David Mertz
April, 1993
The recent discussion in this group about the use of a university sexual-harrassment code to blackmail a lecturer about a grade has piqued my thought about a related legal issue. In particular, the original poster stated something to the effect that the sexual-harrassment code of his school defined sexual-harrassment in wholly in terms of the perceived harrassment by the alleged "victim." I don't know the exact wording at his school, nor do I remember off the top of my head what school he was at--but it's certainly true that there has been a significant move in sexual-harrassment codes in this general direction.
The notion of defining sexual-harrassment, or other legally actionable situations, in terms of the perceptions of alleged victims arises out of some moves in "femininst" legal philosphy made by Catherine MacKinnon, and a few others; and these moves have directly and indirectly been very influential in a great deal of judicial thinking of the last decade. Or, short of that, MacKinnon's legal philosophy has moved in parallel with some broader currents--most of which are clearly associated with a highly carceral tendency in society, and with right-wing opposition to civil and juridical rights of the accused. It is thus that I put feminist above in double, "scare" quotes. I believe this type of legal philosphy is deeply antithetical to the aims of feminism.
What is the move made by MacKinnon, and others? In part, it concerns a distinction made by MacKinnon between a "reasonable man" and a "reasonable woman". The first--the "reasonable man" (or nowadays, more often simply "reasonable person")--is a legal fiction, or abstraction, expressing a kind of normative epistemic relation of a person to her actions. That is, there are certain things that such an hypothetical "reasonable person" is expected to know about the legality of actions she might take. It is no legal defense for an accused (or, similarly, for a litigant in a civil case) to claim--even truthfully and provably--that she personally did not know of the illegality of an action she took. It is, however, a recognized legal defense to claim that a "reasonable person" acting as she did would not be aware of the illegality of an action. That is, people are not legally responsible on the basis of their actual knowledge of law and empirical reality, but on the basis of a certain minimum normative standard of what every person is "commanded to know." If an accused cannot be considered, by legal fiat, to have been commanded-to-know a given fact, she cannot be held culpable on the basis of the fact. Inversely, if an accused is considered to have been "commanded-to-know"--regardless of her actual epistemic state--she is held culpable. (Of course, there are always exceptions, such as the Bernard Getz case where is actual fear was held as grounds for a self-defense plea, despite no claim being proven that such a fear was reasonable--but that's simply BAD LAW). This can be clarified with a brief example. Suppose a driver is charged with violating a speed limit. A defense claiming that she did not see the speed-limit sign has no legal weight--so long as she could "reasonably have been expected" to see the sign. If however, a "reasonable person" would not have seen the sign--for example, because it had been knocked-down or obstructed by another sign--then the driver cannot (in principle) be convicted on the charge. Of course, there are guidelines for what's reasonable to expect, even lacking a sign: 100mph in a 35mph zone is awfully likely not to satisfy a reasonable-person standard, sign or no-sign.
MacKinnon argues against this standard of these last 300 years of the Anglo-American legal tradition. She claims that the societal position of women and men are so fundamentally different that what may constitute reasonable action from the POV of a male assailant, may nontheless constitute a genuine crime from the POV of a reasonable female "victim." Furthermore, MacKinnon supposes, the "reasonable-person" standard of legal tradition is fundamentally a "reasonable-MAN" standard (as, indeed, it is sometimes explicitly called in some court opinions). The kinds of examples MacKinnon provides are of crimes such as sexual-harrassment, rape, or exposure to pornography (constituting, roughly, one of the former two crimes). In her example, a remark made by a male boss to a female employee may, by the "reasonable-man" standard, not be known to constitute an act of intimidation; and yet, a reasonable-woman might be intimidated by such a remark. Similarly, claims MacKinnon, such gaps may exist in rape cases between what a male "rapist" and a female "victim" may reasonably consider consent. Needless to say, MacKinnon argues that the latter "reasonable" position ought to be the standard in establishing legal culpability. And such a standard is essentially what's being implemented in many institutional sexual-harrassment guidelines--though only rarely, so far, in actual laws.
The only problem with the above move is that it COMPLETELY abandons the protections of juridical due-process, presumption of innocence, and most other rights of the accused. Although it's nearly preposterous to accuse MacKinnon of acting in good-faith (given her extensive legal knowledge); however, many persons--many feminists, even--upon first hearing her argument think it deserves serious consideration; and even feel a certain sympathy, given the prevalence of unactioned sexual-harrassment, rape, etc. which clearly occur. After all, "why should insensitive male bosses continue to be allowed by courts to sexually-harrass their female employees?!"-one might ask with outrage. If such men can simply claim to courts that they did not know women were offended by their actions, is not a different legal standard appropriate? One which might hold such men more legally culpable? In short, the answer must be -NO! But fully to understand just why it's so very imperative that this answer be given, let me try to show some of what's elided and swept out of sight in MacKinnon's style of rhetoric.
A distinction between procedure and outcome is central to American jurisprudence. And it is in the former that all civil-rights protections lay. One is not found "not guilty" of a crime because one is innocent, but because a prosecutor is unable legally to establish your guilt. And one is not found "guilty" because one is--in some metaphysical sense--guilty, but because guilt may be proven beyond a reasonable doubt in a court of law. If we are to live under a society of law, then rigorous conformity of procedure must always be held more important than accuracy of outcome--for otherwise, in the abandonment of procedural precedence punishment is accorded only through the political mandates of prosecutors, cops and judges, and society becomes a society of absolute tyranny: even if it becomes a tyranny of a momentary majority. In the curtailing of individual rights, and of due process, the call is always made to produce more accurate outcomes--and relatedly, to bring about the greatest societal good through prosecution. This is what's involved in the so- called "victims-rights" movement; this is what's involved in the Reinquist Court's 1986 (?) decision to allow illegally seized ("Tainted") evidence back into court; this is what's involved in every vigilante and Fascist political movement; and this is what's clearly involved in MacKinnon's legal philosophy.
In specifically claiming a gap between the knowledge of a "reasonable male actor" and that of a "reasonable female victim", MacKinnon abandons the principle that legal actionability ought to follow from knowable decisions made by persons, and substitutes the principle of greater societal good--or, perhaps, greater good for a certain section of society (women). These two standards need not always conflict; in fact, the need not conflict often, or even ever. But insofar as a possibility of conflict between the standards exists--and insofar as it is specifically, and necessarily, postulated to occur by MacKinnon--there come into being a class of cases where conviction of a crime becomes proper for a class of people who could not have reasonably known they were committing any crime. Whether this class of people would be tiny or huge is not knowable in advance of its concrete adoption into the law (which has, thankfully, not occurred significantly as yet)--but the one thing of which we could be certain is that a change in legal procedure and principle so sweeping as MacKinnon suggests would not remain confined to those gender- specific cases she duplicitously gives as sole examples. Her principle allowing for legal culpability in the absence of knowable culpability is precisely the sort of totalitarian principle which inevitably and always grows in a self-perpetuating vicious circle. It also seems exceedingly unlikely that a principle such as hers would be applied primarily, nor even often, in the sexual-harrassment type cases she discusses. Instead we would see increasingly many blacks arrested or killed for appearing "threatening" according to a principle reasonable only to the white racists viewing them (as in the Getz case); and increasingly many working-class suspects "justifiably" arrested on the sole grounds that a judgement of their criminal nature is reasonable from the cops' POV.
Furthermore, the shift in standard MacKinnon argues, using the example of sexual-harrassment cases, is wholly unnecessary even (or especially) in those very cases she argues for. What is required is NOT a shift in the perspective from which an action is judged unreasonable, but simply a change in the standards to which a (male) person increasingly many should be reasonably held. We need not perform the metaphysical contortions of MacKinnon construing a crime committed by an unknowing male boss when we may simply argue that such a man might reasonably have been expected to know more than he empirically did. Culpability should well be assigned to those clinging to a deliberate ignorance, but it must not be assigned to those whose ignorance is purely metaphysical--determined lifelong, and in advance, by their gender.
Yours, Lulu...
Alden Gannon wrote in response to the above "Reasonable Men" and "Reasonable Women" essay:
MacKinnon does not venture to argue that defendants should no longer be accorded the right to due process. Rather, she proposes a different standard to which all defendants should be measured. Her system is still procedural. You can just as well conform to the standard of reasonable victim as to reasonable perpetrator. The question is one of accuracy.
I think you may not have this quite right. If one is a "victim," there is no requirement nor even sense in legal conformity or non-conformity. It's the accused who are judged to conform or not with the legal requirements upon them. That's the point of all criminal procedures and many civil, as well. However, I may indeed have been wrong in claiming MacK's proposed legal measures are not still "procedural"... it might be argued that a specified requirement for judging social good is still "procedural" insofar as it is based on normative judicial fictions and rules. I think due-process is lost, even accepting this argument momentarily, since guilt or innocence is no longer a question of knowable actions taken by a defendent; but it might be substantative more than procedural due-process which is abandoned. At any rate, I cannot dismiss such a suggestion without more argument than I have thus far provided. So my debt (and acknowledgement, if you want) is to you for raising this.
Yes, as I understand it, this is exactly the impetus for MacKinnon's position. Furthermore, MacKinnon's fictitious "reasonable woman" is defined by a set of criteria to which the defendent is compared. Should the legal system conclude that the male actor transgressed against the "reasonable woman," the view of the actual "victim" is not judicially relevant. Thus, it is possible for a male actor to commit a crime of which he was not aware against a victim who was not aware of the crime, either, or even suffered from it in any way. The male actor was guilty of transgressing against the fictitious "reasonable woman," and hence society at large. This further radicalizes MacKinnnon's view.
This is a very nice formulation. I wish I would have observed the proposed change in this same example in my post.
I argue that MacKinnon's proposed shift in standards (to "reasonable victim") and your suggested modification to the "reasonable actor" standard are equivalent in result, and both fraught with the same opportunities for inaccuracy. MacKinnon's fictitious "reasonable woman" is defined by a set of criteria to which the defendent is compared. To achieve MacKinnon's desired result (that sexual harassers be brought to justice), you suggest, if I understand you correctly, applying the same criteria to the "reasonable person" standard, and then arguing legal fiat to assign the epistimological state of the perpetrator. You claim that MacKinnon's standard could create a class of people who cannot be expected to be aware of committing the crime with which they are charged. You suggest taking this same set of people and simply using legal fiat to assign to them criminal intent. The net result is the same.
I'm afraid you're wrong in this part. I do not propose any procedural change, so regardless of the effect in concrete cases, my suggestion does not abandon due-process protections. The kind of change I suggest, in fact, is quite banal and ordinary, and is already going on. Legal fiat exist in all traditional jurisprudence, so I do not add anything in this regard. Just consider the example I mentioned about speed-limits. One is presumed to have seen properly posted signs by legal-fiat, regardless of whether one actually did see them. Normative epistemological state is always created by legal- fiat; that's why "ignorance of the law is no excuse." I suggested that, perhaps, in previous sexual-harrassment cases, an insufficient normative epistemological state is presumed but such is the stuff of ordinary legal argument. One might have an exactly analogous argument in regard to the frequency with which speed-limit signs need be posted in order that a "reasonable person" can be expected to see them. Perhaps a previous case found once a mile sufficient, while I might argue that every half-mile should be required (or, were I a prosecutor, perhaps that every two-miles is often enough :-)). There's ALWAYS some particular epistemic state demanded under the law, but arguing the details of this state does not necessarily touch on any due-process issues (of course, it might if the standard is unduly burdensome for some class of people). What MacK does is entirely different from this: she argues that there ought to be a class of cases where the epistemic state of an accused might be reasonable, and yet irrelevant to guilt!!