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.
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.