[In the following review, Bartlett investigates the relationship between MacKinnon's themes in Feminism Unmodified and Susan Estrich's Real Rape.]

Catharine MacKinnon's Feminism Unmodified: Discourses on Life and Law and Susan Estrich's Real Rape are two of the best recent examples of feminist legal writing.¹ The authors are prominent feminist lawyers and legal theorists. They both write about the powerlessness of women and the role of the legal system in enforcing this powerlessness.

MacKinnon's Feminism Unmodified, which is a collection of speeches delivered from 1981 to 1986, serves as a comprehensive and readable summary of the critique of American society and its legal system that has established MacKinnon's reputation as one of the most original and uncompromising of contemporary feminist thinkers. MacKinnon's central theme is that the whole of society is organized hierarchically, by sex. She presents a theory of power that, like Marxism, is a “total” theory—a description of the social arrangement between men and women that is “internally coherent and internally rational and pervasive yet unjust” (49). MacKinnon takes on many topics—women's inferior status in the workplace, sexual harassment, pornography, rape, family violence, the small number of women athletes—using each one as an opportunity to demonstrate this arrangement.

Under MacKinnon's analysis, much of the success of men in dominating women can be attributed to the insidious use of abstract standards and principles, which appear to be gender-neutral but, in fact, are designed to create and maintain male advantage. Thus, “men's physiology defines most sports, their needs define auto and health insurance coverage, their socially designed biographies define workplace expectations and successful career patterns, 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 presence 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” (36; see also 71-72).

MacKinnon draws heavily on the theme of pornography to demonstrate her thesis that the whole of society is structured as male hierarchy. Pornography creates sexual reality for both men and women, setting the terms upon which men relate to women as subject to object. Pornography silences women, defining them as acquiescent in, indeed desirous of, violation and possession by men. At the same time it eroticizes male violence against women and “institutionalizes the sexuality of male supremacy” (172). Like abstract (male) principles of neutrality, equality, and justice, pornography hides what it is by calling itself something else. “Pornography turns sex inequality into sexuality and turns male dominance into the sex difference” (3). Because pornography so successfully constructs social reality, it makes the harm of dominance and violence by men against women commonplace, assuring its invisibility.

MacKinnon rejects both the “equal treatment” approach of liberal feminists and the “special treatment” approach of more radical feminists as fatally committed to the principle of difference. Such a commitment, she claims, merely perpetuates the male standards and values from which difference is measured. MacKinnon urges as an alternative what she calls the “dominance” approach, which calls not only for an elimination of those impediments to women's success in the world on male terms but also for the transformation of those terms and the right of women to be judged by their own standards.

MacKinnon is at her best in exposing the irony of the terms of women's oppression. In describing the survival of women who reject and rise above male authority, for example, she explains how “the success of our survival is used to delegitimize what we have survived to say” (131); it can't be that bad if some women have risen above it. She explains how the degradation of women stigmatizes women to the point where that degradation is taken as evidence that there was nothing of value to which harm could be done; a raped woman or a woman who is the victim of pornographers is damaged goods hardly worth the respect a recognition of her harm would bring.

MacKinnon's insights are devastating. The force of her thesis, however, is sometimes weakened by internal contradictions and by the totality of her claims. For example, she categorically asserts in one place for one purpose that women have an unshakeable knowledge of reality (57-58) while asserting with equal vehemence elsewhere for another purpose that women have an infinite capacity to be duped (138). She claims to speak for all women, yet dismisses in disgust as “collaborators” those who don't think and act in accordance with her own views (198-205, 216-28). Moreover, facts and law are loosely reported in support of her theory.² These characteristics are particularly frustrating to the friendly reader who wants to assume that she is credible.

Estrich's subject is more limited and her treatment more restrained than MacKinnon's, but in its specificity Real Rape provides considerable evidence for MacKinnon's analysis. Estrich explains how the crime of rape has been defined by courts and legislatures to cover only circumstances involving strangers, physical force, vigorous physical resistance by the woman, and immediate reporting by the woman. Where the rape meets these criteria, as did her own rape that she describes in the opening chapter of the book, the woman is believed and protected (sort of), the rape prosecuted (more or less), the defendant (sometimes) convicted. Estrich contrasts the law's treatment of stranger rape with its treatment of “simple rape”: rape cases in which the woman knew her “rapist,” cases in which force is implied (from previous relations between the parties or other threatening circumstances), cases in which the woman chose not to exercise physical force in response to her assailant, or cases in which the woman delayed in reporting the event. These cases, Estrich shows, are not taken at all seriously by the legal system, even though if money had been taken under similar circumstances rather than sex, the law would treat the case as one of robbery. Estrich makes the case that simple rape is real rape. Her point is a simple but powerful one: women ought to be able to say “no” to someone they have met (or to whom they are married) as well as to someone who jumps out at them from behind a bush. They ought to be able to say “no” without risking further force by their own physical resistance. This “no” ought to be respected by men who want to have sexual intercourse with them and, if not by men, by the criminal justice system.

Estrich's analysis supports MacKinnon's in that it establishes how deeply engrained in the law is a distrust of women who claim violation by men, assuming that women mean “yes” when they say “no,” that they will falsely and vindictively accuse an innocent man of rape, and that they are easily confused, often irrationally feeling they are threatened by men when they are not. Rape law assumes that husbands should have ready sexual access to their wives and that at least some coercion is a “natural part” of the sexual act. Yet at the same time the law also assumes that a woman is to be judged as a free and autonomous being, capable of resisting force with force, of evaluating circumstances rationally, of seeing through a man's seduction if she chooses to do so. The law thereby puts women in a double bind: they are unreliable, ambivalent, and impossible to read, necessitating that victims of rape (unlike other crimes) prove lack of consent; yet the same qualities are totally ignored in evaluating how much resistance, consent, and rationality women are expected to bring to bear on an unwanted sexual advance. This is the kind of contradiction women confront over and over again in the broader social arena described by MacKinnon.

Both of these books are, in their own way, brilliant. They share, however, a common failing. Neither develops a countervision to the male world that is adequate to the transformation they advocate. MacKinnon explicitly eschews discussion of what a world in which women were not dominated by men would look like, dismissing any such vision as “fantasy” (221) and those who would have one as idealist and elitist. Her position is that instead of developing any prescriptions now for what women want (besides, simply, more power), we must wait and see who women are after they are no longer oppressed. Over and over, she assumes that underneath their oppression, women have some true essence, or essences, which only need to be discovered.

MacKinnon's faith in some authentic reality of womanhood that will emerge once women have thrown off the yoke of male domination contradicts her reliance on the importance of social construction in explaining male hegemony. MacKinnon understands that by controlling the definition of what women want, men have been able to dominate women for so long. By ignoring the importance of what will replace male hegemony, that is, what women want to replace it, however, she fails to carry forward that understanding. Freedom from a socially constructed perspective, as MacKinnon should realize, is impossible. Although our perspectives may shift (and the insights MacKinnon provides may influence us to shift them) we cannot transcend perspective; for that matter, neither can the men who now dominate us. The individual woman or man who freely chooses her or his destiny from some Archimedean vantage point is an invention of liberal ideology. MacKinnon rejects liberal ideology because its assumptions do not apply to women in our society; yet her assumption that achieving parity of power with men will enable women to freely determine and choose what they want suggests that at some deeper level she retains allegiance to this ideology.

Although we cannot transcend perspective, we must nevertheless join in the process of social construction, attempting to define now what kind of world we want to construct. Our ability to change the way things are is limited by the absence of a vision of where we are going; transformation of our values must coincide with and stimulate the undoing of our system of gender-based oppression.

Estrich works more deliberately toward a reconstruction of rape law. She deemphasizes altering the legal definition of force as a way of broadening the definition of rape—the approach used by many reformists—preferring instead to focus on the issues of the man's intent and the woman's consent. She urges both that a man must be required to act “reasonably” and that, in determining whether he has done so, a woman must be taken at her word. “Reasonable men should be held to know that no means no; and unreasonable mistakes, no matter how honestly claimed, should not exculpate” (103).

Estrich's redefinition of the crime of rape is a reasonable one. Simple rape is real rape, and the injury it causes to women should be accounted for in criminal law. Moreover, acknowledging this injury would weaken the notion that women's role is to be the submissive sexual servants of men and, thus, the gender-based hierarchy that MacKinnon describes.

Though Estrich understands the radicalism of her proposal, she does not fully acknowledge the genuine difficulties with its implementation. The legal rules that Estrich wants to eradicate—rules that require some objective manifestation of lack of consent by the woman, such as physical resistance or force by the man—exist, as Estrich points out, because of concern that some women are sometimes ambivalent about having sexual intercourse with men; that some women are sometimes turned on by and, at some level, seek to be dominated or overcome by men; that some women will seek to get back at men who have dumped them or made promises to them they did not keep, perhaps by claiming that a sexual encounter was actually rape. Laws that ignore simple rape undoubtedly help to perpetuate these patterns. But can we totally ignore these circumstances or pretend they do not exist? Indeed, an important step toward ending a gender-based hierarchy is acknowledging that women, as well as men, have been socialized to think of themselves, men, and sex in these ways.

Estrich predicts that new rules criminalizing simple rape will have a transformative effect on the social expectations of both women and men. That transformation will not be an easy one; the new rules will catch not only the man who brings a woman to his apartment and threatens her with or without physical force to have sexual intercourse with him but also the man who honestly feels that a woman has led him on, the man who is duped by a woman playing by the old rules—a woman who is ambivalent about having sex, who says “no” but gets a thrill from the seduction that she in some ways encourages but later regrets.

Does Estrich think that no such woman exists? Or that even if she does exist, the man nevertheless should be liable for action taken after the woman, however coyly, has said “no”? MacKinnon's view is that it is virtually impossible to think of any sexual encounter in our society as noncoerced, that even women who think they consent to sex have been so pressured by the terms and conditions of male hierarchy that true consent is impossible. Would MacKinnon then, have men punished for every sexual act? Estrich clearly would not, but it is not entirely clear where she would draw the line, or whether she is concerned in any way about ambivalence, manipulation, and deceit by women, or about “good faith” by men. It is not enough to answer that real injury to women has been ignored for centuries and that the advantage men have historically enjoyed over women justifies new rules that favor women over men. It seems inappropriate to use the criminal law system to punish the members of one sex for the sins of their predecessors.

Estrich and MacKinnon have each taken us far in our understanding of how the American legal structure contributes to the oppression of women. But our understanding of this oppression must always be accompanied by a continuing struggle to find a plausible and defensible alternative to this oppression. We are both on to our oppression and tricked by it. We both need men and are oppressed by them. We want intercourse and yet do not. In demanding that the world begin to shape itself to us instead of shape us, we must decide just who we are, and we must be aware of our own contradictions. MacKinnon and Estrich have told us much about how we have been “had,” but there is much still to discover about who we will be.

Notes

1. For an extended analysis of MacKinnon's book, see Katharine Bartlett, “MacKinnon's Feminism: Power on Whose Terms?” California Law Review 75 (1987): 1559.

2. Perhaps the best example is MacKinnon's insistence that “virtually every ounce of control that women won out of [the legalization of abortion] has gone directly into the hands of men—husbands, doctors, or fathers” (101). It is true that Roe v. Wade, 410 U.S. 113 (1973), and much of the case law that has followed, has defined the abortion right in terms of the decision of the woman and her physician. It is also true that access by poor women to abortions has not been secured as a matter of constitutional right (Harris v. McRae, 448 U.S. 297 [1980]). However, in an age in which doctors are, by and large, willing to perform abortions and in which funding for abortions is provided to poor women in fourteen states and in another thirty-two under some circumstances (Ellen Relkin and Sudi Solomon, “Using State Constitutions to Expand Public Funding for Abortions: Throwing Away the Carrot with the Stick,” Women's Rights Law Reporter 9, no. 1 [1986]: 27-88, esp. 27, 32, n. 11), MacKinnon's conclusion is surely overstated. With respect to the power of husbands, in particular, the Supreme Court has flatly held that states may not condition the right of a woman to an abortion on the consent of her husband (Planned Parenthood v. Central Missouri v. Danforth, 428 U.S. 52 [1976]).