal of Sex Research 226 (1980); Mosher, "Sex Callousness
Towards Women," in 8 Technical Report of the Commission on Obscenity and Por­
nography 313 (1971); Dolph Zillman and J. Bryant, "Effects of Massive Expo­
sure to Pornography," in Malamuth and Donnerstein, eds., Pornography and
Sexual Aggression
(1984).
10. The following are illustrative, not exhaustive, of the body of work I
term the "feminist critique of pornography." Andrea Dworkin, note 1 above;
Dorchen Leidholdt, "Where Pornography Meets Fascism," Win, Mar. 15,
1983, at 18; George Steiner, "Night Words," in The Case Against Pornography
227 (D. Holbrook ed. 1973); Susan Brownmiller, Against Our Will: Men, Women
and Rape 394 (1975); Robin Morgan, "Pornography and Rape: Theory and
Practice," in Going Too Far 165 (Robin Morgan ed. 1977); Kathleen Barry, Fe­
male Sexual Slavery (1979); Against Sado-Masochism: A Radical Feminist Analysis
(R. R. Linden, D. R. Pagano, D. E. H. Russell, and S. L. Star eds. 1982), es­
pecially chapters by Ti-Grace Atkinson, Judy Butler, Andrea Dworkin, Alice
Walker, John Stoltenberg, Audre Lorde, and Susan Leigh Star; Alice Walker,
"Coming Apart," in Lederer, Take Back the Night, note 8 above, and other
articles in that volume with the exception of the legal ones; Gore Vidal,
"Women's Liberation Meets the Miller-Mailer-Manson Man," in Homage to
Daniel Shays: Collected Essays 1 952-1972 389 (1972); Linda Lovelace and Mi­
chael McGrady, Ordeal (1980). Works basic to the perspective taken here are
Kate Millett, Sexual Politics (1969) and Florence Rush, The Best-Kept Secret: Sex­
ual Abuse of Children (1980). "Violent Pornography: Degradation of Women
versus Right of Free Speech," 8 New York University Review of Law and Social
Change 181 (1978) contains both feminist and nonfeminist arguments.
1 1 . For more extensive discussions of this subject, see my prior work, es­
pecially "Feminism, Marxism, Method and the State: An Agenda for Theory,"

265
Notes to Pages 147-149

7 Signs: Journal of Women in Culture and Society 515 (1982) [hereinafter cited as
Signs I]; "Feminism, Marxism, Method and the State: Toward Feminist Jur­
isprudence," 8 Signs: Journal of Women in Culture and Society 635 (1983) [here­
inafter cited as Signs II].
12. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
13. Justice Stewart is said to have complained that this single line was more
quoted and remembered than anything else he ever said.
14. See Signs I, note 11 above.
15. Susan Griffin, Pornography and Silence: Culture's Revenge Against Nature
2-4, 251-65 (1981).
16. Dworkin, note 1 above.
17. See also Dworkin, note 6 above.
18. The position that pornography is sex-that whatever you think of sex
you think of pornography-underlies nearly every treatment of the subject.
In particular, nearly every nonfeminist treatment proceeds on the implicit or
explicit assumption, argument, criticism, or suspicion that pornography is
sexually liberating in some way, a position unifying an otherwise diverse
literature. See, e.g., D. H. Lawrence, "Pornography and Obscenity," in his
Sex, Literature and Censorship 64 (1959); Hugh Hefner, "The Playboy Philoso­
phy," Playboy, December 1962, at 73, and Playboy, February 1963, at 43; Henry
Miller, "Obscenity and the Law of Reflection," in his Remember to Remember
274, 286 (1947); Deirdre English, "The Politics of Porn: Can Feminists Walk
the Line?" Mother Jones, Apr. 1980, at 20; Jean Bethke Elshtain, "The Victim
Syndrome: A Troubling Tum in Feminism," The Progressive, June 1982, at 42.
To choose an example at random: "In opposition to the Victorian view that
narrowly defines proper sexual function in a rigid way that is analogous to
ideas of excremental regularity and moderation, pornography builds a model
of plastic variety and joyful excess in sexuality. In opposition to the sorrow­
ing Catholic dismissal of sexuality as an unfortunate and spiritually superfi­
cial concomitant of propagation, pornography affords the alternative idea of
the independent status of sexuality as a profound and shattering ecstasy."
David Richards, "Free Speech and Obscenity Law: Toward a Moral Theory
of the First Amendment," 123 University of Pennsylvania Law Review 45, 81
(1974) (footnotes omitted) . See also F. Schauer, "Response: Pornography and
the First Amendment," 40 University of Pittsburgh Law Review 605, 616 (1979).
19. Spending time around adult bookstores, attending pornographic mov­
ies, and talking with pornographers (who, like all smart pimps, do some
form of market research), as well as analyzing the pornography itself in sex/
gender terms, all confirm that pornography is for men. That women may
attend or otherwise consume it does not make it any less for men, any more
than the observation that mostly men consume pornography means that por­
nography does not harm women. See Martha Langelan, "The Political Econ­
omy of Pornography," Aegis: Magazine on Ending Violence against Women, Au­
tumn 1981, at 5; J. Cook, "The X-Rated Economy," Forbes, Sept. 18, 1978, at
60. Personal observation reveals that most women tend to avoid pornogra­
phy as much as possible-which is not very much, as it turns out.

266
 Notes to Pages 149-150

20. The "fantasy" and "catharsis" hypotheses, together, assert that por­
nography cathects sexuality on the level of fantasy fulfillment. The work of
Edward Donnerstein, particularly, shows that the opposite is true. The more
pornography is viewed, the more pornography-and the more brutal por­
nography-is both wanted and required for sexual arousal. What occurs is
not catharsis, but desensitization, requiring progressively more potent stim­
ulation. See works cited note 9 above; Murray Straus, "Leveling, Civility, and
Violence in the Family," 36 Journal of Marriage & The Family 13 (1974).
21. Lovelace and McGrady, note 10 above, provides an account by one
coerced pornography model. See also Andrea Dworkin, "Pornography's 'Ex­
quisite Volunteers,' Ms., March 1981, at 65.
22. However, for one such inquiry, see Russell, note 9 above, at 228: a
random sample of 930 San Francisco households found that 10 percent of
women had at least once "been upset by anyone trying to get you to do what
they'd seen in pornographic pictures, movies or books." Obviously, this fig­
ure could only include those who knew that the pornography was the source
of the sex, so this finding is conservative. See also Diana E. H. Russell, Rape
in Marriage 27-41 (1983) (discussing the data base). The hearings Andrea
Dworkin and I held for the Minneapolis City Council on the ordinance cited
in note 1 produced many accounts of the use of pornography to force sex on
women and children. Public Hearings on Ordinances to Add Pornography as Dis­
crimination against Women, Committee on Government Operations, City
Council, Minneapolis, Minn., Dec. 12-13, 1983. (Hereinafter cited as Hear­
ings).
23. See Signs I; see also Susan Sontag, "The Pornographic Imagination," 34
Partisan Review 181 (1977).
24. "Explicitness" of accounts is a central issue in both obscenity adjudi­
cations and audience access standards adopted voluntarily by self-regulated
industries or by boards of censor. See, e.g., Grove Press v. Christenberry, 175
F. Supp. 488, 489 (S.D.N. Y. 1959) (discussion of "candor" and "realism");
Grove Press v. Christenberry, 276 F.2d 433, 438 (2d Cir. 1960) ("directness");
Mitchum v. State, 251 So.2d 298, 302 (Fla. Dist. Ct. App. 1971) ("show it all");
Kaplan v. California, 413 U.S. 115, 118 (1973). How much sex the depiction
shows is implicitly thereby correlated with how sexual (that is, how sexually
arousing to the male) the material is. See, e.g., Memoirs v. Massachusetts,
383 U.S. 413, 460 (1966) (White, ]., dissenting); Richard Heffner, "What G,
PG, R and X Really Means," 126 Cong. Rec. 172 (daily ed. Dec. 8, 1980); Report
of the Committee on Obscenity and Film Censorship (the Williams Report) (1981) .
Andrea Dworkin brilliantly gives the reader the experience o f this aesthetic
in her account of the pornography. Dworkin, note 1 above, at 25-47.
25. To the body of law ably encompassed and footnoted by William Lock­
hart and Robert McClure, "Literature, the Law of Obscenity and the Consti­
tution," 38 Minnesota Law Review 295 (1954) and "Censorship of Obscenity,"
45 Minnesota Law Review 5 (1960), I add only the most important cases since
then: Stanley v. Georgia, 394 U.S. 557 (1969); U.S. v. Reidel, 402 U.S. 351
(1970); Miller v. California, 413 U.S. 15 (1973); Paris Adult Theatre I v. Slaton,

267
Notes to Pages 150-151

413 U.S. 49 (1973); Hamling v. U.S., 418 U.S. 87 (1973); Jenkins v. Georgia,
418 U.S. 153 (1973); U.S. v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123
(1973); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Splawn v. Cali­
fornia, 431 U.S. 595 (1976); Ward v. Illinois, 431 U.S. 767 (1976); Lovisi v.
Slayton, 539 F.2d 349 (4th Cir. 1976). See also New York v. Ferber, 458 U.S.
747 (1982).
26. For a discussion of the role of the law of privacy in supporting the
existence of pornography, see Ruth Colker, "Pornography and Privacy: To­
wards the Development of a Group Based Theory for Sex Based Intrusions
of Privacy," 1 Law and Inequality: A Journal of Theory and Practice 191 (1983).
27. Louis Henkin, "Morals and the Constitution: The Sin of Obscenity," 63
Columbia Law Review 391, 395 (1963).
28. These parallels are discussed more fully in Signs II. It may seem odd
to denominate "moral" as female here, since this article discusses male mo­
rality. Under male supremacy, men define things; I am describing that. Men
define women as "moral." This is the male view of women. My analysis, a
feminist critique of the male standpoint, terms "moral" the concept that por­
nography is about good and evil. This is my analysis of them, as contrasted
with their attributions to women.
29. A reading of case law supports the reports in Robert Woodward and
Scott Armstrong, The Brethren 194 (1979), to the effect that this is a "bottom
line" criterion for at least some justices. The interesting question becomes
why the tactics of male supremacy would change from keeping the penis
hidden, covertly glorified, to having it everywhere on display, overtly glori­
fied. This suggests at least that a major shift from private terrorism to public
terrorism has occurred. What used to be perceived as a danger to male
power, the exposure of the penis, has now become a strategy in maintain­
ing it.
30. One possible reading of Lockhart and McClure, note 25 above, is that
this was their agenda, and that their approach was substantially adopted in
the third prong of the Miller doctrine. For the law's leading attempt to grapple
with this issue, see Memoirs v. Massachusetts, 383 U.S. 413 (1966), overruled
in part, Miller v. California, 413 U.S. 15 (1973). See also U.S. v. Ulysses, 5 F.
Supp. 182 (S.D.N.Y. 1933), aff'd 72 F.2d 705 (2d Cir. 1934).
31. Andrea Dworkin and I developed this analysis in our class "Pornog­
raphy" at the University of Minnesota Law School, Fall 1983. See also Dwor­
kin, "Why So-Called Radical Men Love and Need Pornography," in Lederer,
note 8 above, at 141 (the issue of pornography is an issue of sexual access to
women, hence involves a fight among men).
32. Those termed "fathers" and "sons" in Dworkin's article, note 31 above,
we came to call "the old boys," whose strategy for male dominance involves
keeping pornography and the abuse of women private, and "the new boys,"
whose strategy for male dominance involves making pornography and the
abuse of women public. In my view Freud and the popularization of his de­
repression hypothesis figure centrally in "the new boys"' approach and suc­
cess. To conclude, as some have, that women have benefited from the public

268
 Notes to Pages 151-153

availability of pornography and hence should be grateful for and have a stake
in its continuing availability is to say that the merits of open condoned
oppression relative to covert condoned oppression warrant its continuation.
This reasoning obscures the possibility of ending the oppression. The benefit
of pornography's open availability, it seems to me, is that women can know
who and what we are dealing with in order to end it. How, is the question.
33. Miller v. California, 413 U.S. 15, 24 (1973).
34. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973). See also Miller v.
California, 413 U.S. 15, 25 n.7 ("A quotation from Voltaire in the flyleaf of a
book will not constitutionally redeem an otherwise obscene publication,"
quoting Kois v. Wisconsin, 408 U.S. 229, 231 [1972]).
35. Penthouse International v. McAuliffe, 610 F.2d 1353, 1362-73 (5th Cir.
1980). For a study in enforcement, see Coble v. City of Birmingham, 389 So.2d
527 (Ala. Ct. App. 1980).
36. Malamuth and Spinner, note 9 above (" . . . the portrayal of sexual
aggression within such 'legitimate' magazines as Playboy and Penthouse may
have a greater impact than similar portrayals in hard-core pornography");
Neil M. Malamuth and Edward Donnerstein, "The Effects of Aggressive-Por­
nographic Mass Media Stimuli," 15 Advances in Experimental Social Psychology
103, 130 (1982).
37. Some courts, under the obscenity rubric, seem to have understood that
the quality of artistry does not undo the damage. People v. Mature Enter­
prises, 343 N . Y.S.2d 911, 925 n. 14 (N.Y. Sup. 1973) ("This court will not adopt
a rule of law which states that obscenity is suppressible but that well-written
or technically well produced obscenity is not," quoting, in part, People v.
Fritch, 13 N . Y.2d 1 19, 126, 243 N.Y.S.2d 1, 7, 192 N.E.2d 713 [1963]). More
to the point of my argument here is Justice O'Connor's observation that
"[t]he compelling interests identified in today's opinion . . . suggest that the
Constitution might in fact permit New York to ban knowing distribution of
works depicting minors engaged in explicit sexual conduct, regardless of the
social value of the depictions. For example, a 12-year-old child photographed
while masturbating surely suffers the same psychological harm whether the
community labels the photograph 'edifying' or 'tasteless.' The audience's ap­
preciation of the depiction is simply irrelevant to New York's asserted interest
in protecting children from psychological, emotional, and mental harm."
New York v. Ferber, 458 U.S. 747, 774-75 (1982) (concurring). Put another
way, how does it make a harmed child not harmed that what was produced
by harming him is great art?
38. Women typically get mentioned in obscenity law only in the phrase,
"women and men," used as a synonym for "people." At the same time, ex­
actly who the victim of pornography is, has long been a great mystery. The
few references to "exploitation" in obscenity litigation do not evoke a woman
victim. For example, one reference to "a system of commercial exploitation
of people with sadomasochistic sexual aberrations" concerned the customers
of women dominatrixes, all of whom were men. State v. Von Cleef, 102 N.J.
Super. 104, 245 A.2d 495, 505 (1968). The children at issue in Ferber were boys.

269
Notes to Pages 153-155

Similarly, Justice Frankfurter invoked the "sordid exploitation of man's na­

ture and impulses" in discussing his conception of pornography in Kingsley
Pictures Corp. v. Regents, 360 U.S. 684, 692 (1958).
39. Miller v. California, 413 U.S. 15, 24 (1973).
40. See, e.g., Miller v. California, id. at 40-41 (Douglas, J., dissenting)
("What shocks me may be sustenance for my neighbors"); U.S. v. 12 200-Ft.
Reels of Super 8mm Film, 413 U.S. 123, 137 (1972) (Douglas, J., dissenting)
("[W)hat may be trash to me may be prized by others"); Cohen v. California,
403 U.S. 15, 25 (1970) (Harlan, J.) ("One man's vulgarity is another's lyric");
Winters v. New York, 333 U.S. 507, 510 (1947) ("What is one man's amuse­
ment, teaches another's doctrine"); Lawrence, note 18 above, at 195 ("What
is pornography to one man is the laughter of genius to another"); Ginzburg
v. United States, 383 U.S. 463, 489 (1966) (Douglas, J., dissenting) ("Some
like Chopin, others like 'rock and roll"'). As one man, the pimp who forced
Linda Lovelace into pornography, said to another: "I don't tell you how to
write your column. Don't tell me how to treat my broads." (Quoted in Gloria
Steinem, "The Real Linda Lovelace," in Outrageous Acts and Everyday Rebel­
lions 243, 252 [1983) . )
4 1 . For the resolution of this issue for nonconventional sexuality, see Mish­
kin v. New York, 383 U.S. 502, 508 (1966).
42. None of this is intended as a comment about the personal sexuality or
principles of any judicial individual; it is rather a series of analytic observa­
tions that emerge from a feminist attempt to interpret the deep social struc­
ture of a vast body of case law on the basis of a critique of gender. Further
research should systematically analyze the contents of the pornography in­
volved in the cases. For instance, with respect to the last hypothesis in the
text above, is it just chance that the first film to be found obscene by a state
supreme court depicts male masturbation? Landau v. Fording, 245 C.A.2d
820, 54 Cal. Rptr. 177 (1966). Given the ubiquity of the infantilization of
women and the sexualization of little girls, would Ferber have been decided
the same way if it had shown twelve-year-old girls masturbating? Did works
like Lady Chatterley's Lover and Tropic of Cancer get in trouble because male
sexuality is depicted in a way that men think is dangerous for women and
children to see?
43. Roth v. U.S., 354 U.S. 476 (1957), but cf. Stanley v. Georgia, 394 U.S.
557 (1969), in which the right to private possession of obscene materials is
protected as a First Amendment speech right. See 67 Landmark Briefs and Ar­
guments of the Supreme Court of the United States: Constitutional Law 850 (P. Kur­
land and G . Casper eds. 1975).
44. E.g. , The Report of the Commission on Obscenity and Pornography, note 8
above, at 1, charges the commission to study "[t]he effect of obscenity and
pornography upon the public and particularly minors and its relation to
crime and other antisocial behavior."
45. Naomi Scheman, "Making it All Up," transcript of speech, January
1982, at 7.
46. This body of work is usually taken to be diverse. Thomas I. Emerson,

270
 Notes to Pages 155-156

Toward a General Theory of the First Amendment (1966); Emerson, The System of
Freedom of Expression (1970); Alexander Meiklejohn, Free Speech and Its Relation
to Self-Government (1948); Whitney v. California, 274 U.S. 357, 375 (1927)
(Brandeis, J., concurring, joined by Holmes, J.); T. Scanlon, "A Theory of Free
Expression," 1 Philosophy and Public Affairs 204 (1972); John Hart Ely, "Flag
Desecration: A Case Study in the Roles of Categorization and Balancing in
First Amendment Analysis," 88 Harvard Law Review 1482 (1975); Zechariah
Chafee, Free Speech in the United States 245 (1948). This literature is ably sum­
marized and anatomized by Ed Baker, who proposes an interpretative theory
that goes far toward responding to my objections here, without really alter­
ing the basic assumptions I criticize. See C. E. Baker, "Scope of the First
Amendment Freedom of Speech," 25 UCLA Law Review 964 (1978) and "The
Process of Change and the Liberty Theory of the First Amendment," 55
Southern California Law Review 293 (1982).
47. Emerson, Toward a General Theory of the First Amendment, note 46 above,
at 28.
48. See Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Breard v.
Alexandria, 341 U.S. 622, 641-45 (1951); Kovacs v. Cooper, 336 U.S. 77, 87-
89 (1949).
49. Stanley v. Georgia, 394 U.S. 557 (1969).
50. See Walker, "Coming Apart," in Lederer, note 8 above, at 85; Russell,
note 9 above; Hearings. Cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 71
(1973) (Douglas, J., dissenting) ("[In] a life that has not been short, I have yet
to be trapped into seeing or reading something that would offend me"). He
probably hadn't.
51. See "Privacy v. Equality" in Part II for a fuller discussion of this point.
52. Emerson, Toward a General Theory of the First Amendment, note 46 above,
at 1 6-25. See also Emerson, The System of Freedom of Expression, note 46 above,
at 17.
53. The essentially scientific notion of causality did not first appear in this
law at this time, however. See, e.g., U.S. v. Roth, 237 F.2d 796, 812-17 (2d
Cir. 1956) (Frank, ]., concurring) ("According to Judge Bok, an obscenity stat­
ute may be validly enforced when there is proof of a causal relation between
a particular book and undesirable conduct. Almost surely, such proof cannot
ever be adduced." Id., 826 n.70).
Werner Heisenberg, criticizing old ideas of atomic physics in light of Ein­
stein's theory of relativity, states what conditions must exist for a causal re­
lation to make sense: "To coordinate a definite cause to a definite effect has
sense only when both can be observed without introducing a foreign element
disturbing their interrelation. The law of causality, because of its very nature,
can only be defined for isolated systems." Werner Heisenberg, The Physical
Principles of the Quantum Theory 63 (1930). Among the influences that disturb
the isolation of systems are observers. Underlying the adoption of a causality
standard in obscenity law is a rather hasty analogy between the regularities
of physical and of social systems, an analogy that has seldom been explicitly
justified or even updated as the physical sciences have questioned their own

271
Notes to Pages 156-157

epistemological foundations. This kind of scientific causality may not be

readily susceptible to measurement in social systems for the simple reason
that social systems are not isolated systems; experimental research (which is
where it has been shown that pornography causes harm) can only minimize
the influence of what will always be "foreign elements." Pornography and
harm may not be two definite events anyway; perhaps pornography is a
harm. Moreover, if the effects of pornography are systematic, they may not
be isolable from the system in which they exist. This would not mean that
no harm exists. Rather, it would mean that because the harm is so pervasive,
it cannot be sufficiently isolated to be perceived as existing according to this
causal model. In other words, if pornography is seen as harmful only if it
causes harm by this model, and if it exists socially only in ways that cannot
be isolated from society itself, its harm will not be perceived to exist. I think
this describes the conceptual situation in which we find ourselves.
54. Morton Horowitz, "The Doctrine of Objective Causation," in The Poli­
tics of Law 201 (David Kairys ed. 1982). The pervasiveness of the objectifica­
tion of women has been treated as a reason why pandering should not be
constitutionally restricted: "The advertisements of our best magazines are
chock-full of thighs, ankles, calves, bosoms, eyes, and hair, to draw the po­
tential buyer's attention to lotions, tires, food, liquor, clothing, autos, and
even insurance policies." Ginzburg v. U.S., 383 U.S. 463, 482 (1966) (Douglas,
J., dissenting). Justice Douglas thereby illustrated, apparently without notic­
ing, that somebody knows that associating sex, that is, women's bodies, with
things causes people to act on that association.
55. See Lovelace and McGrady, note 10 above.
56. Two boys masturbating with no showing of explicit force demonstrates
the harm of child pornography in New York v. Ferber, 458 U.S. 747 (1982),
while shoving money up a woman's vagina, among other acts, raises serious
questions of "regulation of 'conduct' having a communicative element" in
live sex adjudications, California v. LaRue, 409 U.S. 109, 1 13 (1972) (live sex
can be regulated by a state in connection with serving alcoholic beverages).
"Snuff" films, in which a woman is actually murdered to produce a film for
sexual entertainment, are known to exist. People v. Douglas and Hernandez,
Felony Complaint No. NF8300382, Municipal Court, North Judicial District,
Orange County, Calif., Aug. 5, 1983, alleges the murder of two young girls
to make a pornographic film. Hernandez turned state's evidence; Doug­
las was convicted of first-degree murder in November 1984. No snuff film
was found. (Conversation with Tony Rackackaus, district attorney, Sept. 3,
1986.)
57. Both Griffin, note 15 above, and the oldest Anglo-Saxon obscenity
cases locate the harm of pornography in the mind of the consumer. See, e.g.,
Regina v. Hicklin, 3 L.R-Q.B. 360, 371 (1868) ("tendency . . . to deprave and
corrupt those whose minds are open to such immoral influences and into
whose hands a publication of this sort may fall"). The data of John Court and
Berl Kutchinsky, both correlational, reach contrary conclusions on the rela­
tion of pornography's availability to crime statistics. Kutchinsky, "Towards

272
 Notes to Pages 157-158

an Explanation of the Decrease in Registered Sex Crimes in Copenhagen," 7

Technical Report of the Commission on Obscenity and Pornography 263 (1971);
Kutchinsky, "The Effect of Easy Availability of Pornography on the Incidence
of Sex Crimes: The Danish Experience," 29 Journal of Social Issues 163 (1973);
cf. Court, "Pornography and Sex Crimes: A Re-Evaluation in the Light of
Recent Trends around the World," 5 International Journal of Criminology and
Penology 129 (1977). More recent investigations into correlations focused on
rape in the United States have reached still other conclusions. Larry Baron
and Murray Straus have found a strong correlation between state-to-state
variations in the rate of reported rape and the aggregate circulation rate of
popular men's sex magazines, including Playboy and Hustler. "Sexual Strati­
fication, Pornography, and Rape," Family Research Laboratory and Depart­
ment of Sociology, University of New Hampshire, Durham, N.H., Nov. 18,
1983 (manuscript). The authors conclude that "the findings suggest that the
combination of a society which is characterized by a struggle to secure equal
rights for women, by a high readership of sex magazines which depict
women in ways which may legitimize violence, and by a context in which
there is a high level of non-sexual violence, constitutes a mix of societal char­
acteristics which precipitate rape" at 16. See also the "Williams Report," note
24 above, and the opinions of Justice Harlan on the injury to "society" as a
permissible basis for legislative judgments in this area. Roth v. U.S., 354 U.S.
476, 501-02 (1957) (concurring in companion case, Alberts v. California).
58. Laurence Tribe, American Constitutional Law 662 (1978).
59. I am conceiving rape as sexual aggression. On the connection between
pornography and rape, see Neil M. Malamuth, "Rape Proclivity among Men,"
37 Journal of Social Issues 138 (1981); Neil M. Malamuth, "Rape Fantasies as a
Function of Exposure to Violent Sexual Stimuli," 10 Archives of Sexual Behavior
33 (1981); Scott Haber and Seymour Feshbach, "Testing Hypotheses Regard­
ing Rape: Exposure to Sexual Violence, Sex Differences, and the 'Normality'
of Rapists," 14 Journal of Research in Personality 121 (1980); Maggie Heim and
Seymour Feshbach, "Sexual Responsiveness of College Students to Rape De­
pictions: Inhibitory and Disinhibitory Effects," 38 Journal of Personality and
Social Psychology 399 (1980). See also works by Malamuth, note 9 above. Of
course, there are difficulties in measuring rape as a direct consequence of
laboratory experiments, difficulties that have led researchers to substitute
other measures of willingness to aggress, such as electric shocks.
60. Apparently, it may be impossible to make a film for experimental pur­
poses that portrays violence or aggression by a man against a woman that a
substantial number of male experimental subjects do not perceive as sexual.
See Hearings, at 31 (testimony of Edward Donnerstein).
61. See works of Zillman, note 9 above.
62. Immanuel Kant, Fundamental Principles of the Metaphysics of Morals (T.
Abbott trans. 1969); Arthur Danto, "Persons," in 6 Encyclopedia of Philosophy
10 (P. Edwards ed. 1967); Margaret Radin, "Property and Personhood," 34
Stanford Law Review 957 (1982).
63. See Kant, note 62 above; Danto, note 62 above; Radin, note 62 above.

273
Notes to Pages 158-163

See also the "original position" of John Rawls, A Theory of Justice (1971), and
Rawls, "Kantian Constructivism in Moral Theory," 9 Journal of Philosophy 515,
533-35 (1980).
64. Ludwig Wittgenstein, Philosophical Investigations 178 (G. Anscombe
trans. 3d ed. 1958).
65. Karl Marx's critique of capitalist society is epitomized in Capital chap.
1 (1867). His concept of the "fetishism of commodities" in which "relations
between men [assume], in their eyes, the fantastic form of a relation between
things" (emphasis added) is presented in the 1970 edition at 72.
66. David Hume, "Of Personal Identity," in A Treatise of Human Nature bk.
I, pt. IV, § VI (1888) .
67. Bernard Williams, "Are Persons Bodies? Personal Identity and Indivi­
dualization" and "Bodily Continuity and Personal Identity," in his Problems
of the Self !, 64 (1973). Bernard Williams was principal author of the "Williams
Report," note 24 above, Britain's equivalent of the U.S. Commission on Ob­
scenity and Pornography, in which none of his values of "persons" were no­
ticed lacking in, or women deprived of them by, pornography.
68. See Signs I and II.
69. I have come to this conclusion from my analysis of all the empirical
data available to date, the pornography itself, and personal observations.
70. Brownmiller, note 10 above, is widely considered to present the view
that rape is an act of violence, not sex. Women Against Pornography, a New
York based antipornography group, has argued that pornography is violence
against women, not sex. This has been almost universally taken as the femi­
nist position on the issue. For an indication of possible change, see 4 NCASA
News 19-21 (May 1984).
71. This, again, does not mean that it is an idea. A new theory of ideology,
prefigured in Dworkin, note 1 above, will be needed to conceptualize the role
of pornography in constructing the condition of women.
72. Dworkin, note 1 above, at 115.
73. "Echoing Macaulay, 'Jimmy' Walker remarked that he had never heard
of a woman seduced by a book." U.S. v. Roth, 237 F.2d 796, 812 (1956) (ap­
pendix to concurrence of Frank, J.) What is classically called seduction, I ex­
pect feminists might interpret as rape or forced sex.

14. Francis Biddle's Sister

1 . We define pornography as in "Not a Moral Issue," note 1 . The Indi­

anapolis City and County Council passed a version of it eliminating subsec­
tions (i), (v), (vi), and (vii) , and substituting instead as (vi) "women are pre­
sented as sexual objects for domination, conquest, violation, exploitation,
possession, or use, or through postures or positions of servility or submis­
sion or display." Indianapolis, Ind., City-County General Ordinance No. 35
Oune 11, 1984) (adding inter alia, ch. 16, § 16-3(q)(6) to the Code of Indian­
apolis and Marion County) [hereinafter cited as Indianapolis Ordinance]. It
was signed by the mayor, and a suit immediately followed in federal court,

274
 Notes to Pages 163-165

see American Booksellers, Inc. v. Hudnut, 598 F. Supp. 1316 (S.D. Ind. 1984),
771 F.2d 323 (7th Cir. 1985) aff'd 106 S.Ct. 1172 (1986).
2. See Public Hearings on Ordinances to Add Pornography as Discrimination
Against Women, Committee on Government Operations, City Council, Min­
neapolis, Minn. (Dec. 12-13, 1983) [hereinafter cited as Hearings). All those
who testified in these hearings were fully identified to the City Council.
Some are identified here only by their last initials for purposes of privacy.
3. I treat these themes more fully in "Feminism, Marxism, Method and
the State: Toward Feminist Jurisprudence," 8 Signs: Journal of Women in Culture
and Society 635 (1983); "Feminism, Marxism, Method and the State: An
Agenda for Theory," 7 Signs: Journal of Women in Culture and Society 515 (1982).
4. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
5. For my use of upper-case "Black" see "Not By Law Alone," note 12.
6. The classic enunciation of the meaning of neutrality as the principled
approach to constitutional adjudication is Herbert Wechsler, "Toward Neu­
tral Principles of Constitutional Law," 73 Harvard Law Review 1 (1959). The
doctrine of gender neutrality applies this approach to the area of sex, which
goes far toward explaining the predominance of male plaintiffs in the Su­
preme Court's leading gender discrimination cases, especially among suc­
cessful plaintiffs. See cases collected at David Cole, "Strategies of Difference:
Litigating for Women's Rights in a Man's World," 2 Law & Inequality: Journal
of Theory and Practice 33, 34 n.4 (1984) ("The only area in which male plaintiffs
do not dominate constitutional gender discrimination cases involves treat­
ment of pregnancy").
7. For judicial discussions of the color-blindness of the law, see Fullilove
v. Klutznick, 448 U.S. 448, 482 (1980); United Steelworkers of America v.
Weber, 443 U.S. 193 (1979); Regents of the University of California v. Bakke,
438 U.S. 265, 327 (1978) (Brennan, White, Marshall, and Blackmun, JJ., con­
curring in part and dissenting in part); Swann v. Charlotte-Mecklenburg Bd.
of Educ., 402 U.S. 1, 19 (1971); Plessy v. Ferguson, 163 U.S. 537, 559 (1896)
("Our Constitution is color-blind, and neither knows nor tolerates classes
among citizens") (Harlan, J., dissenting). The view that the Constitution
should also be sex-blind also animates the leading interpretation of the pro­
posed federal Equal Rights Amendment. Barbara Brown, Thomas I. Emer­
son, Gail Falk, and Ann Freedman, "The Equal Rights Amendment: A Con­
stitutional Basis for Equal Rights for Women," 80 Yale Law Journal 871 (1971).
8. The absolutist position on the entire Constitution was urged by Justice
Black; see, e.g. , Hugo Black, "The Bill of Rights," 35 New York University Law
Review 865, 867 (1960), focusing at times on the First Amendment; see, e.g.,
E. Cahn, "Justice Black and First Amendment 'Absolutes': A Public Inter­
view," 37 New York University Law Review 549 (1962). Justice Douglas as well
as Justice Black emphatically articulated the absolutist position in the obscen­
ity context. See, e.g. , Miller v. California, 413 U.S. 15, 37 (1973) (Douglas, J.,
dissenting); Smith v. California, 361 U.S. 147, 155 (1959) (Black, J., concur­
ring); Roth v. United States, 354 U.S. 476, 514 (1957) (Douglas, J., joined by
Black, J., dissenting). Absolutist-influenced discontent with obscenity law is

275
Notes to Pages 165-166

clear in Justice Brennan's dissent in Paris Adult Theatre I v. Slaton, 413 U.S.
49, 73 (1973).
9. The image of the First Amendment as guaranteeing the "free trade in
ideas," in which the "best test of truth is the power of the thought to get itself
accepted in the competition of the market," originated with Justice Holmes,
dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919) (joined by
Brandeis, J.). Some possible shortcomings in this model are noticed in Laur­
ence Tribe, American Constitutional Law 576-77 (1978).
10. See Wechsler, note 6, above.
1 1 . Plessy v. Ferguson, 163 U.S. 537 (1896).
12. 347 U.S. 483 (1954) (Brown I); Brown v. Bd. of Educ., 349 U.S. 294 (1955)
(Brown II).
13. See Lochner v. New York, 198 U.S. 45 (1905); Allgeyer v. Louisiana, 165
U.S. 578 (1897) (invalidating maximum hours restrictions on the ground of
liberty to freely contract). For the rest of the tradition and its demise, see note
14 below.
14. See, e.g. , Muller v. Oregon, 208 U.S. 412 (1908) (sustaining women's
hours restrictions). Adkins v. Children's Hospital, 261 U. S. 525 (1923) (leg­
islation mandating minimum wages for women violated due process) was
overruled in West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (minimum wage
laws for women may be legislated). Parrish followed Bunting v. Oregon, 243
U.S. 426 (1917) (upholding state law limiting hours). See also Stettler v.
O'Hara, 243 U.S. 629 (1909) (upholding state minimum wage requirements
for women factory workers). It is not that women as such were invisible to
the judges who decided these cases. Indeed, it was their conception of wom­
en's distinctive (mostly physical) vulnerabilities as well as family place that
justified the rulings upholding these laws, while laws protecting all workers,
as in Lochner, were disallowed. Because this substantive view of women was
so demeaning as well as so destructive, and because it became part of the
critique of substantivity in adjudication as such, which was necessary to es­
tablish if social welfare legislation was to be allowed, the possibility was ob­
scured that there might be a substantive analysis of the situation of women
that was adequate to women's distinctive social exploitation, which could
ground a claim to equality, and which did not license any more wholesale
judicial discretion in the direction and to the degree it already existed. If one
wants to claim no more for a powerless group than what can be extracted
under an established system of power-if only the lines between that group
and the powerful can be blurred as much as possible-one strategy is to try
to claim that the powerless are entitled to what "everybody" is entitled to: in
short, abstract. If, however, one's claim is against the distribution of power
itself, one needs a critique not so much of the substantivity of the Lochner­
era approach per se, but of its substance, with a critique of the tradition that
replaced it, in which part of the strategy for hegemony is to present sub­
stance as substancelessness.
15. See, e.g., Regents of the University of California v. Bakke, 438 U.S. 265
(1978); John Ely, Democracy and Distrust: A Theory of Judicial Review 54-55

276
 Notes to Pages 166-169

(1981). But see Laurence Tribe, "Speech as Power: Swastikas, Spending, and
the Mask of Neutral Principles," in Constitutional Choices (1985).
16. See Edward Levi, "An Introduction to Legal Reasoning," 15 University
of Chicago Law Review 501 (1948).
17. See, e.g., Derrick Bell, Race, Racism and American Law 1-85 (1972).
18. 347 u.s. 483 (1954).
19. On my analysis, the combined effect of Texas Dep't of Community Af­
fairs v. Burdine, 450 U.S. 248 (1981) and Fumco Constr. Corp. v. Waters, 438
U.S. 567 (1978), both purporting to follow the standard first announced in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is that anyone who
has been discriminated against is assumed exceptional and living in that sex­
discrimination-free universe that the burdens of proof are allocated to pre­
suppose. The difficulty arises in the attempt to assume that discrimination
because of sex neither exists nor does not exist in assessing facts such as
those in Burdine, in which two persons are equally qualified, the man gets
the job, and the woman sues. The Fifth Circuit in Burdine had required the
employer to prove that the man who got the job was more qualified, but its
decision was reversed. Facing the impossibility of neutrality here makes one
wonder if there is any difference between nondiscrimination and affirmative
action.
20. Selected publications are listed from the large body of work that exists.
On rape: Susan Brownmiller, Against Our Will: Men, Women and Rape (1975);
L. Clark and D. Lewis, Rape: The Price of Coercive Sexuality (1977); N. Gager
and C. Schurr, Sexual Assault: Confronting Rape in America (1976); A. Medea
and K. Thompson, Against Rape (1974); Diana Russell, Rape in Marriage (1982);
Diana Russell, The Politics of Rape (1975); Martha R. Burt, "Cultural Myths
and Supports for Rape," 38 Journal of Personality and Social Psychology 219
(1980); Irene Frieze, "Investigating the Causes and Consequences of Marital
Rape," 8 Signs: Journal of Women in Culture and Society 532 (1983); Gary LaFree,
"Male Power and Female Victimization: Towards a Theory of Interracial
Rape," 88 American Journal of Sociology 311 (1982); Diana Russell and Nancy
Howell, "The Prevalence of Rape in the United States Revisited," 8 Signs:
Journal of Women in Culture and Society 688 (1983).
On battery: R. Emerson Dobash and Russell Dobash, Violence against Wives:
A Case against the Patriarchy (1979); R. Langley and R. Levy, Wife Beating: The
Silent Crisis (1977); D. Martin, Battered Wives (rev. ed. 1981); S. Steinmetz, The
Cycle of Violence: Assertive, Aggressive, and Abusive Family Interaction (1977) (ref­
erenced in E. Stanko, below, at 73); L. Walker, The Battered Woman (1979);
Evan Stark, Ann Flitcraft, and William Frazier, "Medicine and Patriarchal
Violence: The Social Construction of a 'Private' Event," 3 International Journal
df Health Services 461 (1979).
On sexual harassment: Catharine A. MacKinnon, Sexual Harassment of
Working Women: A Case of Sex Discrimination (1979); Donna J. Benson and
Gregg E. Thompson, "Sexual Harassment on a University Campus: The Con­
fluence of Authority Relations, Sexual Interest and Gender Stratification," 29
Social Problems 236 (1982); Phyllis Crocker and Anne E. Simon, "Sexual

277
Notes to Page 169

Harassment in Education," 10 Capital University Law Review 3 (1981); U.S.

Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Is
It a Problem ? (1981).
On incest and child sexual abuse: L. Armstrong, Kiss Daddy Goodnight
(1978); Kathleen Brady, Father's Days: A True Story of Incest (1979); A. Burgess,
N. Groth, L. Holmstrom, and S. Sgroi, Sexual Assault of Children and Adoles­
cents (1978); S. Butler, Conspiracy of Silence: The Trauma of Incest (1978); D. Fin­
kelhor, Child Sexual Abuse: New Theory and Research (1984); D. Finkelhor, Sex­
ually Victimized Children (1979); J. Herman, Father-Daughter Incest (1981);
Florence Rush, The Best-Kept Secret: Sexual Abuse of Children (1980); Diana Rus­
sell, The Secret Trauma: Incest in the Lives of Girls and Women (1986); Arthur C.
Jaffe, Lucille Dynneson, and Robert TenBensel, "Sexual Abuse: An Epide­
miological Study," 6 American Journal of Diseases of Children 689 (1975); Diana
Russell, "The Prevalence and Seriousness of Incestuous Abuse: Stepfathers
vs. Biological Fathers," 8 Child Abuse and Neglect: The International Journal 15
(1984); Diana Russell, "The Incidence and Prevalence of Intrafamilial and
Extrafamilial Sexual Abuse of Female Children," 7 Child Abuse and Neglect: The
International Journal 2 (1983).
On prostitution: Kathleen Barry, Female Sexual Slavery (1979); Jennifer
James, The Politics of Prostitution (2d ed. 1975); Moira Griffin, "Wives, Hookers
and the Law: The Case for Decriminalizing Prostitution," 10 Student Lawyer
13 (1982); Jennifer James and Jane Meyerding, "Early Sexual Experience as a
Factor in Prostitution," 7 Archives of Sexual Behavior 31 (1977); "Report of Jean
Fernand-Laurent, Special Rapporteur on the Suppression of the Traffic in
Persons and the Exploitation of the Prostitution of Others" (a United Nations
report), in International Feminism: Networking against Female Sexual Slavery 130
(K. Barry, C.Bunch, S. Castley eds. 1984) (Report of the Global Feminist
Workshop to Organize Against Traffic in Women, Rotterdam, Netherlands,
Apr. 6-15, 1983).
On pornography: Andrea Dworkin, Pornography: Men Possessing Women
(1981); Linda Lovelace and Michael McGrady, Ordeal (1980); P. Bogdanovich,
The Killing of the Unicorn: Dorothy Stratten, 1 960-1980 (1984); Take Back the
Night: Women on Pornography (L. Lederer ed. 1980); Edward Donnerstein,
"Pornography: Its Effects on Violence against Women," in Pornography and
Sexual Aggression (N. Malamuth and E. Donnerstein eds. 1984); Martha
Langelan, "The Political Economy of Pornography," Aegis: Magazine on Ending
Violence against Women 5 (1981); Dorchen Leidholdt, "Where Pornography
Meets Fascism," Women's International News (WIN), Mar. 15, 1983, at 18; Dan­
iel Linz, Edward Donnerstein, and Steven Penrod, "The Effects of Long-Term
Exposure to Filmed Violence against Women" (Mar. 22, 1984) (unpublished
manuscript).
See generally: J. Long and P. Schwartz, Sexual Scripts: The Social Construction
of Female Sexuality (1976); E. Morgan, The Erotization of Male Dominance/Female
Submission (1975); Diana Russell, Sexual Exploitation: Rape, Child Sexual Abuse
and Workplace Harassment (1984); D. Russell and N. Van de Ven, Crimes against

278
 Notes to Pages 169-174

Women: Proceedings of the International Tribunal (1976); E. Schur, Labeling Women

Deviant: Gender, Stigma, and Social Control (1984); Edith Phelps, "Female Sex­
ual Alienation," in Women: A Feminist Perspective 16 Q. Freeman ed. 1975);
Adrienne Rich, "Compulsory Heterosexuality and Lesbian Existence," 5
Signs: Journal of Women in Culture and Society 4 (1980); E. Stanko, Intimate In­
trusions (1985) (called "No Complaints: Silencing Male Violence to Women"
in manuscript).
21. See Menachem Amir, Patterns in Forcible Rape 229-52 (1971); see also N .
Gager and C. Schurr, Sexual Assault: Confronting Rape in America (1976); Rus­
sell, Sexual Exploitation, note 20 above.
22. See Diana Russell, "The Prevalence of Rape in United States Revisited,"
8 Signs: Journal of Women in Culture and Society 689 (1983).
23. See sexual harassment references, note 20 above.
24. U.S. Merit Systems Protection Board, note 20 above.
25. See battery references, note 20 above.
26. See child sexual abuse references, note 20 above, especially Diana Rus­
sell, "Incidence and Prevalence of lntrafamilial and Extrafamilial Sexual
Abuse of Female Children."
27. Adrienne Rich, "Cartographies of Silence," in The Dream of a Common
Language 16, 17 (1978).
28. See Florence Rush, The Best-Kept Secret: Sexual Abuse of Children (1980).
See also Jeffrey Masson, The Assault on Truth: Freud's Suppression of the Seduction
Theory (1983).
29. See D. Finkelhor, Child Sexual Abuse: Theory and Research (1984); D. Lock­
wood, Prison Sexual Violence 117 (1980): "For the player [the pimp-type prison
rapist] to operate his game, however, he must 'feminize' his object of inter­
est. We must remember that prisoners consider queens to be women, not
men. As a consequence, the one who dominates the queen is a 'man.' Players
live according to norms that place men who play female roles in submissive
positions . . . The happy conclusion . . . is for the target to become a 'girl'
under his domination, a receptacle for his penis, and a female companion to
accentuate his masculinity." See also Jacobo Timmerman, Prisoner without a
Name, Cell without a Number (1981).
30. See Employment Standards Administration, U.S. Department of Labor,
Handbook on Women Workers (1975); U.S. Department of Labor, Women's Bureau
Bulletin 297 (1975 and 1982 update).
31. "Introduction," note 18.
32. Foucault, "The West and the Truth of Sex," 20 Sub-Stance 5 (1978).
33. This became a lot clearer to me after reading Margaret Baldwin, "The
Sexuality of Inequality: The Minneapolis Pornography Ordinance," 2 Law and
Inequality: Journal of Theory and Practice 629 (1984). This paragraph is directly
indebted to her insight and language there.
34. Andrea Dworkin, Pornography: Men Possessing Women (1981).
35. For a fuller development of this critique, see "Not a Moral Issue."

279
Notes to Pages 174-177

36. Miller v. California, 413 U.S. 15, 24 (1973).

37. See The Report of the Presidential Commission on Obscenity and Pornography
(1970).
38. For the specific statutory language, see "Not a Moral Issue," note 1,
and note 1 above.
39. See, e.g. , Gloria Steinem, "Erotica v. Pornography," in Outrageous Acts
and Everyday Rebellions 219 (1983).
40. See Indianapolis Ordinance, "Not a Moral Issue," note 1 .
41 . See Catharine A . MacKinnon, Sexual Harassment of Working Women 101-
41 (1979).
42. For a lucid discussion of subordination, see Andrea Dworkin, "Against
the Male Flood: Censorship, Pornography, and Equality," 8 Harvard Women's
Law Journal 1 (1985).
43. If this part stood alone, it would, along with its support, among other
things, have to be equally imposed-an interesting requirement for an equal­
ity law, but arguably met by this one. See Carey v. Brown, 447 U.S. 455 (1980);
Police Department of Chicago v. Mosley, 408 U.S. 92 (1972); Kenneth Karst,
"Equality as a Central Principle in the First Amendment," 43 University of
Chicago Law Review 20 (1975).
44. See KPNX Broadcasting Co. v. Arizona Superior Court, 459 U.S. 1302
(1982) (Rehnquist as Circuit Justice deni�d application to stay Arizona judge's
order that those involved with heavily covered criminal trial avoid direct con­
tact with press; mere potential confusion from unrestrained contact with
press is held to justify order); New York v. Ferber, 458 U.S. 747 (1982) (child
pornography, defined as promoting sexual performance by a child, can be
criminally banned as a form of child abuse); F.C.C. v. Pacifica Found. , 438
U.S. 726 (1978) ("indecent" but not obscene radio broadcasts may be regu­
lated by F.C.C. through licensing); Young v. American Mini Theatres, Inc.,
427 U.S. 50 (1976) (exhibition of sexually explicit "adult movies" may be re­
stricted through zoning ordinances); Gertz v. Robert Welch, Inc., 418 U.S.
323, 347 (1974) (state statute may allow private persons to recover for libel
without proving actual malice so long as liability is not found without fault);
Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973) (sex­
designated help-wanted columns conceived as commercial speech may be
prohibited under local sex discrimination ordinance); Miller v. California, 413
U.S. 15, 18 (1973) (obscenity unprotected by First Amendment in case in
which it was "thrust by aggressive sales action upon unwilling [view­
ers] . . . . "); Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 387 (1969)
(F.C.C. may require broadcasters to allow reply time to vindicate speech in­
terests of the public: "The right of free speech of a broadcaster, the user of a
sound truck, or any other individual does not embrace a right to snuff out
the free speech of others."); Ginzburg v. United States, 383 U.S. 463, 470
(1966) (upholding conviction for mailing obscene material on "pandering"
theory: "[T]he purveyor's sole emphasis [is] on the sexually provocative as­
pects of his publications."); Roth v. United States, 354 U.S. 476, 487 (1957)
(federal obscenity statute is found valid; obscene defined as "material which

280
 Notes to Pages 177-178

deals with sex in a manner appealing to prurient interest"); Beauharnais v.

Illinois, 343 U.S. 250 (1952) (upholding group libel statute); Chaplinsky v.
New Hampshire, 315 U.S. 568 (1942) (a state statute outlawing "fighting
words" likely to cause a breach of peace is not unconstitutional under the
First Amendment); Near v. Minnesota, 283 U.S. 697 (1931) (Minnesota stat­
ute permitting prior restraint of publishers who regularly engage in publica­
tion of defamatory material is held unconstitutional; press freedom out­
weighs prior restraints in all but exceptional cases, such as national security
or obscenity); for one such exceptional case, see United States v. Progressive,
Inc., 486 F. Supp. 5 (W.O. Wis. 1979) (prior restraint is allowed against pub­
lication of information on how to make a hydrogen bomb, partially under
"troop movements" exception); Schenck v. United States, 249 U.S. 47, 52
(1919) ("clear and present dangers" excepted from the First Amendment:
"The most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic").
45. See Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); Pitts­
burgh Press Co. v. Human Relations Comm'n, 413 U.S. 376 (1973); Konigs­
berg v. State Bar of California, 366 U.S. 36, 49-51 (1961).
46. After the delivery of the Biddle Lecture, an Indiana federal court de­
clared the ordinance unconstitutional in a facial challenge brought by the
"Media Coalition," an association of publishers and distributors. The ordi­
nance is repeatedly misquoted, and the misquotations are underscored to
illustrate its legal errors. Arguments not made in support of the law are in­
vented and attributed to the city and found legally inadequate. Evidence of
harm before the legislature is given no weight at all, while purportedly being
undisturbed, as an absolutist approach is implicitly adopted, unlike any ex­
isting Supreme Court precedent. To the extent that existing law, such as ob­
scenity law, overlaps with the ordinance, even it would be invalidated under
this ruling. And clear law on sex equality is flatly misstated. The opinion
permits a ludicrous suit by mostly legitimate trade publishers, parties whose
interests are at most tenuously and remotely implicated under the ordinance,
to test a law that directly and importantly would affect others, such as por­
nographers and their victims. The decision also seems far more permissive
toward racism than would be allowed in a concrete case even under existing
law, and displays blame-the-victim misogyny: "Adult women generally have
the capacity to protect themselves from participating in and being personally
victimized by pornography . . ." American Booksellers v. Hudnut, 598 F.
Supp. 1316, 1334 (S.D. Ind. 1984). For subsequent developments, see "The
Sexual Politics of the First Amendment."
47. See, e.g., Title IX of the Educ. Amends. of 1972, 20 U.S. C. §§ 1681-1686
(1972); Equal Pay Act, 29 U.S. C. § 206(d) (1963); Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1976). Many states have equal
rights amendments to their constitutions, see Barbara Brown and Ann Freed­
man, "Equal Rights Amendment: Growing Impact on the States," 1 Women's
Rights Law Reporter 1 . 63, 1.63-1.64 (1974); many states and cities, including
Minneapolis and Indianapolis, prohibit discrimination on the basis of sex.

281
Notes to Pages 178-179

See also Roberts v. United States Jaycees, 468 U.S. 609 (1984) (recently recog­
nizing that sex equality is a compelling state interest); Frontiero v. Richard­
son, 411 U.S. 677 (1973); Reed v. Reed, 404 U.S. 71 (1971); U.S. Const.
amend. XIV.
48. See City of Los Angeles v. Manhart, 435 U.S. 702, 711 (1978) (City water
department's pension plan was found discriminatory in its "treatment of a
person in a manner which but for that person's sex would be different"). See
also Orr v. Orr, 440 U.S. 268 (1979); Barnes v. Costle, 561 F.2d 983 (D.C. Cir.
1977).
49. See Plessy v. Ferguson, 163 U.S. at 551; Wechsler, note 6 above, at 33.
50. In each case cited in note 44 above (except Near), a recognized harm
was held to be more important than the speech interest also at stake. The
Supreme Court has also recognized, if not always in holdings, that the right
to privacy or fair trial can outweigh the right to freedom of the press. See
Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (performer
has a proprietary interest in his act that outweighs press interest in publish­
ing it); Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (restraint on press
is unconstitutional); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491
(1975) (no civil liability for privacy violations against broadcaster for truth­
fully publishing court records in which daughter of plaintiff was rape victim,
but: "In this sphere of collision between claims of privacy and those of the
free press, the interests on both sides are plainly rooted in the traditions and
significant concerns of our society"); Time, Inc. v. Hill, 385 U.S. 374 (1967)
(magazine has no liability for inaccurate portrayal of private life unless know­
ingly or recklessly false). But see KPNX Broadcasting Co., 459 U.S. 1302
(1982). See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)
(state may not require exclusion of press and public from courtroom during
testimony of minor victim of sex offense); Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555 (1980).
The harm of defamatory speech to personal reputation is also the reason
libel is actionable notwithstanding First Amendment protections of speech.
See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); "[D]efamation has
long been regarded as a form of 'psychic mayhem; not very different in kind,
and in some ways more wounding, than physical mutilation." Tribe, note 9
above, at 649 (discussing issues raised by Gertz). In Los Angeles v. Taxpayers
for Vincent, 466 U.S. 789 (1984), the City of Los Angeles' aesthetic interests
outweighed a political candidate's speech right to post signs on public prop­
erty.
51 . Under the standard in Miller, 413 U.S. 15 (1973), obscenity prohibits
materials that, inter alia, are "patently offensive" and appeal to the "prurient
interest," id. at 24, terms with no apparent determinate meaning. Offensive­
ness is subjective. Prurience is a code word for that which produces sexual
arousal. See F. Schauer, "Response: Pornography and the First Amendment,"
40 University of Pittsburgh Law Review 605, 607 (1979). See also Justice Brennan's
discussion of the vagueness of terms like "lewd" and "ultimate," in Paris
Adult Theatre I, 413 U.S. at 86 (Brennan, J., dissenting). "Community stan-

282
 Notes to Page 179

dards," also part of the Miller test, is a standard that is open-ended by design.
In F. C. C. v. Pacifica Found., 438 U.S. 726 (1978), the Supreme Court allowed
a regulatory body to construe the meaning of the term "indecent," which
represents a social value judgment. In Ferber, 458 U.S. 747 (1982), the Su­
preme Court did not seem at all bothered by the fact that "lewd," as in "lewd
exhibition of the genitals" in the statute's definition of sexual performance,
was statutorily undefined, 458 U.S. at 765. Beauharnais, 343 U.S. 250, 251
(1952), sustained a law that prohibited the publishing, selling, or exhibiting
in any public place of any publication that "portrays depravity, criminality,
unchastity, or lack of virtue of a class of citizens of any race, color, creed or
religion." 343 U.S. at 251. Although doubt has been cast on the vitality of
Beauharnais-see, e.g., Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978)­
"Beauharnais has never been overruled or formally limited in any way." Smith
v. Collin, 436 U.S. 953 (1978) (Blackmun, J., joined by Rehnquist, J., dissent­
ing from denial of stay of Court of Appeals order).
52. Most obscenity laws provide criminal sanctions, with the appropriate
procedural requirements. Roth, 354 U.S. at 478 n.l; Miller, 413 U.S. at 16 n . l .
However, the injunction proceeding i n Paris Adult Theatre I, 413 U.S. 49
(1973), was civil, and the statutory scheme discussed in Freedman v. Mary­
land, 380 U.S. 51 (1964) (under which prior restraints imposed by a censor­
ship board were legal only if certain procedural requirements were met) was
noncriminal. Of course, all a civil injunction can do under our ordinance is
stop future profit-making or assault. A potential award of civil damages
under our ordinance is not a negligible sanction; it is designed to deter vic­
timization, but differently than potential incarceration does. A major purpose
of pornography is to make money. Depriving the pornographers of profits
by empowering those whom they exploit to make them, directly counteracts
one reason pornographers engage in the exploitation at all, in a way that
potential incarceration does not. Another not inconsiderable benefit of a civil
rather than criminal approach to pornography is that criminal prohibitions,
as well as eroticizing that which they prohibit, tend to create underground
markets wherein the prohibited commodity is sold at inflated prices, passed
hand to hand in secret settings, and elevated in value. If it were not possible
to make or use pornography as it now is without exploiting its victims as
they are exploited now, a civil prohibition would create no underground.
This approach does not solve the problems of terror and intimidation that
keep victims from suing, nor does it give them resources for suit. It does
define who is hurt directly (versus the amorphous "community" that is con­
sidered hurt on the criminal side), gives victims (and lawyers) the incentive
of a potential civil recovery, and leaves control over the legal actions as much
as possible in the hands of the victims rather than the state. For further views
on civil as opposed to criminal approaches to this area, see the opinions of
Justice Stevens in F.C.C. v. Pacifica Found., 438 U.S. 726 (1978); Young v.
American Mini Theatres, Inc., 427 U.S. 50 (1976); and, most fully, his dissent
in Smith v. United States, 431 U.S. 291, 317 (1977) (criticizing community
standards in a criminal context, but approving their "flexibility [as] a desir-

283
Notes to Page 179

able feature of a civil rule designed to protect the individual's right to select
the kind of environment in which he wants to live"). Some who oppose or
are critical of obscenity restrictions have found it preferable to first adjudicate
pornographic materials obscene in a civil or administrative proceeding. See
Miller v. California, 413 U.S. 15, 41 (1973) (Douglas, J., dissenting); Z. Cha­
fee, 1 Government and Mass Communications 228-31 (1947); William Lockhart,
"Escape from the Chill of Uncertainty: Explicit Sex and the First Amend­
ment," 9 Georgia Law Review 533, 569-86 (1975); William Lockhart and Robert
McClure, "Censorship of Obscenity," 45 Minnesota Law Review 5, 105-07
(1960); American Civil Liberties Union, Policy No. 4(c) (2) (Feb. 14, 1970) (civil
proceeding seen as the least restrictive method of censorship).
53. The harm of obscenity recognized in Miller, 413 U.S. 15 (1973), was the
"danger of offending the sensibilities of unwilling recipients or of exposure
to juveniles." Id. at 19. This statement was adduced from the Presidential
Commission on Obscenity finding that it could not be concluded that ob­
scenity causes harm. " [The] Commission cannot conclude that exposure to
erotic materials is a factor in the causation of sex crime or sex delinquency."
Report of the Presidential Commission on Obscenity and Pornography 27 (1970). The
harm in F. C. C. v. Pacifica Found. , 438 U.S. 726 (1978), was the possible over­
hearing of indecent speech by children, since radio intrudes into the home.
Id. at 748-50. In United States v. Orito, 413 U.S. 139, 143 (1973), a federal
ban on interstate transportation of obscene materials for private use was sus­
tained on "a legislatively determined risk of ultimate exposure to juveniles
or to the public." Throughout, exposure of juveniles to obscenity is assumed
to be a risk, but the harm that exposure does per se is unspecified, not to say
unsubstantiated and not in evidence. The harm recognized in Ferber, 458 U.S.
747 (1982), appears to be that done to a minor male by being seen having
sex. The film depicted two boys masturbating; the Court concluded that this
was "a permanent record of children's participation and the harm to the child
is exacerbated by [its] circulation." Id. at 759. This same harm is at times
characterized by the Court as "psychological," id. at 759 n.10, but is other­
wise unspecified and in evidence only in the form of the film. In Chaplinsky,
315 U.S. 568 (1942), the harm apparently was a combination of the offense
given by the speech itself with the risk of imminent breach of the peace oc­
casioned by its utterance. As to group libel, the harm of the racist leaflet to
the group as a whole recognized in Beauharnais, 343 U.S. 250 (1952), was
inferred from observed racial inequality and racial unrest. Id. at 258-61.
54. See Galloway and Thornton, "Crackdown on Pornography-A No-Win
Battle," U.S. News and World Report, June 4, 1984, at 84; see also J. Cook, "The
X-Rated Economy," Forbes, Sept. 18, 1978, at 81 ($4 billion per year); Martha
Langelan, "The Political Economy of Pornography," Aegis: Magazine on Ending
Violence against Women 5 (1981) ($7 billion per year); "The Place of Pornogra­
phy," Harper's, Nov. 1984, at 31 ($7 billion per year).
55. Flags, seen as symbols for the nation rather than mere pieces of
brightly colored cloth or even as personal property, receive special solicitude
by legislatures and courts, as to both the patriotic value of their protection

284
 Notes to Pages 179-181

and the expressive value of their desecration. See, e.g., Spence v. Washing­
ton, 418 U.S. 405 (1974); Street v. New York, 394 U.S. 576 (1969). I have not
considered the applicability of this line of cases here, in light of my view that
women in pornography are not simply symbols of all women but also
are women. Of course, under male supremacy, each woman represents all
women to one degree or another, whether in pornography or in bed or walk­
ing down the street, because of the stereotyping intrinsic to gender inequal­
ity. But that does not mean that, in a feminist perspective, each woman,
including those in pornography, can be treated solely in terms of her repre­
sentative or symbolic qualities, as if she is not at the same time alive and
human. An underlying issue has to do with the extent to which women's
bodies must be freely available as vocabulary and imagery for the expression
of others, such that once they are so converted, whatever the means, women
retain no rights in their use or abuse, in the face of evidence of the harm from
such expropriation and exposure ranging from the individual so used to
anonymous women subsequently used or treated or seen in light of their
availability for such use. (Given the extent to which women now must be
men's speech, one might rather be a flag.)
56. Ferber, 458 U.S. 747 (1982).
57. II Hearings 75 (testimony of a named former prostitute).
58. Linda Lovelace and Michael McGrady, Ordeal (1980).
59. As of September, 1978, Deep Throat had grossed a known $50 million
worldwide. See Cook, note 54 above. Many of its profits are untraceable. The
film has also recently been made into a home video cassette.
60. Priscilla Alexander, coordinator for the National Organization for
Women's Task Force on Prostitution, said she was told this by a woman por­
nography model. Panel on Pornography, National Association of Women
and the Law, Los Angeles, Apr. 1, 1984.
61. "In the movies known as snuff films, victims sometimes are actually
murdered." 130 Cong. Rec. S13192 (daily ed. Oct. 3, 1984) (statement of Sen­
ator Specter introducing the Pornography Victims Protection Act). Informa­
tion on the subject is understandably hard to get. See People v. Douglas,
Felony Complaint No. NF 8300382 (Municipal Court, Orange County, Cal.,
Aug. 5, 1983); "Slain Teens Needed Jobs, Tried Porn" and "Two Accused of
Murder in 'Snuff' Films," Oakland Tribune, Aug. 6, 1983, see "Not A Moral
Issue," note 56; L. Smith, "The Chicken Hawks" (1975) (unpublished manu­
script).
62. "[W]e were all introduced to prostitution through pornography, there
were no exceptions in our group, and we were all under 18 . . . There were
stacks of films all over the house, which my pimp used to blackmail people
with." Il Hearings 70, 79 (testimony of a named former prostitute). Kathleen
Barry, author of Female Sexual Slavery (1979), refers to "season[ing]" to pros­
titution by "blackmailing the victim by threatening to send [photographs of
coerced sex] to her family, and selling them to the pornographers for mass
production." I Hearings 59 (letter of Kathleen Barry). A worker with adoles­
cent prostitutes reports: "These rapes are often either taped or have photo­
graphs taken of the event. The young woman when she tries to escape or

285
Notes to Page 181

leaves is told that either she continues in her involvement in prostitution or

those pictures will be sent to her parents, will be sent to the juvenile court,
will be used against her. And out of fear she will continue her involvement
in prostitution." III Hearings 77 (testimony of Sue Santa).
63. Speech by Andrea Dworkin, in Toronto, Feb. 1984 (account told to
Dworkin), reprinted in Healthsharing, Summer 1984, at 25.
64. Linda Marchiano, Panel on Pornography, Stanford University, Apr. 2,
1982.
65. "When Deep Throat was released, we [prostitutes] experienced men jok­
ing and demanding oral sex." II Hearings 74 (testimony of a named former
prostitute). Increasing reports of throat rape in emergency rooms followed
the exhibition of Deep Throat. One woman told Flora Colao, C.S. W., an emer­
gency room nurse in New York City at the time, that the men who raped her
said, as she was becoming unconscious, "Let's deep-throat her before she
passes out." I Hearings 60 (Exhibit 13 [letter], Nov. 10, 1983). She also re­
ported women dead of suffocation from rape of the throat. One woman
wrote the Minneapolis City Council the day after Marchiano's testimony be­
fore it, in a letter typical of the accounts received by Marchiano since the
publication of Ordeal: "I read about Linda Lovelace in our morning paper
which said that she testified for women's civil rights. I only hope that she is
able to undo some of the terrible damage that was done by making her
movie. Those years started days of misery for me and a lot of my friends.
Linda was so convincing that she enjoyed what she was doing that our hus­
bands began to think they were cheated in life with us upper middle class
wives. 'I'm not satisfied!' 'You don't know how to be a woman.' And every
young girl in town was brainwashed to show our husbands that they could
be a better 'Linda Lovelace' than the wife they had at home. I saw a lot of
heartbreaks, nervous breakdowns to women that were being coerced in
sex-many tranquilizers taken because they had to keep up with the times
or else. Being forced to do something they don't enjoy or 'someone else will
gladly go out with me!' I even saw a business fail because the husband was
so preoccupied with this type of sex. Why do you think women's lib
evolved-women became tired of being exploited, brainwashed and now
Linda says she didn't enjoy it. It's too late for us 50 year olds, but help the
young girls not to wreck their lives by letting boyfriends and husbands force
them to be recepticals [sic] instead of cherished wives." Letter from "a bitter
wife" to the Minneapolis City Council (Dec. 14, 1983).
66. The credibility of t�e pornography, as compared with that of the
women in it, is underlined by the following: Vanessa Williams, formerly Miss
America, lost her title when pornographic pictures of her were published by
Penthouse. Williams says she posed for the sexually explicit pictures under
the representation that they were for private use, at most for silhouettes, and
that she did not consent to their publication. Brian DePalma, director of
Dressed to Kill and Body Double, both "splatter" films of sexualized violence
against women, who should know what it takes for a director to create an
image of an interaction so that it looks like sex, was interviewed concerning

286
 Notes to Pages 181-183

the Williams episode. Asked about her version of the events, DePalma said:
"I believed her until I saw the pictures." '"Double' Trouble: Brian DePalma
Interviewed by Marcia Pally," 20 Film Comment, Sept.-Oct. 1984, at 13, 16.
67. I am indebted for this argument's development to Margaret Baldwin,
"Pornography: More Than a Fantasy," The Hennepin Lawyer, Mar.-Apr. 1984,
at 8, 25.
68. This question and the paragraph that follows draw directly on Andrea
Dworkin's speech, note 63 above.
69. I Hearings 56.
70. National Task Force on Child Pornography, "Let's Protect Our Chil-
dren" 17 (1983).
71. 458 u.s. 747 (1982).
72. Id. at 759.
73. ld. at 747.
74. Id. at 761.
75. Id.
76. Id. at 763-64.
77. The harm of child pornography cannot be stopped effectively without
also addressing the pornography of adult women. Adult pornography has
been found commonly used "to show, teach or induce the children into the
sexual activity or pornographic modeling" by child sex rings. See A. Burgess,
C. Hartman, M. McCausland, and P. Powers, "Response Patterns in Children
and Adolescents Exploited through Sex Rings and Pornography," 141 Amer­
ican Journal of Psychiatry 656, 657-58 (1984). Given what is done in pornogra­
phy, it is even more difficult than usual to distinguish between adults and
children. Adult women are infantilized in pornography; children are dressed
and used as if they were adult women. The resulting materials are then used
against both, and target both for abuse relatively interchangeably. For in­
stance, the "shaved pussy" genre, in which adult women's genitals are made
to resemble those of young girls, converges with the "Lolita" or "cherry tarts"
genre, in which young girls are presented resembling the pornographers'
image of adult female sexuality. It also seems worth observing that a law that
has the abuse disappear legally when its victims get one day older is difficult
to administer effectively.
78. "The forcing of pornography on any woman, man, child, or transsex­
ual in any place of employment, in education, in a home, or in any public
place." Code of Indianapolis and Marion County, note 1 above.
Section 16-17(a) states: "A complaint charging that any person has en­
gaged in or is engaging in a discriminatory practice . . . may be filed . . . in
any of the following circumstances: . . . (7) in the case of forcing pornogra­
phy on a person, against the perpetrator(s) and/or institution."
79. III Hearings 71, 76 (testimony of Charlotte K. and Sue Santa).
80. II Hearings 85-90 (testimony of Jackie B.).
81. Along with events like those described in the text accompanying note
80, above, these often arise under the rubric of sexual harassment. See, e.g.,
MacKinnon, Sexual Harassment of Working Women, note 20 above, at 29. AI-

287
Notes to Page 183

though not providing the same range of relief, sexual harassment cases rec­
ognize concerns related to those underlying the Minneapolis ordinance: "The
. . . workplace was pervaded with sexual slur, insult and innuendo, and [the
plaintiff] Katz was personally the object of verbal sexual harassment by her
fellow controllers. This harassment took the form of extremely vulgar and
offensive sexually related epithets addressed to and employed about Katz by
supervisory personnel as well as by other controllers. The words used were
ones widely recognized as not only improper but as intensely degrading,
deriving their power to wound not only from their meaning but also from
'the disgust and violence they express phonetically."' Katz v. Dole, 709 F.2d
251, 254 (4th Cir. 1983) (quoting C. Miller and K. Swift eds., Words and Women
109 [1977]).
Do such words become not injurious by virtue of appearing in print? To an
extent, Tribe's observation about the words whose regulation was allowed in
Cluzplinsky applies here: "[S]uch provocations are not part of human discourse
but weapons hurled in anger to inflict injury or invite retaliation." Tribe, note
9 above, at 605. The fact that in the case of pornography, the projectiles
hurled at women are other women, or constructions of one's own gendered
anatomy, puts them on a slightly different plane and also helps to explain
why pornography's injury has neither been seen by its perpetrators nor re­
taliated against by its victims: the injury it inflicts, it inflicts in such a humil­
iating and undermining way that it disables retaliation. Silence has been the
usual response.
82. "Women were forced constantly to enact specific scenes that men had
witnessed in pornography. They would direct women to copy postures and
poses of things they had seen in magazines." II Hearings 73 (testimony of a
named former prostitute).
83. Letter from Marvin Lewis to Catharine MacKinnon (Dec. 7, 1983). At­
torney Lewis described to me situations in which therapists had women pa­
tients act out scenes from The Story of 0.
84. "The pornographic view ;:,f women is one that is prevalent within the
medical community unfortunately. This is expressed by the kinds of jokes
that are made about women and their bodies, especially when they are under
anesthesia and undergoing surgical procedures. This view includes seeing
women as not worthy of respect and also seeing them primarily in terms of
their sexual functioning. Several years ago when I was teaching at the Rut­
gers Medical School there was a week long sexuality program planned an­
nually for students. The first day of this program consisted of all-day viewing
of pornographic movies. The intent was to "de-sensitize" the students to
sex." Letter from Michelle Harrison, M.D., to the Minneapolis City Council
(Dec. 9, 1983).
See also P. Bart, "From Those Wonderful People Who Brought You the Va­
ginal Orgasm: Sex Education for Medical Students" 2 (1976) (paper presented
at the meetings of the American Sociological Association, New York). "When
I was asked to participate in the sex education program at the University of
Illinois 6 years ago it was a joint venture of Gynecology and Psychiatry and

288
 Notes to Pages 183-184

its primary purpose was to 'desensitize' the medical students. My first

thought was, 'Aren't they insensitive enough as it is?' The term, however,
has a technical meaning. It means that the subject will not react emotionally
when presented with certain stimuli that previously she/he had such reac­
tions to . . . In order to achieve this purpose the students were shown porno
films." The specifics in the text are drawn from examples many people have
recounted to me as a standard part of the program customarily used in med­
ical schools.
85. Students and clients reported this to me in the course of my research
into sexual harassment in education.
86. See III Hearings 13-16 (testimony of Susan G.) (discussing sexual abuse
of an adult woman with whom she lived).
87. See, e.g., III Hearings 69-74 (testimony of Charlotte K.). Now tell me no
girl was ever ruined by a book. See also United States v. Roth, 237 F.2d 796,
812 (2d Cir. 1956) (Frank, J., appendix to concurring opinion) ("Echoing Ma­
caulay, Jimmy Walker remarked that he had never heard of a woman seduced
by a book.") Seduction here is the term that attributes consent or acquies­
cence or enjoyment of rape to the rape victim.
88. See II Hearings 90-100. A woman who lived in a neighborhood into
which pornography had been zoned said, if you think pornography is harm­
less, "you move into my neighborhood and I will move into yours." Testi­
mony of Shannon M., id. at 99.
89. Averting one's eyes is supposed to be an alternative to the injury, as it
may well have been in Cohen v. California, 403 U.S. 15, 21 (1971) ("Those in
the Los Angeles courthouse could effectively avoid further bombardment of
their sensibilities simply by averting their eyes"). Or, less so but still argu­
ably, in Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975) (the screen
was not "so obtrusive as to make it impossible for an unwilling individual to
avoid exposure to it") (quoting Redrup v. New York, 386 U.S. 767, 769
[1967]). The situations that our ordinance is premised upon and is designed
to address directly are more like that of the woman who was tied to a chair
in front of a video screen in her home and forced to watch pornography; see,
e.g., III Hearings 24.
90. See Stanley v. Georgia, 394 U.S. 557 (1969) (right to privacy protects
possession of obscenity at home). The Court seems to assume that Mr. Stan­
ley is at home alone.
91. Many Jewish citizens, survivors of the Nazi extermination, live in Sko­
kie, Illinois. The town's attempts to keep Nazis from demonstrating there
produced years of local ordinances, all ultimately held unconstitutional. Dis­
senting from a denial of certiorari, Justice Blackmun said: "On the one hand,
we have precious First Amendment rights vigorously asserted . . . On the
other hand, we are presented with evidence of a potentially explosive and
dangerous situation, inflamed by unforgettable recollections of traumatic ex­
periences in the second world conflict." Smith v. Collin, 439 U.S. 916, 918
(1968). Observing that citizens had asserted "that the proposed demonstra­
tion is scheduled at a place and in a manner that is taunting and overwhelm-

289
Notes to Page 184

ingly offensive to the citizens of that place," he thought their claim deserved
to be heard, "for 'the character of every act depends upon the circumstances
in which it is done."' Id. at 919 (quoting Schenck v. United States, 249 U.S.
47, 52 [1919]).
92. II Hearings 112 (testimony of Mags D.).
93. Code of Indianapolis and Marion County, ch. 16, § 16-3(g) (as
amended, June 11, 1984) provides: "Assault or physical attack due to pornog­
raphy: The assault, physical attack, or injury of any woman, man, child, or
transsexual in a way that is directly caused by specific pornography." No
damages or compensation for loss is recoverable from traffickers under this
section "unless the complainant proves that the respondent knew or had
reason to know that the materials were pornography." Id. at § 16-3(g)(8).
Pornography that caused the acts can be reached under this provision, al­
though it would be very difficult to prove "direct cause."
94. "The First Amendment demands more than a horrible example or two
of the perpetrator of a crime of sexual violence, in whose pocket is found a
pornographic book, before it allows the Nation to be saddled with a regime
of censorship." Memoirs v. Massachusetts, 383 U.S. 413, 432 (1966) (Douglas,
J., concurring). One wonders how many bodies must pile up before individ­
ual victims will be allowed to enjoin the proven cause, simply because that
cause is a book. See also id. at 452 (Clark, J., dissenting) (noting repeated
reports "that pornography is associated with an overwhelmingly large num­
ber of sex crimes").
95. II Hearings 43 (testimony of Rita M.).
96. III Hearings 18-19 (testimony of Carol L.).
97. Ongoing research on sex offenders in Hennepin County, Minn., that
documents these similarities was presented by Candace Kruttschnitt to the
City of Minneapolis Task Force on Pornography, Mar. 13, 1984. The data are
consistent with that of all researchers who find it difficult to document dif­
ferences between sex offenders and populations of normal men on virtually
any dimension. See note 118 below. My analysis is that the few measurable
differences between these populations involve the likelihood of getting
caught for sex offenses more than the likelihood of committing them.
98. Only 9.5 percent of all rapes and rape attempts are reported. Diana
Russell, Sexual Exploitation 31 (1984). The reporting rate of most sexual vio­
lations is as low or lower. Six percent of extrafamilial child sexual assault and
2 percent of incestuous assault are reported to authorities. Id. at 172. See also
Judith Herman, Father-Daughter Incest 12-15 (1981). Another study estimates
that only 1 of every 270 incidents of wife abuse is ever reported to authorities.
See S. Steinmetz, The Cycle of Violence: Assertive, Aggressive, and Abusive Family
Interaction (1977) (referenced in E. Stanko, note 20 above, at 73). This is prob­
ably a low figure. Although 42 percent of federal employees had been sub­
jected to sexual harassment in the two years prior to one survey, 29 percent
in severe forms, most had not reported the behavior. U.S. Merit Systems
Protection Board, note 20 above, at 35, 71.

290
 Notes to Page 185

99. III Hearings 36 (testimony of Barbara Chester, director of the Rape and
Sexual Assault Center, Hennepin County, Minn.).
100. III Hearings 44-45 (testimony of Bill Seals, director of Sexual Assault
Services, Center for Behavior Therapy, Minneapolis, Minn.).
101. III Hearings 64 (testimony of Nancy Steele, therapist with sex offend­
ers).
102. Id.
103. III Hearings 88 (testimony of Michael Laslett, reading statement by
Floyd Winecoff, psychotherapist specializing in services for men).
104. Id. at 86.
105. III Hearings 44 (testimony of Bill Seals).
106. III Hearings 59 (testimony of Gerry Kaplan, executive director of Alpha
Human Services, an inpatient program for sex offenders).
107. Examples range from the seemingly correlational to the integral to the
causal. See, e.g., Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982), cert.
denied, 460 U.S. 1022 (1983), in which the court, in ruling on a challenge that
the prejudicial effect of pornography outweighed its probative value in alle­
gation of the rape of a six-year-old boy, stated: "We readily agree the material
was prejudicial, it could hardly be otherwise. But the argument that its pro­
bative value was lacking fades under scrutiny. This pornography and the
offense being tried had a clear correlation: the pornography depicted deviate
sexual acts by young males and the crime charged was deviate sexual acts of
a forty-two-year-old man and a six-year-old boy. More importantly, the por­
nography was used as the instrument by which the crime itself was solic­
ited-the child was encouraged to look at the pictures and then encouraged
to engage in it. The value of the evidence as proof of the crime is obvious."
277 Ark. at 124-25, 640 S.W.2d at 106.
In an action for statutory rape, the defendant cared for two children, seven
and six, "and while they were there had the children perform various sexual
acts with him and each other while he took photographs, some of which he
sent to foreign publishers of pornographic magazines." Qualle v. State, 652
P.2d 481, 483 (Alaska Ct. App. 1982). As to his own children: "Documents,
photographs, and films seized from Qualle's home in 1979 showed that he
had taken sexually explicit films and photographs of his children and had
tried to sell at least two rolls of such pictures to European companies. He
asked for money or pornographic magazines in exchange for his pictures.
One magazine ("Lolita") published a series of pictures of one of his daugh­
ters." Id. at 484. In State v. Natzke, 25 Ariz. App. 520, 522, 544 P.2d 1121,
1123 (1976), pornography was admissible in a rape case in which the defend­
ant's daughter "expressed a reluctance to perform the requested sexual acts
. . . appellant told her that these acts were all right and that 'everybody does
it,' and that as proof of this fact, appellant showed his daughter pictures and
magazines showing sexual activities." In People v. Reynolds, 55 Cal. App.
3d 357, 127 Cal. Rptr. 561 (1976), the defendant sought to suppress porno­
graphic pictures of victims in a prosecution for kidnapping and rape. "Ac-

291
Notes to Page 185

cording to Tracy, the suspect forced her to take some yellow capsules with a
can of cola, and she became groggy; he gave her pornography to read, and
at one point stopped the car to make a telephone call and she heard him say:
'I have got the girl' . . . When the officers searched his room they discovered
pornographic negatives and photographs, some of which depicted the Ko­
noske girls . . . More photographs were [later] found which were porno­
graphic." 55 Cal. App. 3d at 362, 365, 127 Cal. Rptr. at 564, 566. In another
case the defendant was charged, inter alia, with encouraging minors to par­
ticipate in pornographic films and to engage in sexual intercourse with him:
"Defendant showed pornographic films to two boys, and defendant was an
actor in one of them. He also showed a pornographic film to two of the girls
. . . He suggested to two of the girls that they become prostitutes. Defendant
had a movie camera set up to photograph his bed so that, 'in case some of
these young girls tried to say that he raped them, he would have this as proof
that he did not."' State v. Dobbs, 665 P.2d 1151, 1155, 1159 (N.M. Ct. App.
1983). In one case, the defendant was an Episcopal priest who ran a boy's
farm, which was supposedly for the benefit of wayward and homeless boys,
but was "maintained largely from funds raised . . . from the sale of photo­
graphs and slides of the children to some 200 or more 'sponsors.' These pho­
tographs depicted the boys (most of whom were eleven to sixteen years of
age when photographed) posed in the nude and engaged in various acts of
simulated or actual fellatio and sodomy." Vermilye v. State, 584 S.W.2d 226,
228 (Tenn. Crim. App. 1979).
See also People v. Cramer, 67 Cal. 2d 126, 127, 429 P.2d 582, 583, 60 Cal.
Rptr. 230, 231 (1967) ("At the house, they swam, and defendant served Phillip
vodka and 7-Up and showed him some Playboy magazines"); People v.
Hunt, 72 Cal. App. 3d 190, 195-196, 139 Cal. Rptr. 675, 677 (1977) (rape case
in which the "[d]efendant told her his name was John and that he was a
'porno' photographer . . . This time the defendant took a polaroid picture of
Chris (the victim) performing the act [oral copulation]"); People v. Mendoza,
37 Cal. App. 3d 717, 721, 1 12 Cal. Rptr. 565, 567 (1974) ("He then invited Tad
and Jim into his apartment, where he gave the boys candy and pointed out
a Playboy magazine centerfold photograph of a nude girl on the wall");
Whiteman v. State, 343 So. 2d 1340 (Fla. Dist. Ct. App.) (admissibility of
pornography in sexual battery of niece), cert. denied, 353 So. 2d 681 (Fla.
1977); Brames v. State, 273 Ind. 565, 406 N.E.2d 252 (1980) (attempt to intro­
duce evidence of rape defendant's prior visit to pornographic movie house
rejected as part of insanity plea); Allan v. State, 92 Nev. 318, 321, 549 P.2d
1402, 1404 (1976) (minor's testimony concerning defendant's past advances
admissible as "tending to show proof of a motive . . . wherein minors were
lured to appellant's quarters and, after being 'conditioned' by the showing of
his pornographic movies, subjected to his sexual desires"); Stein v. Beta Rho
Alumni Ass'n, 49 Or. App. 965, 968, 621 P.2d 632, 634 (1980) (personal injury
suffered to a burlesque dancer who performed for a fraternity after "a por­
nographic movie had been shown"). Finally, in Padgett v. State, 49 Ala. App.
130, 133, 269 So. 2d 147, 149 (Crim.), cert. denied, 289 Ala. 749, 269 So. 2d 154

292
 Notes to Page 185

(1972), a husband was convicted for shooting his wife, allegedly accidentally,
after he admittedly '"nagged' [her] about the girls in the Playboy magazine
'to try to irritate her."'
California's new spousal rape law, effective January 1980, has made many
reports of sexual violence in intimate contexts visible for the first time. "Beg­
lin was watching an X-rated movie [on cable TV] in the family room. Beglin
allegedly entered the bedroom, threw her [his wife] on the bed and bound
her. Beglin also ripped off her clothing and began taking nude photos of her,
[Prosecutor Alphonsus C.] Novick said. He then sexually assaulted her."
Brown, "Man on Trial Again on Wife Rape Count," Los Angeles Times, May
19, 1981. The husband was acquitted after claiming his wife consented. See
Kutzmann, "Beglin Innocent of Wife Rape," Costa Mesa Daily Pilot, May 29,
1981 . Evidence included testimony of crisis center workers and an emergency
room doctor and photos of her wrists and ankles, "allegedly marked from
being tied to a bed with ropes." The prosecutor said, "The case couldn't have
been any better . . . Unfortunately, we may have to wait until some wife is
severely mutilated or murdered until they'll see." LaGuire, "Spousal-Rape
Trial: Husband Cleared, Prosecutor Angered," Los Angeles Herald Examiner,
May 30, 1981, at A-1 . In Merced, California, Victor Burnham was convicted
of spousal rape for forcing his wife to have sex with neighbors and strangers
(a total of sixty-eight; see Wharton, "Sex Torture Charges Unveiled in Burn­
ham Trial," Sun-Star [Merced, Calif.], May 29, 1981) while he took photo­
graphs. She was also forced, through assault and holding their child hostage,
to stand on the corner and invite men in for sex, and to have sex with a dog.
See "Burnham Pleads No Contest on Charge of Possession of Automatic
Rifle," Sun-Star (Merced, Calif.), May 27, 1981; "Man Found Guilty of Spousal
Rape," Times-Delta (Tulare County, Calif.), June 6, 1981. She testified to "epi­
sodes of torture with a battery-charged cattle prod and an electric egg beater."
Wharton, "Sex Torture Charges," above. The defense attorney, "attempting
to show the jury there was no force used by the defendant, quizzed Mrs.
Burnham about photographs in the albums showing her smiling during the
sexual encounters. Mrs. Burnham said her husband threatened her with vio­
lence if she did not smile when the pictures were taken." "Wife Testifies in
Burnham Sex Case," Sun-Star (Merced, Calif.), May 28, 1981. Two of Burn­
ham's previous wives testified that he had forced them to commit similar
acts. ld. Burnham said Mrs. Burnham agreed to the acts; his lawyer showed
the photos to the jury to "see for themselves that the pictures were in com­
plete conformity with Becky's morals." See Wharton, "Guilty Verdict in Sex
Trial," Sun-Star (Merced, Calif.), June 5, 1981. Burnham's conviction was
overturned for failure to instruct sua sponte that he might have believed she
consented. People v. Burnham, 222 Cal. Rptr. 630 (Ct. App. 1986), (rev. de­
nied, May 22, 1986).
My general impression from rape and sexual harassment cases is that it
takes a minimum of three women testifying to the same or similar treatment
to create a chance of overcoming the man's credibility when he defends
against an accusation of sexual force by saying that the woman consented to

293
Notes to Pages 185-186

the act. (For example, some educational institutions have a covert policy of
not moving to investigate claims of sexual harassment of students by teachers
until they receive complaints from three different women about the same
man. They also do not keep reports over time except by memory.) In another
such case, "the woman testified that her husband tortured her on several
occasions, including sewing her to the bed, burning her with a lamp until
she blistered, cutting her with a razor blade and raping her with objects rang­
ing from a coat hanger to a hair brush . . . [He] used duct tape to keep her
from screaming . . . When Deputy Attorney Lela Henke asked the woman
where her husband got the idea to rape her with a coat hanger, the woman
replied they had seen it in a movie on cable television." "Wife Tells of As­
sault, Torture," Press Courier (Oxnard, Calif.), May 9, 1984. Similarly, a
woman told of her husband "sewing her sexual organs with needle and
yarn." Green, "Wife Describes Brutal Attacks by Mate as He Listens in
Court," Star Free Press (Ventura, Calif.), May 10, 1984.
Apparently 500 to 1,000 deaths occur each year from "autoerotic asphyxia,"
in which young men asphyxiate, usually from a noose around the neck,
something presented in pornography as producing intense erections. Usu­
ally "pornographic material is nearby." Brody, '"Autoerotic Death' of Youths
Causes Widening Concern," New York Times, Mar. 27, 1984, at C3.
108. State v. Herberg, 324 N.W.2d 346, 347 (Minn. 1982).
109. Code of Indianapolis and Marion County, note 1 above, § 16-3(4)
states: "Trafficking in pornography: the production, sale, exhibition, or dis­
tribution of pornography.
(A) City, state, and federally funded public libraries or private and public
university and college libraries in which pornography is available for study,
including on open shelves, shall not be construed to be trafficking in pornog­
raphy, but special display presentations of pornography in said places is sex
discrimination.
(B) The formation of private clubs or associations for purposes of traffick­
ing in pornography is illegal and shall be considered a conspiracy to violate
the civil rights of women.
(C) This paragraph (4) shall not be construed to make isolated passages or
isolated parts actionable." Section 16-17(b) states: "In the case of trafficking
in pornography, any woman may file a complaint as a woman acting against
the subordination of women and any man, child, or transsexual may file a
complaint but must prove injury in the same way that a woman is injured in
order to obtain relief under this chapter."
110. See, e.g., U.S. Commission on Obscenity and Pornography, Commis­
sion Report (1970); Commission on Obscenity and Film Censorship, Report,
Cmd. No. 7772 (1979) (United Kingdom).
1 1 1 . Regina v. Hicklin, 3 L.R.-Q.B. 360, 370 (1868) (obscene meaning "cal­
culated to produce a pernicious effect in depraving and debauching the
minds of the persons into whose hands it might come").
1 12. Roth v. United States, 354 U.S. 476, 501-02 (1956) (Harlan, J., concur­
ring in companion case of Alberts v. California); see also Jacobellis v. Ohio,

294
 Notes to Pages 186-187

378 U.S. 184, 202 (1964) (Warren, C.J., dissenting) ("[p]rotection of society's
right to maintain its moral fiber").
113. The data of John H. Court and of Berl Kutchinsky, both correlational,
reach contradictory conclusions on the relation between the availability of
pornography and the level of crime. Compare Kutchinsky, "The Effect of Easy
Availability of Pornography on the Incidence of Sex Crimes: The Danish Ex­
perience," 29 Journal of Social Issues 163 (1973); Kutchinsky, "Towards an Ex­
planation of the Decrease in Registered Sex Crimes in Copenhagen," 7 Tech­
nical Report of the Commission on Obscenity and Pornography 263 (1971) with
Court, "Pornography and Sex-Crimes: A Re-Evaluation in the Light of Recent
Trends around the World," 5 International Journal of Criminology and Penology
129 (1977). More recent investigations into the relationship between the cir­
culation rates of popular men's sex magazines and the rate of reported rape
establish a correlation between them in the United States. Larry Baron and
Murray Straus, "Sexual Stratification, Pornography, and Rape in the United
States" in Pornography and Sexual Aggression 185 (N. Malamuth and E. Don­
nerstein eds. 1984).
1 14. Roth v. United States, 354 U.S. 476, 485 (1957) (quoting Chaplinsky
v. New Hampshire, 315 U.S. 568, 572 [1942]). See also Paris Adult Theatre I
v. Slaton, 413 U.S. 49, 57-58 (1973) ("(T]here are legitimate state interests at
stake . . . (T]hese include the interest of the public in the quality of life").
1 15. Positivistic causality-linear, exclusive, unidirectional-has become
the implicit standard for the validity of connection between pornography and
harm. This standard requires the kind of control that can be achieved only,
if at all, in laboratory settings. When it is found there, as it has been, that
pornography causes harm (see note 117 below), the objection is heard that
laboratory settings are artificial. But their artificiality is what makes a conclu­
sion about causality possible under this causal model. In real-world settings,
a relation of linear consequentiality between pornography and harm is sel­
dom sufficiently isolable or uncontaminated-indeed, seldom even suffi­
ciently separable, the pornography and its impact being so pervasive and
interwined-to satisfy this standard. I am suggesting that the positivistic
model of causation may be inappropriate to the social reality of pornography.
See also Werner Heisenberg, The Physical Principles of Quantum Theory 63 (1930);
Morton Horowitz, "The Doctrine of Objective Causation," in The Politics of
Law 201 (David Kairys ed. 1982).
116. Major sources are Malamuth and Donnerstein, Pornography and Sexual
Aggression, note 1 13 above; Dolph Zillman, Connections Between Sex and
Aggression (1984); Edward Donnerstein and Leonard Berkowitz, "Victim Re­
actions in Aggressive Erotic Films as a Factor in Violence against Women,"
41 Journal of Personality and Social Psychology 710-24 (1981); Neil M. Malamuth
and John H. Check, "The Effects of Mass Media Exposure on Acceptance of
Violence against Women: A Field Experiment," 15 Journal of Research on Per­
sonality 436-46 (1981); Neil M. Malamuth and Edward Donnerstein, "The Ef­
fects of Aggressive-Pornographic Mass Media Stimuli," 15 Advances in Ex­
perimental Social Psychology 103 (1982); Diana Russell, "Pornography and

295
Notes to Page 187

Violence: What Does the New Research Say?" in Take Back the Night 216 (L.
Lederer ed. 1983); Dolph Zillman and Jennings Bryant, "Pornography, Sexual
Callousness, and the Trivialization of Rape," 32 Journal of Communication 16-
18 (1982); I Hearings 13-45 (testimony of Edward Donnerstein); Daniel Linz,
Edward Donnerstein, and Steven Penrod, "The Effects of Long-Term Expo­
sure to Filmed Violence against Women" Journal of Personality and Social Psy­
chology (forthcoming).
117. In addition to the references listed in note 116 above, see E. Donner­
stein and J. Hallam, "The Facilitating Effects of Erotica on Aggression Toward
Females," journal of Personality and Social Psychology 1270 (1978); R. Geen, D.
Stonner, and G. Shope, "The Facilitation of Aggression by Aggression: Evi­
dence against the Catharsis Hypothesis," 31 journal of Personality and Social
Psychology 721 (1975); B. S. Sapolsky and Dolph Zillman, "The Effect of Soft­
Core and Hard-Core Erotica on Provoked and Unprovoked Hostile Behav­
ior," 17 Journal of Sex Research 319 (1981); Dolph Zillman, J. L. Hoyt, and K. B.
Day, "Strength and Duration of the Effect of Aggressive, Violent, and Erotic
Communications on Subsequent Aggressive Behavior," 1 Communication Re­
search 286 (1974). See also N. Malamuth, "Factors Associated with Rape as
Predictors of Laboratory Aggression against Women," 45 journal of Personality
and Social Psychology 432 (1983) (valid relation between factors associated with
real-world aggression against women and laboratory aggression).
118. Neil M. Malamuth and John Check, "Penile Tumescence and Percep­
tual Responses to Rape as a Function of Victim's Perceived Reactions," 10
journal of Applied Social Psychology 528 (1980); Neil M. Malamuth, Scott Haber,
and Seymour Feshbach, "Testing Hypotheses Regarding Rape: Exposure to
Sexual Violence, Sex Difference, and the 'Normality' of Rapists," 14 Journal of
Research in Personality 121 (1980). The lack of distinction between reactions of
convicted rapists and of control groups may be the reason many people have
concluded that pornography does not do anything. When all the unreported,
undetected, not to mention unconscious or potential, rapists in the control
groups are considered, this conclusion stops being mysterious. See text ac­
companying note 98, above. See also Gene Abel, Judith Becker, and L. Skin­
ner, "Aggressive Behavior and Sex," 3 Psychiatric Clinics of North America 133,
140 (1980) (fewer than 5 percent of rapists are psychotic while raping); N.
Malamuth, "Rape Proclivity among Males," 37 Journal of Social Issues 4 (1981);
Malamuth and Check, note 116 above; N. Malamuth, J. Heim, and S. Fesh­
bach, "Sexual Responsiveness of College Students to Rape Depictions: Inhib­
itory and Disinhibitory Effects," 38 Social Psychology 399 (1980).
On the general subject of men's attitudes toward rape, see T. Beneke, Men
on Rape (1982); P. Burt, "Cultural Myths and Supports for Rape," 38 Journal of
Personality & Social Psychology 217 (1980); "Introduction," note 20; S. D. Smi­
thyman, "The Undetected Rapist" (Ph.D. diss. , Claremont Graduate School
1978). A currently unknown number of incidents originally reported as rapes
are now considered by police to be unfounded, meaning "the police estab­
lished that no forcible rape offense or attempt occurred." In 1976, the last

296
 Notes to Pages 187-189

year the FBI reported its "unfounding" rate, it was 19 percent of reports.
Federal Bureau of Investigation, Crime in America 16 (1976).
On the supposition that it was not the truth of the statement that they
were protesting, I dedicate this footnote to those members of the Biddle Lec­
ture audience who hissed when I made the statement in the text.
1 19. See notes 116 and 118 above. It is perhaps worth noting that there is
no experimental research to the contrary.
120. See John Briere and Neil M. Malamuth, "Self-Reported Likelihood of
Sexually Aggressive Behavior: Attitudinal versus Sexual Explanations," 37
Journal of Research in Personality 315, 318 (1983) (58 percent of college males in
survey reported some likelihood of forcing sex on a woman if they knew they
would not get caught). See also Mary Koss and Cheryl J. Oros, "Sexual Ex­
periences Survey: A Research Instrument Investigating Sexual Aggression
and Victimization," 50 Journal of Consulting and Clinical Psychology 455 (1982).
121. See I Hearings 21-38 (testimony of E. Donnerstein discussing support­
ing data submitted in the record). See also Zillman and Bryant, note 116 above
(normal males exposed to films like Debbie Does Dallas see rape victims as
many times more worthless than men who had not seen the films, and also
saw less than half the amount of injury to the victim). In spite of this factual
support, it is likely that the Indianapolis version of the ordinance would not
apply to trafficking in such materials. See § 16-3(8) of the Indianapolis Ordi­
nance, which states: "Defenses: It shall be a defense to a complaint under
paragraph (g)(4) . . . that the materials complained of are those covered only
by paragraph (q)(6)."
122. See note 121 above. See also Linz, Donnerstein and Penrod, note 1 16
above. On female subjects, see Carol Krafka, "Sexually Explicit, Sexually Vio­
lent, and Violent Media: Effects of Multiple Naturalistic Exposures and De­
briefing on Female Viewers" (Ph.D. diss., University of Wisconsin, 1985).
123. See I Hearings 37-38 (testimony of E. Donnerstein) ("subjects who
have seen violent material or X-rated material see less injury to a rape victim
than people who haven't seen these films. Furthermore, they consider the
woman to be more worthless"); see also Zillman and Bryant, note 116 above.
124. Dr. Donnerstein says this in most of his talks.
125. Russell, Rape in Marriage 228 (1984).
126. Id. at 84.
127. See II Hearings 68 (testimony of Ruth M.).
128. II Hearings 55 (testimony of Nancy C.).
129. III Hearings 29 (testimony of Sharon Rice Vaughn, reading statement
by Donna DUnn of Women's Shelter, Inc., in Rochester, Minn. , which de­
scribes events reported by a woman at the shelter).
130. Id.
131. III Hearings 83 (testimony of Sue Schafer).
132. II Hearings 74 (testimony of a named former prostitute). The use of
pornography in sexual abuse of prostitutes, and its use in getting them into
prostitution, is documented by Mimi Silbert and Ayala Pines, "Pornography

297
Notes to Pages 189-192

and Sexual Abuse of Women," 10 Sex Roles: Journal of Research 857 (1984). Even
though no specific questions were asked about pornography, 24 percent of
the subjects (current and former prostitutes) mentioned references to por­
nography by the men who raped them, often references to specific materials
in which prostitutes were presented as loving and wanting violent abuse and
death. Ten percent mentioned being used as children in pornography, again
in unsolicited open-ended accounts of their lives. Had they been directly
asked, "it is assumed that the actual response to this question would be no­
tably higher." Id. at 865.
133. II Hearings 74-75 (testimony of a named former prostitute).
134. I Hearings 56 (testimony of Gordon C.).
135. Id.
136. III Hearings 94-95 (testimony of Omar J.).
137. Id. at 95.
138. See Dworkin, "The Bruise That Doesn't Heal," 3 Mother Jones 31, 35
(1978) ("Reality is when something is happening to you and you know it and
you say it and when you say it, other people understand what you mean and
believe you").
139. See Dworkin, Pornography: Men Possessing Women 149 (1981) ("She
wants it, they all do").
140. I think it is important that when the actual object, for example the por­
nography, is present, finding facts about it is thought to become more rather
than less difficult-compared, for example, with finding facts about a rape.
This suggests that the usual process of proof amounts to a credibility contest
between conflicting stories, which come to court in personae. Pornography
has pervasively written women's side of the story as not a rape. When there
is no story about reality to provide a proxy for simplifying it to a question of
whose version one believes, but the reality itself is there, perhaps-if it is
measured against standards devised to describe it-women will have a
chance.
141 . See Miller v. California, 413 U.S. 15, 19 (1973).
142. See Kaplan v. California, 413 U.S. 115, 120 (1973); Paris Adult Theatre
I v. Slaton, 413 U.S. 49, 60 (1973); Roth v. United States, 354 U.S. 476, 501
(1957) (Harlan, J., concurring).
143. New York v. Ferber, 458 U.S. 742, 757 (1982).
144. See consideration of civil as opposed to criminal procedures and rem­
edies, note 52 above. It does seem to me that criminal civil rights legislation
might be worth considering at the federal level, but only in addition to pro­
viding access to court to private civil claimants.
145. III Hearings 53 (testimony of Cheryl Champion, member, Sexual
Abuse Unit, Washington County, Minn., Human Services).
146. 315 u.s. 568, 572 (1941).
147. Actually, some have. See Ann Hansen, "Direct Action: Sentencing
Statements," 17 Open Road, Winter 1984 (Vancouver, B.C.), at 11-12 (on re­
ceiving a life sentence for firebombing the Red Hot Video store, among other
actions). Nikki Craft, with the Preying Mantis Women's Brigade, engages in

298
 Notes to Pages 192-193

disruptive and exemplary acts against pornography, from staging the Myth
California Pageant (in opposition to the Miss California Pageant) to destroy­
ing copies of Hustler, for which she served time. See Linda Hooper, "Preying
on Porn Propaganda," City on a Hill 5-7 (Apr. 5, 1984) (Santa Cruz, Calif.).
Women in Europe have also engaged in destruction of property to express
their dissent against pornography, and to attempt to destroy some of it. See
Dworan, "Review," off our backs, May 6, 1984, at 18-19 (reviewing Breaching
the Peace: a Collection of Radical Feminist Papers [1983]).
148. See Beauharnais v. Illinois, 343 U.S. 250, 263 (1952) ("[T]he dignity
accorded him may depend as much on the reputation of the racial and reli­
gious group to which he willy-nilly belongs as on his own merits").
149. See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., con­
curring).
150. See Tribe, note 9 above, at 731.
151. See T. Emerson, "Toward a General Theory of the First Amendment,"
72 Yale Law Journal 877, 879-81 (1963); C. E. Baker, "Scope of the First
Amendment Freedom of Speech," 25 UCLA Law Review 964, 990-1005 (1978).
152. See A. Meiklejohn, Political Freedom 24-28 (1960). The importance of
participation in civic life is also recognized by Emerson: "[M]an in his capac­
ity as a member of society has a right to share in the common decisions that
affect him." T. Emerson, The System of Freedom of Expression 6 (1970).
153. See T. Emerson, note 152 above. Emerson is entirely aware that some
groups lack power in a way that the political process does not accommodate,
but simply considers this a risk posed principally to "the nonbelonging in­
dividual," id. at 37, rather than advancing any substantive analysis of who
does and does not have power and thus access to the means of speech. In
the absence of such a substantive analysis, pornographers can cast them­
selves as outsiders when they are actually paradigmatic. See also Clark, "Lib­
eralism and Pornography," in Pornography and Censorship 57 (D. Copp and S.
Wendell eds. 1983).
154. One case has squarely balanced a municipal ordinance prohibiting sex
discrimination in advertising against the First Amendment. Noting that com­
mercial speech is not the highest order of speech-a position with strong
parallels to the plurality's treatment of the "sexually explicit" in Young v.
American Mini Theatres, 427 U.S. 50 (1976)-the presumptive connection be­
tween sex segregation in job advertisements and sex segregation in the work­
place stated a harm that outweighed freedom of the press. Further, the Su­
preme Court recently held that the compelling state interest in eradicating
discrimination against women justified the impact of Minnesota's Human
Rights Act on First Amendment rights of expressive association. See Roberts
v. United States Jaycees, 468 U.S. 609 (1984). Holding that the state's interest
in sex equality outweighed the First Amendment interests implicated, the
Court stated that the equality interest is not "limited to the provision of
purely tangible goods and services," but also includes steps to remove "the
barriers to economic advancement and political and social integration that
have historically plagued certain disadvantaged groups, including women."

299
Notes to Pages 193 -194

Id. at 626. In a formulation strikingly apposite to the antipornography ordi­

nance, the Court said: "[A]cts of invidious discrimination in the distribution
of publicly available goods, services, and other advantages cause unique evils
that government has a compelling interest to prevent-wholly apart from the
point of view such conduct may transmit. Accordingly, like violence or other
types of potentially expressive activities that produce special harms distinct
from their communicative impact, such practices are entitled to no constitu­
tional protection." Id. at 628.
155. In one obscenity case the Supreme Court stated: "Appellant was not
prosecuted here for anything he said or believed, but for what he did, for his
dominant role in several enterprises engaged in producing and selling alleg­
edly obscene books." Mishkin v. New York, 383 U.S. 502, 504-05 (1966). The
statute upheld in Ferber, 458 U.S. 747 (1982), defined publication of child por­
nography as "promoting a sexual performance by a child," N.Y. Penal Law
§ 263 (McKinney 1980), logic that extended to support the law against the
pornography's distribution. It is arguable that a major reason obscenity was
defined as "nonspeech" is because speech was considered to communicate
ideas, and obscenity was understood to function physically rather than idea­
tionally. For some further thoughts on this subject, see "Not a Moral Issue."
To state the obvious, I do not argue that pornography is "conduct" in the
First Amendment doctrinal sense.
156. Ginsberg v. New York, 390 U.S. 629, 649 (1968) (Stewart, J., concur­
ring in result) (emphasis added).
157. Roth v. United States, 354 U.S. 476, 514 (Douglas, J., dissenting) (cit­
ing Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 [1949]); Labor
Board v. Virginia Power Co., 314 U.S. 469, 477-78 (1941). See also Memoirs v.
Massachusetts, 383 U.S. 413, 426 (1966) (Douglas, J., concurring) (First
Amendment does not permit the censorship of expression not brigaded with
illegal action); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S.
376, 398 (1973) (Douglas, J., dissenting) (speech and action not so closely
brigaded as to be one).
158. Rape, battery, assault, kidnaping, and prostitution are all crimes, and
they are absolutely integral to pornography as we define and make it action­
able. Compare with Ferber, 458 U.S. 747 (1982): masturbating is not a crime,
nor is watching it; yet making and distributing a film of two boys masturbat­
ing is.
159. Speech by Dworkin, note 63 above.
160. This example is from an interview with a victim done in preparation
for the Minneapolis Hearings.
161. See Foucault, note 32 above.
162. "He [her husband] told me if I loved him I would do this. And that,
as I could see from the things he read me in the magazines initially, a lot of
times women didn't like it but if I tried it enough I would probably like it and
I would learn to like it. And he would read me stories where women learned
to like it." II Hearings 63 (testimony of Ruth M.).

300
 Notes to Pages 194-207

163. See Rennie Simson, "The Afro-American Female: The Historical Con­
text of the Construction of Sexual Identity," in Powers of Desire: The Politics of
Sexuality 231 (A. Snitow, C. Stansell and S. Thompson eds. 1983) (quoting a
Black slave, Harriet Jacobs, who speaks for many women under circum­
stances of compulsion when she writes of her rape by her white master: "It
seems less demeaning to give one's self, than to submit to compulsion." Ja­
cobs subsequently resisted by hiding in an attic cubbyhole, "almost deprived
of light and air, and with no space to move my limbs, for nearly seven years"
to avoid him.
164. This paraphrases a portion of Andrea Dworkin's speech, note 63
above.
165. See U.S. Const. amend: I.
166. Francis Biddle, A Casual Past (1961); see also Biddle, In Brief Authority
(1962).
167. A. Fisher, "Francis Biddle," 9 Harvard Civil Rights-Civil Liberties Law
Review 423, 424 (1974) (foreword to Herbert Wechsler, "The Francis Biddle
Lectures," 9 Harvard Civil Rights-Civil Liberties Law Review 426 [1974]). It was
also said that "Mr. Biddle deeply shared what Justice Brandeis called the 'con­
viction' of Justice Holmes, that 'man should be free in a large way."' Id. at
426. So, it seems to me, should woman.
168. Andrea Dworkin, "The Bruise That Doesn't Heal," 3 Mother ]ones 31,
36 (July 1978).
169. V. Woolf, A Room of One's Own 48-50 (1929) inspired the form of this
vision.

15. On Collaboration

1 . LEXIS is a computerized service for legal research that allows random

searches of random phrases as well as of concepts and cases.
2. Brown v. Board of Education, 347 U.S. 483, 494 (1954) (" . . . a feeling
of inferiority as to their status in the community that may affect their hearts
and minds in a way unlikely ever to be undone").
3. American Booksellers Association v. Hudnut, 598 F. Supp. 1316 (S.D.
Ind. 1984) (Sarah Evans Barker, J.). For subsequent history, see "Francis Bid­
dle's Sister," notes 1, 46.

16. The Sexual Politics of the First Amendment

1 . Isaiah Berlin distinguishes negative from positive freedom. Negative

freedom asks the question, "what is the area within which the subject-a
person or group of persons-is or should be left to do or be what [he] is able
to do or be, without interference from other persons?" Positive freedom asks
the question, "what, or who, is the source of control or interference that can
determine someone to do, or be, this rather than that?" "Two Concepts of
Liberty," in Four Essays on Liberty 121-22 (1970). Is it not obvious that if one
group is granted the positive freedom to do whatever they want to another

301
Notes to Pages 207-208

group, to determine that the second group will be and do this rather than
that, that no amount of negative freedom guaranteed to the second group
will make it the equal of the first? The negative state is thus incapable of
effective guarantees of rights in any but a just society, which is the society in
which they are needed the least.
2. The analysis here is indebted to Andrea Dworkin, "For Men, Freedom
of Speech, For Women, Silence Please" in Take Back the Night: Women on Por­
nography 255-58 (Laura Lederer ed. 1982) .
3. But cf. the words of framer William Livingston, who said, "Liberty of
the press means promoting the common good of society, it does not mean
unrestraint in writing." Livingston, "Of the Use, Abuse and Liberty of the
Press," Independent Reflector (1754), quoted in Richard Buel, The Press and the
American Revolution 69 (1980). Livingston's press was founded "to oppose su­
perstition, bigotry, priestcraft, tyranny, servitude, public mismanagement
and dishonesty in office." Quoted in Leonard W. Levy, Emergence of a Free
Press 138 (1985). Levy, an absolutist, finds the theory that gave rise to the
Independent Reflector "in fact reactionary if not vicious . . . That a Framer could
ever have held such views surprises" at 138.
4. There is a major controversy about the intent of the framers in relation
to existing law and values of the colonial period. The controversy is discussed
in T. Terrar, "The New Social History and Colonial America's Press Legacy:
Tyranny or Freedom?" (1986) (unpublished manuscript).
5. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969). In F.C.C. v.
League of Women Voters, 468 U.S. 364 (1984), the Supreme Court hints that
it would be receptive to a challenge to the fairness doctrine on the basis that
it impedes rather than furthers the values of the First Amendment, 376 n.ll,
378 n.12.
6. Schneider v. State, 308 U.S. 147 (1939) (restricting street circulars be­
cause of litter is invalid if it is possible to clean them up).
7. Slave codes prohibited teaching slaves or free Blacks to read, write, or
spell and giving them reading materials and permitting meetings for school­
ing. Punishments for Blacks included whipping; whites caught in the act
could be fined and imprisoned but never whipped. Alabama: Clay's Digest
543, Act of 1832, § 10 (crime to teach Black to spell, read, or write); North
Carolina: Revised Statutes ch. 3, § 74 (1836-7) (crime to teach slave to read or
write, except figures, to give or sell to slave a book or pamphlet); ch. 3, § 27
(slave who receives instruction receives thirty-nine lashes); Georgia: 2 Cobb's
Digest 1001 (1829) (crime to teach Black to read or write); Virginia: "Every
assemblage of Negroes for the purpose of instruction in reading or writing
shall be an unlawful assembly." Virginia Code, §§ 747-48 (1849); South Caro­
lina: meetings including even one person of color "for the purpose of mental
instruction in a confined or secret place are declared to be an unlawful meet­
ing." Police can "break doors" and may lash participants sufficiently to deter
them from future such acts. 7 Statutes of South Carolina 440 (1800). See generally
George M. Stroud, Sketch of the Laws Relating to Slavery 58-63 (1856, 1968 ed.).

302
 Notes to Pages 208-212

The slaves understood that literacy was as fundamental to effective expres­

sion as it was to every other benefit of equality: "It seemed to me that if I
could learn to read and write, the learning might-nay I really thought it
would, point out to me the way to freedom, influence, and real, secure, hap­
piness." Slave narrative quoted in Thomas L. Webber, Deep Like the Rivers:
Education in the Slave Quarter Community 144 (1978). The Statutes of Louisiana
208 (1852) state: "Whosoever shall make use of language in any public dis­
course from the bar, the bench, the stage, the pulpit, or in any place what­
soever, or whoever shall make use of language in private discourses or con­
versations, or shall make use of signs or actions, having a tendency to
produce discontent among the free colored population of this state, or to
excite insubordination among the slaves, or whosoever shall knowingly be
instrumental in bringing into this state any paper, pamphlet or book having
such tendency as aforesaid, shall, on conviction thereof before any court of
competent jurisdiction, suffer imprisonment at hard labour not less than
three years nor more than twenty-one years, or DEATH, at the discretion of
the court" at 208.
8. The best examples are the laws against treason, bribery, conspiracy,
threats, blackmail, and libel. Acts can also be expression, but are not neces­
sarily protected as such. See, e.g., Giboney v. Empire Storage & Ins. Co., 336
U.S. 490 (1946) (labor picketing can be enjoined on the ground the First
Amendment does not cover "speech or writing used as an integral part of
conduct in violation of a valid criminal statute"). Action "is often a method
of expression and within the protection of the First Amendment . . ." but
"picketing [is] 'free speech plus' [and] can be regulated when it comes to the
'plus' or 'action' side of the protest." Brandenburg v. Ohio, 395 U.S. 444, 455
(1969) (Douglas, J., concurring). See also United States v. O'Brien, 391 U.S.
367 (1968) (burning draft card not protected speech as symbolic protest);
Street v. New York, 394 U.S. 576 (1969) (burning flag while speaking not
punishable because speech is protected even though burning is crime);
Spence v. Washington, 418 U.S. 407 (1974) (altering flag is protected speech
despite flag desecration statute); Clark v. Committee for Creative Non­
Violence, 468 U.S. 288 (1984) (sleeping in park to protest homelessness not
protected as expressive conduct when it violates regulation against camping).
9. Roth v. U.S., 354 U.S. 476, 508-14 ("The first amendment, in prohibi­
tions in terms absolute" at 514); Memoirs v. Massachusetts, 383 U.S. 413,
424-33 (concurring); Miller v. California, 413 U.S. 15, 37-47; Paris Adult The­
atres v. Slaton, 413 U.S. 49, 70-73 (1973).
10. 106 S. Ct. 1172 (1986).
11. American Booksellers v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd 106
S. Ct. 1172 (1986).
12. 771 F.2d at 329.
13. Renton v. Playtime Theatres, 106 S.Ct. 925 (1986).
14. E.g., Miller v. California, 413 U.S. 15 (1973).
15. E.g., New York v. Ferber, 458 U.S. 747 (1982).

303
Notes to Pages 212-213

16. 106 S.Ct. at 933 n.1 (Brennan, J., dissenting).

17. Laws against rape also express the view that sexual subordination is
impermissible, and this is not considered repressive of thought, although
presumably some thought is involved.
18. An erection is not a thought, either, unless one thinks with one's penis.
19. The most celebrated and equivocal example is the prosecution of
unionist McNamara brothers for blowing up the virulently anti-union Los
Angeles Times. The McNamaras pleaded guilty but doubt remains whether
they did it. Although the bombing was criticized as inhumane (many people
died), needlessly destructive, and instrategic, I found no argument within
the movement that the Times should not have been attacked because it was
"speech." See P. Foner, History of the Labor Movement in the United States, vol.
5: The AFL in the Progressive Era, 1910-1915 ch. 1 (1980).
20. Abraham Lincoln ordered "copperhead" (northern pro-slavery) news­
papers closed and editors jailed during the Civil War. The postmaster general
barred some "copperhead" newspapers from the mail. Abolitionists "threat­
ened, manhandled, or tarred editors, required changes in editorial policy,
[and] burned print shops" of pro-slavery presses. Harold L. Nelson, Freedom
of the Press from Hamilton to the Warren Court xxvi-xxvii, 236-237 (1967).
21. For example, the Sons of Liberty in 1775 issued the following ultima­
tum to New York printers: "Sir, if you print, or suffer to be printed in your
press anything against the rights and liberties of America, or in favor of our
inveterate foes, the King, the Ministry and Parliament of Great Britain, death
and destruction, ruin and perdition shall be your portion. Signed by Order
of the Committee of Tarring and Feathering." Thomas Jones, History of New
York During the Revolutionary War (E. F. DeLancey ed. 1879), quoted in Levy,
note 3 above, at 175.
22. Beauharnais v. Illinois, 343 U.S. 250 (1952).
23. This was particularly true of the American-occupied zone. German
publishers were licensed, and those who published materials inconsistent
with the American objectives had their licenses revoked. They were kept
under surveillance. Americans also imposed school reform and curriculum
changes to reeducate German youth against the Nazi ideology. John Gimbel,
The American Occupation of Germany: Politics and the Military (1945-1949) 246-
47 (1968). Positive steps were also taken. American propaganda efforts in­
cluded radio and television campaigns against the harm of Nazism and at­
tacks on neo-Nazis. Kurt P. Tauber, Beyond Eagle and Swastika 434 (1967). The
British and American forces denied that they practiced censorship, but de­
structive criticism of the occupying powers was forbidden. Clara Menck, A
Struggle for Democracy in Germany 298-99 (Gabriel L. Almon ed. 1965).
24. La Gaceta-Diario Oficial 73-75 (Sept. 13, 1979), Ley General Provisional
Sobre los Medios de Comunicacion Arto. 3o prohibits materials "que utilicen
a Ia mujer como objeto sexual o comercial" ("that uses women as sexual or
commercial objects") Decree No. 48, Aug. 17, 1979, at 74. I make this refer­
ence not to hold up this language or this effort as an ideal to be strictly fol­
lowed, but rather to remind leftists in particular that some efforts that they

304
 Notes to Pages 213-221

otherwise take as admirable do (even under conditions very different from

those in the United States) consider that the use of women to sell things, as
well as prostitution itself, is the opposite of the liberation of women as in­
tended by their revolutions. It is also instructive to notice that an otherwise
hard-headed revolutionary government with a lot to worry about does not
regard the issue of sexual sale of women as either too unimportant to address
or too moralistic for political concern.
25. Brown v. Board of Education, 347 U.S. 483 (1954).
26. Dred Scott v. Sanford, 60 U.S. (19 How. ) 393 (1856).

Afterword

1. In the closing line of Lily Tomlin and Jane Wagner's Broadway play The
Search for Signs of Intelligent Life in the Universe, the bag lady who has been
instructing her "little friends" from other planets in the distinction between
Campbell's soup and Warhol's art reports that when they attended a play;
they found the audience more entertaining than the play: "The play was
soup; the audience was art."
2. Alexander v. Yale University, 459 F. Supp. 1 (1977).
3. Alexander v. Yale University, 631 F.2d 178 (2d Cir. 1980).
4. American Booksellers v. Hudnut, 598 F. Supp. 1316 (S.D. Ind. 1984)
aff'd 771 F.2d 323 (7th Cir. 1 985) aff'd 106 S.Ct. 1172 (1986) (summary
affirmance).
5. Judge Veronica Simmons McBeth sentenced a slumlord to thirty days
in his own building for failure to bring it up to the housing code. People v.
Milton Avol, Docket No. 31334373 (Mun. Ct. Los Angeles, Calif. 1986). Judge
LaDoris Cordell found an ordinance an unconstitutional violation of freedom
of expression under which Nikki Craft, an anti-pornography activist, had
been jailed for protesting the Miss Nude America pageant by spilling the
blood of raped women across the entrance. People v. Spray a/k/a Craft, Case
C8284675 (Mun. Ct. San Jose, Calif. Jan. 5, 1983). Bums and Barker are white;
McBeth and Cordell are Black.
6. A stunning example of the denial of gender occurred in a dialogue in
which I participated at Buffalo Law School. In apparent response to a version
of my "Difference and Dominance," Mary Dunlap, a feminist attorney, said:
"I am speaking out of tum. I am also standing, which I am told by some is a
male thing to do. But I am still a woman-standing. I am not subordinate to
any man! I find myself very often contesting efforts at my subordination­
both standing and lying down and sitting and in various other positions­
but I am not subordinate to any man! And I have been told by Kitty Mac­
Kinnon that women have never not been subordinate to men. So I stand here
an exception and invite all other women here to be an exception and stand.
Everyone who believes it is true that we have never not been subordinate to
men, remain seated. Everyone who believes that you do not have to be sub­
ordinate to men, stand if you can." A version of this exchange was later pub­
lished in "Feminist Discourse, Moral Values, and the Law-a Conversation,"

305
Notes to Pages 221-227

34 Buffalo Law Review 11, 76 (1985). This statement turns a critique of a struc­
tural condition into a statement of individual inevitability, an indictment of
oppression into a reason for passivity and despair. An empirical indictment
of what is becomes opposed by a rallying cry of what does not have to be­
surely a misplaced opposition. And any woman's victory over sexism be­
comes a source of proud disidentification from the rest of her sex and proud
denial of the rest of her life. If subordination had to be, it would surely be a
waste of time to fight for women's rights. But under existing conditions, ask­
ing women to single themselves out as exceptions to the condition of women
amounts to saying, "all women who are exempt from the condition of
women, all women who are not women, stand with me." I was encouraged
that only about a quarter of an audience of predominantly female law stu­
dents fell for it. And I understood with new clarity what conservative women
have been trying to tell us about feminists.
7. This is a reference to a study of the attempted psychiatric treatment of
three men, each of whom believed he was Christ. The doctors attempted to
get them to work it out together, with the result that one became the Father,
one the Son, and one the Holy Spirit. Milton Rokeach, The Three Christs of
Ypsilanti: A Psychologi(:Ql Study (1964).
8. The figures on rape and attempted rape alone are 44 percent of all
women. "Not By Law Alone," note 2.
9. Compare the 1973 figure of $4 billion per year, J. Cook, "The X-Rated
Economy," Forbes, Sept. 18, 1978, 81, with the 1983 figure of $8 billion per
year, Galloway and Thornton, "Crackdown on Pornography-A No-Win
Battle," U.S. News & World Report, June 4, 1984, 84.
10. Playboy and others sued the Attorney General's Commission on Por­
nography to keep the commission from publishing information testified to be­
fore the commission concerning retail outlets for pornography and informa­
tion secured through a follow-up letter, asking the retailers if they did,
indeed, sell pornography and if so why. Securing this information by letter
was regarded as intimidating (recall that pornography intimidates no one).
Playboy Enterprises, Inc. et al. v. Meese, Docket No. 86-1346 and Magazine
Publishers Association v. Meese, Docket No. 86-1447 (D.D.C. 1986). They
obtained an injunction. Playboy Enterprises, Inc. v. Meese, 639 F. Supp. 581
(D.D.C. 1986).
11. Andrea Dworkin, Pornography: Men Possessing Women (1981), a work of
genius, originated this analysis.
12. This parallel is brilliantly developed by Twiss Butler in a letter to off our
backs, October 1985, 28.
13. See the lucid discussion in Andrea Dworkin, Right Wing Women (1983).
14. As Dr. Meerloo observed of Holocaust survivors, "There are certain
psychic wounds that prevent the utilization of new-found freedom," in
Henry Krystal, ed., Massive Psychic Trauma 73 (1968).
15. Bishop Tutu, quoted in Alan Cowell, "Fight Apartheid, Tutu Tells
Investors," New York Times, Jan 3, 1985, 3. This locution derives from Shy­
lock's speech in Shakespeare's The Merchant of Venice, which ends "and if you
wrong us, shall we not revenge?"

306
Acknowledgments

I n • v.,y reo! "'"''· ""'' 'J"O<h� � • ron.ctiw •ffort of my friend•,

students, clients, co-workers, and colleagues, as well as of my audiences.
Individuals who were particularly generous in discussing ideas, criticizing
manuscript, and doing work are legion. I am especially indebted to all those
who testified for the civil rights ordinance against pornography in Minne­
apolis, and to Roni Alexander, Gloria Allred, Meg Baldwin, Jeanne Barkey,
Kathy Barry, Pauline Bart, Peter Bogdanovich, Paul Brest, Sally Bums, Twiss
Butler, Pat Butler, Michelle Campbell, Lu Ann Carter, Iris Chester, Susan
Cole, Ruth Colker, Beulah Coughenour, Mark Dall, Deborah Daniels, Karen
Davis, Thelma Dekker, Andrea Dworkin, Mary Eberts, Tom Emerson, Ruth
Emerson, Susan Geiger, Steve Goldsmith, Gerry Gunther, Karen Haney,
Michelle Harrison, Kent Harvey, Valerie Heller, Florence Henderson, Louise
B. Hoogstratten, Charlee Hoyt, Steve Jevning, Evelina Kane, Kathleen Lahey,
Dorchen Leidholdt, Chris Littleton, Linda Marchiano, Jeff Masson, Annie
McCombs, Sheila Mcintyre, Frank Michelman, Martha Minow, Glenn Mor­
ris, Helen Neally, Fran Olsen, Lorelei Pettigrew, Aric Press, Pamela Price,
Norma Ramos, David Rayson, Deborah Rhode, Myra Riddell, Betty Rosen­
stein, Diana Russell, Betsy Sahlkind, Naomi Scheman, Alan Sears, Steve
Shiffrin, Reva Siegal, Anne Simon, Janet Spector, Therese Stanton, Bob Stein,
Wendy Stock, John Stoltenberg, Kathleen Sullivan, Cass Sunstein, Gerald
Torres, Larry Tribe, Elaine Valadez, Kathy Watson, Rosalie Wahl, Mary Whis­
ner, Van White, Jack Winkler, and Susan Williams. Thank you all. I thank
William B. Hudnut for changing the course of history.
Lindsay Waters invented this book. Without the support of Dean Robert
A. Stein, virtually none of it would have happened. Others who helped in
material ways include my brothers Jim MacKinnon and Leonard MacKinnon,
Jeanne Barkey, Karen Davis (whom Andrea Dworkin dubbed "The New
Woman" for good reason), John Ely, Annie McCombs, John Kerwin, Marjorie
Resnick, Twiss and Pat Butler, Dorothy Monica, Valerie Harper, David Satz,
Penelope Seator, and Elsa Gidlow. Anne Simon backstopped me on the foot­
notes yet again, and Kent Harvey simply made life possible in ways great
and small. But for all this help, I might have thought these thoughts, but no
one else would have heard them.
Some speeches in this volume were previously published in whole or in
part. Permission to use the following previously published material is grate­
fully acknowledged: "Excerpts from a Debate with Phyllis Schlafly," 1 Law &
Inequality: A Journal of Theory and Practice 341 (1983); "Desire and Power," in

307
Acknowledgments

Cary Nelson and Lawrence Grossberg, eds., Marxism and the Interpretation of
Culture (Champaign-Urbana, ill . : University of Illinois Press, 1987); "Differ­
ence and Dominance: On Sex Discrimination," in Robert K. Fullinwider and
Oaudia Mills, eds., The Moral Foundations of Civil Rights (Totowa, N.J.: Row­
man and Littlefield, 1986); "Feminist Discourse, Moral Values, and the Law­
a Conversation" (with Carol Gilligan, Mary Dunlap, Ellen Dubois, and Carrie
Menkel-Meadow), 34 Buffalo Law Review 11, 20-36, 69-77 (1985); "A Rally
against Rape," Stanford Daily, Nov. 16, 1981; "Violence against Women: A
Feminist Perspective," 33 Aegis: Magazine on Ending Violence against Women 51
(Winter 1982) (Box 21033, Washington, D.C. 20009); "The Male Ideology of
Privacy: A Feminist Perspective on the Right to Abortion," 17 Radical America
Ouly-August 1983); "Roe v. Wade: A Study in Male Ideology," in J. Garfield
and P. Hennessey, eds., Abortion: Moral and Legal Perspectives (Amherst,
Mass. : University of Massachusetts Press, 1984); "Not a Moral Issue," 2 Yale
Law and Policy Review 321 (1984); and "Pornography, Civil Rights, and
Speech," 20 Harvard Civil Rights-Civil Liberties Law Review 1 (1985).

308
Index

Abortion, 1, 26, 28, 93-102; and incest, Black women, 76; death from illegal
94, 99; illegal, 25; Medicaid funding of, abortions, 25; rape of, 7, 82, 248n3; in­
93, 96; Playboy funding of, 144-145; visibility of, 81-82; depicted in pornog­
and rape, 248n4; and sex discrimina­ raphy, 199-200
tion, 249n21 Blackmail, sexual, 15
Abstract categories, and justice under Bona Fide Occupational Qualification,
law, 65, 71, 73, 164-166, 167, 168, 170 33, 240nl
Advertising, sex in, 27, 223, 272n54; sex Brandeis, Louis, 193
discrimination in, 299n154 Brant, Beth, 63
Aesthetics, and pornography, 4, 61, 150, Brennan, William, 212
224 Brown v. Board of Education, 165, 168, 202,
Affirmative action, 33, 36, 166 213
Alimony, 76; and gender neutrality, 35 Brownmiller, Susan, 92, 233n19
Allende, Isabel, 10 Burns, Ellen Bree, 220
American Booksellers v. Hudnut, 210-212,
281n46 Ollifomia Federal v. Guerra, 243n18
American Civil Liberties Union, 202, 209, Cardozo, Benjamin, 9
242n18 Cartesian doubt, 57-58
Androgyny, 118 Catton, Bruce, 206
Anti-Semitism, 55, 140, 222, 289n91 Censorship, 140, 143-144, 154, 195; Fem­
Aronowitz, Stanley, 50, 58 inist Anti-Censorship Task Force,
Asian women, depicted in pornography, 236n35
200 Chaplinsky v. New Hampshire, 192
Athletics: women in, 36, 74, 117-124, Child care responsibilities, 37
241nl7, 255n2; separate for women, Child custody, 1; and gender neutrality,
256n2 35
Autoerotic asphyxia, 291n107 Children: sexual abuse of, 5, 6, 23, 41,
51, 169, 170, 184; and pornography,
Barker, Sarah Evans, 220 157, 171, 172, 179-181, 182, 184, 189,
Barrett, Michelle, 54 212, 287n77, 291n107; coerced into
Battery, 5; domestic, 1, 24, 28, 41, 52, prostitution, 180-181
170; erotization of, 85, 92; rate, 169; Choice, 14; and pornography, 172
and pornography, 171, 184, 199; and Civil rights: pornography as violation of,
rape, 182 3-4, 14, 163, 175-195, 199-205, 210-
Beauharnais v. Illinois, 192 213, 222-223, 226; of individuals, 13; of
Berlin, Isaiah, 301nl Indian women, 66-69, 247n11
Biddle, Francis, 195 Oass: and gender, 2, 8, 25; marxist
Bisexual defense, 107-108 theory of, 48-49
Black, Hugo, 262n3 Collaboration, and consent, 7
Black, meaning of, 238n12 Community standards, 174
Black men, and rape, 81 Consent, 100; and collaboration, 7; in
Black slavery, 55, 167-168, 208, 302n7 sex, 11; and pornography, 172, 180-183

309
Index

Contraception, 25, 28, 95 power, 40; and neutrality under law,

Control, 48-50; over reproduction, 94, 65, 71, 73, 164-166, 167, 168, 170; and
95, 97-98, 100; over sexuality, 94, 97-98 freedom, 166, 177, 205; meaning for
Cordell, LaDoris, 211 women, 171, 177, 207. See also Sex
Coyne, Mary Jean, 70, 77 equality
Credibility of women, 1 10-113, 133, 191 Erotica, 175
Cultural values, 63, 65-66, 68 Ethnic discrimination, 2, 63, 64, 65

de Beauvoir, Simone, 55 Family, 49, 96; conservative defense of,

Deep Throat, 10-11, 13, 128-129, 180, 181, 24, 30
234n30 Femininity, 6, 122; and women lawyers,
Defamation, 11, 192-193; countersuits to 74-75
rape charges, 255n38 Feminism, 9-10, 169, 216, 217; failure to
Desexualization of women, 97 change women's status, 1-2; second
Desire, 49, 54, 61, 149, 174 wave of, 1; and politics, 3; applied to
Difference, 51, 118, 175; and gender, 3, law, 4-5; and sexual abuse, 5-6; lib­
8-9, 23, 32-45, 175, 233n26; theory of eral, 15-16, 60, 118-120, 136-137; con­
sex equality, 23, 32-45; and sex dis­ servative attack on, 21, 26, 30-31;
crimination, 41-44; social meaning of, goals of, 21-31; critique of gender hier­
51; in liberalism, 137 archy, 22-23; and uses of power, 23,
Divorced women: standard of living of, 26, 50-51; meaning of, 48-50, 137; and
24; alimony, 35, 76 sexuality, 48-50; postmarxist, 60-61,
Dominance and submission: erotization 135; radical, 60, 119, 120, 137; socialist,
of, 3, 6-7, 29, 50-51, 53-54, 149, 152, 60; critique of pornography, 147, 149,
160-161; and pornography, 3, 173, 222; 151, 225; critique of First Amendment,
in sex discrimination, 40-41, 42-43 206-213, 281n46
Donnerstein, Ed, 188 Ferrenbacher, Don E., 206
Dothard v. Rawlinson, 73 First Amendment, 138, 165, 169; and
Douglas, William 0., 194, 208, 209 pornography, 4, 129-132, 140-141,
Dred Scott v. Sanford, 213 146-162, 177-178, 181, 191-193, 195,
Dunlap, Mary, 305n6 203-204, 223-224; absolutism, 146,
Dworkin, Andrea, 5, 13, 79, 99, 127, 129- 156, 157, 208-209, 212, 224; feminist
133, 149, 163, 173, 175, 194, 196, 199- critique of, 206-213, 281n46
200, 207, 210, 226 Fisher, A., 196
Frankfurter, Felix, 192
Easterbrook, Frank, 210, 211 Freedom, and equality, 166
Education, access to, 131 Freud, Sigmund, 51, 85, 143, 144, 151,
Educational institutions: sexual harass­ 170
ment in, 107, 110, 220, 251n6; pornog­ Frigidity, 97, 143
raphy in, 116, 183, 288n84; women in,
216; sex discrimination in, 240n4 Gender, 218; and race and class attri­
El Saadawi, Nawal, 5 butes, 2; difference gender makes, 3,
Epistemology, 50, 178; and power, 147, 8-9, 23, 32-45, 175, 233n26; imposition
163-164, 169; and politics, 166 of, 3; as sexualization of inequality, 6-
Equal Rights Amendment, 1, 28, 239n17; 7, 8, 14, 40, 43-44, 51, 53, 90; social
conservative attack on, l, 21, 26-27, meaning of, 3, 23, 49, 54-55, 88, 90,
225-226; and gay marriages, 27; and 149; and status, 8, 169; hierarchy, 22-
military draft, 27 23, 1 18, 137, 178-179; and moral rea­
Equality, 37, 63, 175; abstract v. substan­ soning, 38-39; and pornography, 172-
tive, 14, 71, 73, 164-166; as sameness, 173; in sex discrimination law, 175; and
22, 23, 32-45; and distribution of sex, 263n5

310
 Index

Gender inequality. See Sex inequality Katz v. Dole, 287n81

Gender neutrality, 33-34, 37, 71-73, 152, Kennedy, David, 55
175; in custody and divorce, 35; and
abortion, 98 LaDuke, Winona, 210
General Electric v. Gilbert, 243n18 Lafler v. Athletic Board of C�ntrol, 242n17
Genocide, 55, 65, 67, 222 Language: politics of, 47, 55; in sexual
Gilligan, Carol, 38-39 harassment cases, 112, 115, 287n81
Ginsburg v. New York, 194 Law: feminism applied to, 4-5; and liber­
Griffin, Susan, 148 alism, 164-165
Grossberg, Larry, 55 Lawyers: women, 70, 71, 74-77, 199,
200-205, 217, 305n6; as power role, 74
Harrington, Edward, 79 Legal reasoning, 9, 234n27
Harris v. McRae, 93, %-97, 100-101, Legal system, 64; and sexual abuse, 12-
249n21 13; and women's rights, 26, 104-105,
Harris, Jean, 8 167, 169, 195; and abortion cases, 93-
Hefner, Christie, 135, 258n3 102; and sexual harassment, 103-115
Hefner, Hugh, 135, 258n4 Legalism, hegemony of, 129
Hermeneutics, 53 Lesbians, 86, 122; and sadomasochism,
Heterosexuality, 7, 49, 60, 87, 122; glorifi­ 15; and sex in pornography, 199; stig­
cation of, 29 matization of, 236n34
Hierarchy, 37, 40, 52, 88, 107, 118; gender Levi, Edward M., 234n27
hierarchy, 22-23, 118, 137, 178-179 Libel, 11, 192-193
Holmes, Nancy, 182 Liberalism, 14; how legitimized, 2; and
Holmes, Oliver Wendell, 71 feminism, 15-16, 60, 118-120, 136-137;
Horowitz, Morton, 157 misogyny of, 15, 140-141, 205; and tol­
Housework, wages for, 24, 28 erance, 15; conservative attack on, 21;
Huebschen v. Dept. of Health, 253n16 on equality as sameness, 22, 36; and
Humanism, 11, 169 abortion, 94; and pornography, 136,
Hume, David, 159 140, 148-149, 154-157; and male su­
Hyde Amendment, 94 premacy, 151; and law, 164-165; and
equality-freedom dilemma, 166; and
Idealism, 137 power, 221
Incest, 23, 51, 82; and abortion rights, 94, Literacy, 47, 208, 302n7
99; and rape, 248n4 Literary criticism, and pornography, 4
Indian Civil Rights Act, 66 Lochner v. New York, 165
Indian tribal rights, 66, 246n8 Lovelace, Linda. see Marchiano, Linda
Indian women, 65-69, 184, 247n11 Loving v. Virginia, 245n35
Individualism, 137
Inequality, 3, 8, 169, 172. See also Sex in­ Mailer, Norman, 16
equality Male supremacy, 3, 31, 43, 53, 118, 164;
Insurance coverage, 36 and pornography, 3, 130, 148, 154,
172-174; as politics, 3; and sexual ac­
Jews, and anti-Semitism, 55, 140, 222, cess to women, 14; and sex equality,
289n91 39-40; and sexualized objectification,
]ones v. Cassens Transport, 243n19 50, 54-55, 1 19, 139; and Indian tribal
Joseph, Burton, 127, 129, 130, 131, 133 rules, 67-68; and liberalism, 151
Judges, women, 70, 77 Maleness, as entitlement, 37
Justice, as neutrality between abstract Mann, Paul, 110
categories, 65, 71, 73, 164-166, 167 Manners, and politics, 46
Marchiano, Linda, 10-14, 125, 127-129,
Kant, Immanuel, 158 130, 132, 133, 180, 181, 182

311
Index

Marital rape, 1, 26, 76, 170, 247n2, Obscenity and Pornography, 264n8,
291n107 284n53
Marriage, 96; gay, 27 Occupational health hazards, 38
Martial arts, 83-84 Orgasms, female: faking, 58, 129
Martinez v. Santa Clara Pueblo, 65-69 Orgasms, male: from pornography, 190
Mandst theory, 48, 58-60, 158-159; and Orwell, George, 146
feminism, 60-61, 135
Masculinity, 52, 122; of money as power, Paternalism, institutional, 104-105
2; and sex discrimination, 71 Pay inequality, 1, 24, 25, 28, 41, 171,
Medicaid funding of abortions, 93, 96 243n19; comparable worth doctrine,
Meiklejohn, Alexander, 193 36, 64, 198; median income of men and
Military draft and service, 27, 35, 38, women, 231n2
244n26 Penis: in fellatio, 10, 11, 128, 286n65; as a
Miller v. California, 191 weapon, 130; exposure of, 151, 268n29
Misogyny: and sex inequality, 5; and sex­ Penthouse magazine, 189, 286n66
ual sadism, 5; in liberalism, 15, 140- Pimps, 10, 145; violence of, 11
141, 205; and sexual harassment, 114 Playboy Foundation, 99, 133
Money: as power, 2; Playboy's money, Playboy magazine, 134-145, 152, 158, 189,
134-135, 137, 141-142, 145 209, 223, 260n10
Monroe, Marilyn, 16 Plessy v. Ferguson, 165
Moralism, 137 Political philosophy, 166
Morality, and obscenity, 147, 150-151, Politics: and feminism, 3; of sex inequal­
152, 162, 175, 186 ity, 3, 7, 34, 41-42; of pornography, 12;
Moral reasoning, gender differences in, and manners, 46; of language, 47, 55;
38-39 and epistemology, 166; of First Amend­
Morals legislation, 91 ment, 206-213, 281n46
Mother-child relation, 52-53 Pornography, 2, 5, 27, 41, 52, 221-222; as
Murder, 6, 24, 52; depicted in pornogra­ civil rights violation, 3-4, 14, 163, 175-
phy, 172, 180, 199, 200, 272n56 · 195, 199, 200-205, 210-213, 222-223,
226; and male supremacy, 3, 130, 148,
Native tribal sovereignty, 66, 246n8 154, 172-174, 222; and sex inequality,
Native women, 65-69, 184, 247n11 3, 148, 172-174, 193-195, 204, 205; as
Natural law, 12, 13 "speech," 3, 11, 15, 28, 129-132, 154-
Naturalism, 137 158, 161-162, 193, 195, 200, 204, 209-
Nesson, Charles, 260nn13, 14 213; and aesthetics, 4, 61, 150, 224; and
Neutral principles in constitutional law, First Amendment, 4, 129-132, 140-
65, 71, 73, 164-166, 167, 168, 170 141, 146-162, 177-178, 181, 191, 192,
Newport News Shipbuilding and Dry Dock 195, 203, 204, 223-224; and literary
Co. v. EEOC, 243n18 criticism, 4; and power, 4, 175; as sex,
New York v. Ferber, 182, 269n37 4, 53-54, 148, 266n18; trafficking, 4,
179, 186, 190, 191, 198, 203-204, 210,
Objectification, 118, 119, 139; in pornog­ 212, 294n109; and Linda Marchiano
raphy, 174, 175, 182, 199 ("Linda Lovelace"), 10-14, 128-129,
Objectivity, 50, 54-55, 86, 146-162, 174- 130, 180, 181, 182; and violence, 11,
175 85-87, 90, 91, 139, 148, 160, 171-172,
Obscenity, 90, 91, 97, 139, 140, 191, 192; 174, 185, 187-190, 192, 194, 199, 202,
and morality, 147, 150-151, 152, 162, 203, 210; politics of, 12; and sexual ac­
175, 186; social value standard in, 152- cess to women, 14, 138, 140, 149, 150,
153 and First Amendment absolutism, 153, 173, 190, 199; and women's si­
208-209; Report of the Commission on lence, 15, 16, 130, 140, 181, 188-189,

312
 Index

190, 193, 194-195, 209; in workplace, feminist view of, 100-102; and pornog­
115, 183; in educational institutions, raphy, 155, 211
116, 183, 288n84; as terrorism, 130, Prostitution, 5, 24-25, 52, 61, 169; and
140, 149, 151, 183, 188, 203; liberal de­ pornography, 171, 285n62, 297n132;
fense of, 136, 140, 148-149, 154-157; children coerced into, 180-181
ideological defense of, 137, 224-225; Prurient interest standard, 153-154, 174,
feminist critique of, 147, 149, 151, 225; 182
harm caused by, 155, 156, 212, 264n9, Puerto Rican women: death from illegal
295nl15; and children, 157, 171-172, abortions, 25
179-181, 182, 184, 189, 212, 287n77,
291n107; dehumanizing effects of, 158- Race: and gender, 2; and death from ille­
161, 175; defined, 160, 175, 262n1, gal abortions, 25
274n1; women defined by, 166, 171- Racial discrimination, 64, 65, 167; legal
172, 178, 181, 190, 284n55; and battery, treatment of, 9, 42, 44; and social hier­
171, 184, 199; and prostitution, 171, archy, 88
285n62, 297n132; and rape, 171, 172, Racism, 2, 55, 154, 164, 167-168, 222; and
182, 184-189, 194, 198, 272n57, sexism, 66-67; and rape, 81-82; in por­
291n107; and sexual harassment, 171, nography, 199-200, 213
183, 198-199; consent and coercion in, Ramos, Norma, 213
172, 180-183; killing depicted in, 172, Rape, 5, 6; convictions, 1, 88, 231n4;
180, 199, 200, 272n56; objectification marital, 1, 26, 76, 170, 247n2, 291nl07;
in, 174, 175, 182, 199; as sex discrimi­ rate, 1, 23, 41, 51, 169; of black
nation, 175-195, 199-205, 210-213; women, 7, 248n3; as sex, 11; normali­
criminal v. civil approach, 179, 203, zation of, 61; New Bedford gang rape,
283n52; racism in, 199-200, 213; Report 79, 194; publicizing, 81; reporting, 81-
of the Commission on Obscenity and Por­ 83, 88, 290n98; and racism, 81-82; as
nography, 264n8, 284n53 crime of violence, 82-83, 85-87, 88-
Poverty, 55, 64, 73, 132 89, 92, 160, 233n19; acquaintance rape,
Power, 57, 164; money as masculine form 83, 95, 247n2; defense against, 83-84;
of, 2; and gender, 8, 14, 40, 43-44, 90; prosecutions, 83, 248n1; defined, 87;
feminist theory of, 23, 26, 50-51; hier­ and sexuality, 87-88; victim's view of,
archy of, 37, 40, 52, 88, 107, 172; equal­ 87-88; rapist's view of, 88; and abor­
ity and distribution of power, 40, 43- tion rights, 94, 99, 248n4; and sexual
44; exercise of male power, 52, 53, 58, harassment, 110, 112; victim's sexual
130, 219-220; female power, 53; law­ history, 113, 231n5; and pornography,
yers as power role, 74; sexual harass­ 171, 172, 182, 184-186, 187, 188-189,
ment as abuse of, 85-88, 90-91; and 194, 198, 272n57, 291n107; and battery,
legitimacy, 135, 137, 138, 141, 142; and 182; and incest, 248n4; and defamation
epistemology, 147, 163-164, 169; countersuits, 255n38
and powerlessness, 164, 165, 171, 220; Red Lion Broadcasting Co. v. F. C. C., 208
and social reality, 166; and maleness, Renton v. Playtime Theaters, 211, 212
171; and pornography, 175; and liberal­ Reproduction, control over, 94, 95, 97-
ism, 221 98, 100
Pregnancy, 36; and maternity benefits, 1, Rich, Adrienne, 93, 170
242n18 Roberts v. United States Jaycees, 299n154
Price, Pamela, 220 Roe v Wade, 93, 96, 97, 100, 101, 249n21
Prisons: employment in, 38, 73; abuse of
prisoners, 170, 279n29; women com­ Sadomasochism, 161; and misogyny, 5;
pared to prisoners, 170 lesbian, 15
Privacy: and abortion, 1, 93, %-102; a Sartre, Jean Paul, 19

313
Index

Scheman, Naomi, 154-155 173, 190, 199; and freedom of speech,

Schlafly, Phyllis, 21, 22, 24, 25, 27, 29, 30, 140, 144
31, 76 Sexual blackmail, 15
Segregation, 64, 165, 178, 193-194, 202, Sexual harassment, 1, 5, 6, 26, 61, 73,
208, 213 103-116, 198, 252n8; conservative
Self-interest, 15 views on, 25; rate, 25, 51-52, 106, 169;
Self-possession, 121, 159 as abuse of power, 85-88, 90-91; as
Self-respect, 121, 122, 159, 160 sex discrimination, 103, 109, 231n7,
Separatism, 123 252n13; in educational institutions,
Sex, 217-218; and male-female relations, 107, 110, 220, 251n6; and rape, 110,
3; dominance and submission as, 3, 6- 112; reporting, 111, 114-115, 255n38;
7, 29, 50, 53, 54, 149, 152, 160-161; and language, 112, 115, 287n81; and
pornography as, 4, 53-54, 148, 266n18; sexual misogyny, 114; Playboy's fund­
and violence, 5-6, 85-92, 151, 184, ing of conferences on, 145; and por­
187; being anti-sex, 7-8; consent in, 11; nography, 171, 183, 198-199
rape as, 11; in advertising, 27, 223, Sexuality, 218-219; and sex inequality, 6-
272n54; as continuum, 44; battery as, 7, 14; and women's status, 6; and femi­
85, 92; and gender, 263n5 nism, 48-50; social meaning of, 49-52,
Sex discrimination, 32-45, 64-65, 71-74, 60-61; feminist theory of, 53-54; and
168; benign discrimination, 71; sexual rape, 87-88; control over, 94, 97-98;
harassment as, 103, 109, 231n7, Freudian theory of, 143-144, 151; Play­
252n13; and gender, 175; pornography boy's definition of, 143
as, 175-195, 199-205, 210-213; in edu­ Silence, of women, 15, 16, 55-56, 104,
cational institutions, 240n4; and anti­ 130, 140, 144, 169-170, 181, 188-189,
abortion laws, 249n21; in advertising, 190, 193, 194-195, 209
299n154 Skokie-type injuries, 184, 289n91
Sex equality: and abortion, 1, 93, 96-102; Slavery, 55, 167-168, 208, 302n7
and maternity benefits, 1, 242n18; and "Slippery slope" problem, 236n36
pay, 1; sameness/difference theory of, Social reality, and power, 166
23, 32-45; politics of, 34; and male su­ Social relations: and gender, 3, 23, 54-
premacy, 39-40; as governmental in­ 55, 88, 90, 149; and sexuality, 49-51,
terest, 178 60-61; and racial discrimination,'88
Sex inequality, 2, 9; and pornography, 3, Sontag, Susan, 98
148, 195, 204, 205; and misogyny, 5; Special protection (special benefits) rule,
erotization of, 6-7, 14, 172-174; legal 33, 38, 71-73
treatment of, 9, 42; and politics, 41-42; Speech: pornography as, 3, 11, 15, 28,
and speech, 129 129-132, 154-158, 161-162, 193, 195,
Sexism, 7, 30, 118, 131, 154, 164, 170, 200, 204, 209-213; and sex inequality,
218; and racism, 66-67 129; conduct distinguished from, 130;
Sex objects, women as, 50, 173 and sexual access to women, 140, 144;
Sex specificity, 55-56, 57, 71, 72, 76, 166- and First Amendment absolutism, 146,
167, 175 156, 157, 212, 224; protection of, 207-
Sexual abuse, 5, 7, 171; of children, 5, 6, 213; high-value and low-value, 211;
23, 41, 51, 169, 170; and feminism, 5- functions of, 220-221
6; and legal system, 12-13; and por­ Spivak, Gayatri, 54, 55, 58
nography, 171, 172, 184, 185-186; re­ Sports, women in, 36, 74, 117-124,
porting, 191 241nl7, 255n2
Sexual access: and male supremacy, 14; State, women's relation to, 26-27, 104-
coercive and unwanted, 83, 86; and 105
pornography, 138, 140, 149-150, 153, Status, 2, 25, 55; effect of feminism on,

314
 Index

1-2; and sexuality, 6; and gender, 8, Williams, Vanessa, 286n66

169 Wittgenstein, Ludwig, 158
Stereotyping, 118-119 Wittig, Monique, 28
Stewart, Potter, 90, 148, 194 Women: opposition to ERA, 1; class sta­
Subordination, 144; of women to men, 2, tus of, 2; comparative privileges of, 2,
147, 152, 175, 201, 210, 222, 305n6 12, 37-38, 76-77; silence of, 15, 16, 130,
Suspect classification theory, 44 140, 181, 188-189, 190, 193, 194-195,
209; conservative views on,. 22; femi­
Terrorism, 7; pornography as, 130, 140, nist views on, 22; in work force, 24,
149, 151, 183, 188, 203 243n19; and legal system, 26, 104-105,
Thomson, Judith Jarvis, 98 165, 167, 169, 195; history of, 39; as sex
Tomlin, Lily, 215 objects, 50, 173; sexual desire in, 54; as
Traynor, Charles, 10, 132 objects, 55; "to be" women, 58-59; vic­
Tribe, Laurence, 193 timization of, 64, 104, 149, 174, 220,
Tutu, Desmond, 226 221, 226; as judges, 70, 77; as lawyers,
70, 71, 74-77, 199, 200-205, 217, 305n6;
Uncertainty principle, 58 as and for women, 71, 73-74, 77; as ab­
stract persons, 72; survival tactics of,
Victim: use of term, 13 94, 135; desexualization of, 97; as uses
Victimization of women, 64, 104, 149, to which men put them, 98; credibility
174, 220, 221, 226 of, 110-113, 133, 191; as whores, 112,
Violence, 41, 57; and sex, 5-6, 85-92, 128, 132; defined by pornography, 166,
151, 184, 187; of pimps, 11; and por­ 171-172, 178, 181, 190, 284n55; and
nography, 11, 87, 90-91, 139, 148, 160, equality-freedom issue, 166, 177, 205;
171-172, 174, 185, 187-190, 192, 194, compared to prisoners, 170; in acade­
199, 202, 203, 210; domestic, 24, 28, 41, mia, 216; reward and punishment for
52, 170; rape as, 82-83, 85-87, 88-89, being, 226
92, 160, 233n19 Woolf, Virginia, 74, 125, 196
Voluntarism, 137 Work: Marxist theory of, 48; sexualiza­
tion of, 112-113, 115
Wagner, Jane, 215 Workplace, pornography in, 115, 183. See
Wahl, Rosalie, 70, 77 also Sexual harassment
Wechsler, Herbert, 165
White supremacy, 164-165, 167, 245n35 Yale University, 220
Williams, Bernard, 159 Young v. American Mini Theatres, 299n154

315