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Legal Weapon | The Nation

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Legal Weapon

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Inequality on the basis of sex is a pervasive reality of women's lives all over the world. So is sex-related violence. Rape by strangers and acquaintances, rape within marriage, domestic violence, trafficking into sex work, the abuse of women and girls in the pornography industry: In all these ways, argues Catharine MacKinnon, women suffer aggression and exploitation, "because we are women, systemically and systematically." Although violence against women is certain to be underreported and undercounted, data still show a tremendous amount of it everywhere. (Cross-cultural studies cited by MacKinnon show that rates of violent domestic abuse are similar in the United States, Japan and India.) As a 1989 United Nations report summarizes, "The risk of violence and violation within the household is one thing women, irrespective of their social position, creed, colour or culture, share in common." So, too, is vulnerability to rape in wartime--the well-documented mass rapes of Bosnian women being just one recent example of an appalling reality that has characterized most armed conflicts.

About the Author

Martha Nussbaum
Martha Nussbaum, a professor of philosophy and law at the University of Chicago, is the author of numerous books, most...

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Despite the prevalence of these crimes, they have not been well addressed under international human rights law--if, indeed, they have been addressed at all. Typically, there has been what MacKinnon calls a "double-edged denial": The abuse is considered either too extraordinary to be believed or too ordinary to constitute a major human rights violation. Or, as MacKinnon says, "If it's happening, it's not so bad, and if it's really bad, it isn't happening." Until recently, abuses like rape and sexual torture lacked good human rights standards because human rights norms were typically devised by men thinking about men's lives. In other words, "If men don't need it, women don't get it." What this lack of recognition has meant is that women have not yet become fully human in the legal and political sense, bearers of equal, enforceable human rights.

In recent years there has been progress. International agreements, above all the 1979 Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), have given salience to sex-specific abuses such as domestic violence and sexual harassment. Creative use of existing laws has made it possible, in some instances, for women to win against their abusers in cases that cross national boundary lines. Meanwhile, women organizing through the informal social networks of nongovernmental organizations and the international women's movement have pressured states and the international community to act on issues like trafficking and rape in war. Indeed, as MacKinnon notes, "Women's resistance to their status and treatment" is now "the cutting edge of change in international human rights."

MacKinnon herself has played a moving role in these developments. Because she is so well known as a feminist thinker, it is easy to forget that MacKinnon is also a lawyer, and a very shrewd one. Representing a group of women who had been raped during the Bosnian conflict, in a case called Kadic v. Karadzic, she employed a little-known American law, the Alien Tort Claims Act, which allows plaintiffs to file civil suits against foreign citizens in US courts, provided that the defendant can be served on US soil. Previous users of the statute had been isolated individuals. While rejecting a class-action approach on the grounds that it would impose plaintiff status on women who might be unwilling to join in--the process, she argues, must be "accountable, personal, and responsive"--MacKinnon brought suit against Bosnian Serb leader Radovan Karadzic on behalf of a specific group of female clients, seeking damages for injuries consisting in "genocidal sexual atrocities perpetrated as a result of [his] policy of ethnic cleansing." Damages were sought for the named individuals, as was an injunction that Karadzic order the genocide to stop. On August 10, 2000, a jury in the State of New York awarded the plaintiffs a total of $745 million in compensatory and punitive damages and a permanent injunction. For her role in this landmark prosecution, MacKinnon was honored as one of the finalists in the 2001 "trial lawyer of the year" competition by the Trial Lawyers for Public Justice.

Now MacKinnon has gathered the speeches and articles that she has delivered over the past twenty years on sex equality and international law. The result is a sparkling book, perhaps her finest. Unsettling in the best sort of way, Are Women Human? shows her to be not only a prodigiously creative feminist thinker who can see the world from a fresh angle like nobody else (and I mean the angle of reality, as opposed to the usual one of half-reality) but also one of our most creative thinkers about international law. As elsewhere in MacKinnon's work, we find plenty of trenchant and eloquent writing; but we also find more systematic analysis and more extensive scholarship than we sometimes get, and the book is the richer for it.

MacKinnon's central theme, repeatedly and convincingly mined, is the hypocrisy of the international system when it faces up to some crimes against humanity but fails to confront similar harms when they happen to women, often on a daily basis. There is a category of torture, and we think we know how to define it. We think we know what it does: It uses violence to control and intimidate. And yet when violence is used to control and intimidate women "in homes in Nebraska...rather than prison cells in Chile," we don't call it torture, and we somehow think it is not the same thing. Torture in Chile is not explained away as the work of isolated sick individuals. We know it is political, and we can see how systemic it often is. When violence happens to women in Nebraska, we say, Oh well, that was only some sicko, and men really aren't like that. Well, given the numbers, shouldn't we ask more questions about that?

Again, we have a concept of war, and we think we know what war is: People get maimed and killed fighting over land and power. And yet when women get raped and beaten up by men who want to control them, we pay little heed. "It is hard to avoid the impression that what is called war is what men make against each other, and what they do to women is called everyday life."

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