Berkeley Talks transcript: Feminist legal scholar Catharine MacKinnon on the butterfly politics of #MeToo

Catharine MacKinnon: Here we are. Thank you everyone for having me and for being the presence that you are. We are here in the middle of the first mass movement against sexual abuse in the history of the world. This one sprung from the law of sexual harassment, quickly overtook it, and is shifting law, cultures, and politics everywhere. At the same time, electrifyingly demonstrating what I’m calling butterfly politics in action. You all are butterflies. In 1972, the scientist Edward Lorenz, in trying to grasp how small seemingly insignificant things ultimately became cataclysmically huge, asked the question, “Does the flap of a butterfly’s wings in Brazil set off a tornado in Texas?” Answering yes, he conceived the butterfly effect, which charmingly models how some extremely small simple actions properly targeted within structural dynamics under the right conditions can come to have complex and large effects.

Butterfly politics, in my sense, apply to change in the gender system, my target, including through law, one of our means. It means that the right small intervention in the structure of an unstable political system can ultimately produce systemic change. This is a theory of social change in power relations through activist law. The early openings of the butterfly’s wings were the legal, political, and conceptual innovations of the 1970s setting the stage for the collective social intervention of the #MeToo movement that is itself shifting gender hierarchy’s tectonic plates. I want to start with the why now question. To ask what made #MeToo possible is also to ask what for the first time made it harder to keep the sexual abuse inside than to put it out.

The elements of this also go to the crucial issues of what will extend it, what will keep it moving. One beginning point was the legal breakthrough that defined sexual harassment as sex discrimination. The experience and violation calling it what it is. That is a vector and dynamic of structural inequality, specifically gender, with major white supremacist and class-based dimensions. Sex inequality is both complex and unstable. Complex due to its multiple interacting unequal variables, race, ethnicity, religion, class, and poverty, disability, sexuality, and age for instance. All of these do a lot of their work, if not all of it, through gender. Gender does a lot of its work through them.

It’s unstable because it is based on a lie. That lie is that women are men’s natural inferiors. Men are women’s natural superiors. This often termed difference. Life refutes that lie of inferiority every day, which means it takes a lot of force to hold it together. This hierarchical system, that is superiority being above inferiority in value, worth, status, resources, power, despite some acknowledgement of the injustice of this system and actually the human and civil right to equality supposedly makes it illegal. Yeah. The system has proven extraordinarily tenacious. Framed as inequality, sexual harassment stopped being something that women or actually anyone just had to live through, breaking the age-old rule of impunity. That rule being that the more power a man has the more sex he can extract with those with less power.

This is not because it’s about power, not sex, it’s because it is about power it is about sex. If all the sexual abuse reported in the #MeToo movement, starting in late 2016, that is that aspect of the hashtag part of the movement, had remained effectively legal for the past 40 some years, as without sexual harassment law actually most of it would have, this explosive movement against it would have been unthinkable far less. It could not have been so volcanically effective without law delegitimizing sexual harassment. Calling it out for what it is in law, now this is how actually works in life.

Everything thinks it’s about legislation and going to court. I’m saying calling it out for what it really is is how it really works in life. Without that, powerful men, mostly men and actually men have power, would not be losing their jobs, their political and academic positions, their reputations, their deals today. The #MeToo movement, also obviously built on decades of collective work against sexual abuse by groups and individuals. This includes the women who organized against rape. The African-American who formed the foundation of the black civil rights movement before it became a civil rights movement. They had already organized against rape.

It includes as well all the organizers and the early plaintiffs in the both educational and employment cases in this country, by the way as was noted, all of whom actually were African-American women, and the organizers including places like Berkeley, an organization called WOASH, W-O-A-S-H, Women Organized Against Sexual Harassment, in the early ’70s. It included Professor Anita Hill’s testimony in 1991 against Clarence Thomas, Tarana Burke’s 2006 use of the phrase “MeToo” to call out the abuse in particular, but not exclusively of African-American women and girls. It includes the campus sexual assault movement of the last decade or two, which combined legal initiatives with social media intervention, inspiring the investigation of several hundred schools for inadequate response to sexual abuse on campuses by the Obama administration. It also includes the #Sayhername entity of 2014.

Another crucial moving part though of the U.S. awakening that I do want to call out here was the 2016 presidential election. Claims of sexual harassment, to go back a bit, by President Bill Clinton had previously identified the issue of sexual harassment for many people with the right use of it for political gain. That is, it made it into a morality crusade rather than a matter of coercion and exploitation. The election of Donald Trump reversed the relation of sexual harassment to conventional political alignments. It redefined the Democratic and Liberatory potential of publicly claiming sexual victimization. Instead of interfering with a respected president, try to remember this, desired policies and leadership, somebody we actual elected, the American people actually elected, instead of that and interfering with that effort, exposing these violations in one’s own life became a means of resisting the forces of darkness. Misogyny, racism, fascism, lies, stupidity, you name it.

Even as the movement revealed that perpetrators of sexual abuse were not just those ugly men over there, but actually are pretty nice men right here, this reversal of the conventional politics of the issue released a whole tsunami of enraged women. Now, despite the obvious awkward position in which this history placed Hillary Clinton in her presidential campaign, actually who even knows what confronting sexual abuse on behalf of violated women, something Michelle Dawber has called electoral kryptonite, could’ve mobilized for her campaign. What contributed to creating Trump as president, that is indifference to reports of sexual abuse, that was part of what got him elected, right?

That also fueled #MeToo, in no small part, because of its role in creating Trump as president. Now, my point here is two things. One, if Hillary Clinton had been elected #MeToo would not have occurred and, two, check it out, we are the backlash. Now, the allegations against Harvey Weinstein threw a match into this tinderbox. We had Ashley Judd’s willingness to be named, as reported by the New York Times then the New Yorker, setting off the butterfly effect that is #MeToo. Transnational scope, obviously, with all of us showing no signs of slowing.

High-quality journalism touched off this movement, followed by survivors in the millions taking to social media airwaves. Sexual abuse still finally is being reported in the established media as being as pervasive and endemic rather than sensational and exceptional as it is. This, I am saying, has made it be real. Now, women have been talking with each other about this outrage for millennia. Social media could have been just one more digital echo chamber in which a million whispers of sexual abuse went to die. A major part of the entire response, including the cultural and legal changes that we’re seeing is because the legacy media, mainstream media that is the reality and consciousness machine, which has not confined its reporting to privileged women. It has not restricted its calling out of these abuses to the most powerful and prominent men.

It is continuing its ethical, sometimes inspired reporting. As to culture now, #MeToo has not been principally driven by litigation. It is surpassing law in changing norms and providing relief for human rights violations that the law didn’t and, in some ways, in its current form couldn’t. Although law is embedded in culture and can and will change with it. Over the past couple of years, survivors in numbers and in beautiful diversity … actually, I didn’t know the collective name for butterflies until I looked it up. I love these collective names for animals. Like a pride of lions. My favorite one, until this, was an exaltation of larks. I think that’s gorgeous. Anyway, a collectivity of butterflies is this room. It’s called a kaleidoscope. Isn’t that … Yes, exactly. Exactly.

This kaleidoscope has begun to erode the two biggest cultural barriers to ending sexual harassment and actually all forms of sexual abuse in law and in life. They are, one, disbelief and, two, these are separate trivialization of its victims. Before, even when she was believed nothing he did to her mattered so much as what would be done to him if his actions were taken seriously. In some ways, it’s even worse to be believed and to have what he did not count. It just means you don’t matter. Now, this precise choreography was retraced in the hearing on Judge Kavanaugh in his Supreme Court confirmation. We had Dr. Christine Blasey Ford providing remembered facts of a sexual attack by him.

What she had to say was, “He did this.” When questioned on those facts, Judge Kavanaugh repeatedly provided his resume. I matter. Okay? These exact dynamics of inequality are what drive the system of sexual politics, in which the more power a man has the more sexual access he can get away with compelling. Now, it used to be that women accusing men of sexual abuse were the ones thrown overboard. Women’s voices recounting sexual abuse now being heard, sometimes believed, acted upon, and sometimes men being thrown overboard despite setbacks, like the Kavanaugh confirmation, this here is real change. Don’t ask me what is next. This is it.

The alchemy of #MeToo is beginning to transform what had been a privilege of power into a disgrace so despicable that not even many white upper class men feel they can afford it around then anymore. It’s a miracle when anyone claiming sexual violation is believed, but the odds have long irrelevantly been improved by any form of privilege, dominant race, ethnicity, religion, class, celebrity, nationality, caste. There’s so many forms of power, you know? Sexuality, age, gender, gender identity, or combinations of all of these. By the way, none of any of those forms of privilege have ever kept this from happening to any of the people with it. That’s what privilege gets you.

Harasser prominence and celebrity accuser did stoke some of the media fire initially, but they have not confined this movement. An attack on these hierarchies, including actually by white women celebrities, is also an attack on the fact that women’s work, like the rest of women’s lives, is often and pervasively, denigratingly sexualized. Working for tips in a restaurant to make anything close to a living wage, as we heard this morning, largely requires women in effect to sell ourselves sexually. The entertainment industry outright commodifies the sexuality of the women in it called celebrities. It is no coincidence that so many of the exposed harassers in entertainment reportedly subjected these victims to a pornographic spectator sexuality, masturbating over them in real life. Like consumers do over women in pornography.

This also partly explains why times up women, actors, frequently used and abused to create the sexualized culture in which we are buried, and who as working women almost no matter how well known or successful they are, must continue to please powerful men to continue to get work. It partly explains why they are so perfectly positioned to attack this system. Now, if the same cultural inequalities are permitted to operate in law, as operate in the behavior the law prohibits, as exemplified say by the rape myth that women who have had sex are inherently not credible. Amazing, we lost our credibility with our virginity. Go figure. Right? Equalizing attempts like sexual harassment encounter system drag. This whole log jam is finally being broken or starting to be by the #MeToo movement.

Now a bit about law, as #MeToo moves the culture beneath the law of sexual abuse to make it potentially a far more effective tool than it ever has been, some conventional systemic legal processes actually are shifting. Examples, the conviction of Bill Cosby in his second trial, which took place after the hung trial, before #MeToo; the recall of Aaron Perksy by the voters; the conviction of Nassar. The surfacing of allegations also against Catholic priests and bishops by adult survivors of childhood sexual abuse, many of them men, which began before #MeToo, increasingly includes complaints of official coverups, as well as direct acts of sexual aggression. This has arguably taken inspiration and heart and derived potency and momentum from adding those voices to a rising #MeToo movement.

So much legal change is needed. Even as #MeToo is building a rich, critical dialogue on lack of freedom, including lack of sexual freedom under conditions of inequality, in the U.S., as elsewhere, rape law continues to be infused with rape myths. Critical light has been shed on criminal law’s burden of proof and standards for due process rights of the accused. For example, confrontation and cross examination, which are inappropriately often imported either tacitly or explicitly into civil and administrative processes with no examination of the fact that they have never been held to equality standards at all. The processes for investigating and interrogating sexual violation, in most settings, remain within the chain of command of the institution, that is in essence, or at least sees itself as, being investigated rather than being independently investigated in any true sense. In any other setting this would simply be called corruption.

Transparency is not the usual rule. Secrecy still is. Protecting organizational brand, which again in any other context would simply be called a coverup. Liability standards for employers and educational institutions remain unrealistically stacked against sexual harassment survivors. Standards for retaliation, one of the biggest fears behind non-reporting, aren’t realistic in this setting. Even before a case can get started in the U.S., the federal law of discrimination has a statue of limitations of mere months, the shortest in law, which expires before almost any victim of sexual violation has got past trauma. Far less have they even entered into post traumatic stress.

Now what does this mean, if not that legislators know that discrimination is rampant and they want to disappear it? The damage caps for harassment only minimize the extent of its harms by suppressing its measure and can discourage contingent representation. No motion to change any of this, although some of it is changed in California actually, but no motion to change it exists say in the U.S. Congress. Practical steps to capture the movement’s insights could include limits on various forms of secrecy and non-transparency that hide the extent of sexual abuse and enforce survivor isolation, such as forced arbitration, silencing nondisclosure agreements, especially I think in cases of physical attacks and multiple perpetration, and settlements forcibly made confidential.

Being able to sue individual perpetrators, do this California, and their enablers jointly and severely with the institutions could shift the perceived incentives even more. Legal standards for reasonableness and unwelcomeness, which themselves refer to social standards, need to shift and they are beginning to alter. I think the only legal change in the U.S. that actually matches the movement’s scale would be the passage of an equal rights amendment. It would expand the congressional power to legislate against sexual abuse. It could and should renovate constitutional interpretation in a more substantive, including intersectional, direction and reconfigure the meaning of inequality itself, which has never seriously had to take account of the status of women.

Supported by law, sincere revulsion against sexually harassing behavior as opposed to revulsion at reports of sexually harassing behavior could change workplaces and schools, even streets. It could restrain repeat perpetrators, as well as the occasional and casual exploiter, as the law so far hasn’t. Shunning perpetrators as sex bigots who take advantage of the vulnerabilities of inequality could transform societies. Many social sectors could recognize their obligation to foster environments free from sexual objectification, pressure, or aggression. It could become a place where reporting of sexual abuse is welcomed rather than punished, where accountability not impunity prevails for individuals and institutions that engage in or enable such abuse, and where excellence and inclusion rather than hierarchy and fear, how about ending that, operate as real rather than as rhetorical standards.

Now, there’s three extensions that I won’t really have a chance to go into very fully, but I think as number one that sexual harassment is an especially appropriate vehicle for a worldwide movement because it builds in so many other abuses, which range from simple discrimination to aggression and often includes rape and raises issues of sexual interactions that are acquiesced to under conditions of unequal power. To here, I would refer you to the ICTR case of Akayesu in which the international definition of rape is based on coercion, consent being so irrelevant as not to be mentioned. I think that all of these trainings about so-called consent, etc., fail to recognize that its fundamental meaning ranges from actual desire affirmatively expressed to lost fights, to despair, to passive acquiescence, to frozen fright, to comas, and death. Making consent central to rape law is what puts victims on trial.

It is why the British conviction rape, which is a consent-only law, is an appalling 6.3% of cases brought. Consent as a concept is based in the active-passive model of sex as someone with more power does to someone with less, who lets it happen to them or tries not to. If sex happened non-consent has to be proven. Meaning the assumption still is it was consensual unless proven otherwise. Yes, can be coerced. Consent is thoroughly sex stereotyped. As a concept its given its fullest expression in the British political theory that justifies in ruling the ruled. It means acquiescence whether or not a choice was real. It’s what is attributed to you when you are rolled by power. It’s an intrinsically unequal concept, including when it works the way it’s supposed to work. It rides under the cover of desire, but it virtually is never invoked when desire is real.

Actually, in the international law of sex trafficking, which prohibits sexual exploitation in among other circumstances, circumstances of vulnerability or abuse of power, consent expressly is no defense. Sexual harassment law doesn’t use consent. It uses unwelcomeness. It’s a completely different concept. One potential insight … and it hasn’t been a big problem actually, it could’ve been, but hasn’t been. A potential insight of #MeToo is that consent, I think, needs to come out of the rape law, and that domestic laws of rape need to be based on coercion, but reconfigure the definitions of force to extend beyond physical force, to encompass all the forms of inequality that make rape possible, including race, class and poverty, sexual orientation, gender identity, disability big time, immigration status, huge. It is what gets people the drop on someone. State power; police in this country are armed, right? The consequences of military occupation. Colonialism. Climate change, for Heaven sakes, and age.

Now, finally, we get to gender. Gender stereotypes when actively deployed to force a sexual interaction all these inequalities are forms of force. We’re talking about a crime of inequality, which is what sexual abuse is in all of its forms. What this would do is flip the law of sexual assault from being something that is most easily used against men with the least power to something that is designed to be used against those with the most. Okay? Many other extensions. One would be to recognize that sexual harassment makes every form of real work into a form of prostitution and that this should teach us something about what prostitution really is, which is if you’re working in a real job and you are coerced into sexual harassment for survival to support your family that means your job has been turned into a form of prostitution, which is to say sexual delivery forced on you in order to survive to support your family, which is what prostitution is.

It’s a contentious debate, but nobody on any side of it ever says that the reason anyone is in it is anything other than urgent economic need. What this simply says is one of the insights of #MeToo, is that men and women worldwide who are subjected to this are rejecting being made into prostitutes in the paid labor force. We flip that understanding. It tells us something about what prostitution actually is for people who don’t even have the supposed rights that sexual harassment laws gives people who are in the paid labor force.

The third link, I think there are lessons in #MeToo for the connection between sexual harassment as a process and sexual abuse in childhood. Sexual abuse in childhood is like sexual harassment in that it manipulates trust and dependency. It institutionally betrays people who report. Sexual abuse of children is the foundational practice, I think, of the entire gender system. It is the foundation of prostitution and trafficking. Most people who are in it were sexually abused as children and entered prostitution as children. Both children and prostituted people are barely surviving, if that, through serial rape and molestation under circumstances under which they have no realistic options and from which there are few possibilities of escape.

Sexual abuse in childhood is what rape and sexual harassment and prostitution are all about. That is sex forced on those with less power by those with more made definitive of masculinity and femininity, which is the dynamic pornography sexualize. Many, if not most, rapists were sexually abused as children. To escape this being done to them, a choice they are given, many men become masculine. Sexualizing power over others. To survive under this system, girls, we are taught to acquiesce in femininity, sexualizing power over us. Sometimes calling it empowerment.

I think until we address this we haven’t done what we need to do. With all this to be concerned about, women customarily shift our attention to what we call backlash. Their response to our response to their abuse. Point one, there is no backlash without front lash. Whenever we are found in something less than the prone position, whenever we stand up what we most dread apparently is this thing called backlash. What I want to say is any bit of power we gain will be called going too far. Anytime they don’t get away with no consequences it will be called by us a lack of due process. Anytime we say what he did, making them look like who they are, it will be called defamatory. Anytime anyone is incapable of seeing women as anything other than a sexual object we will have the Pence effect. Anytime there is any real sanction against any of this it will be called the death penalty.

Yes, they intend to keep their sexual access to us. Yes, they are already entrenched in power and established institutions and doctrines to support them. Yes, we haven’t won yet, but we are winning. We finally have our tornado and not just in Texas. A lot of the sexual harassment that has been a constant condition of women’s lives is probably not happening right at this exact moment. As all of you butterflies take flight from underneath the shadow of the law, we have the first systemic uplift in women’s status since the vote. Imagine a revolution without violence against domination and aggression. Envision a moment of truth, a moment of transformation for the sexually violated, toward a more equal, therefore, more peaceful and just world. It is happening all over the world, all around us right now. Thank you.