23 September 2020

MacKinnon, Misogyny and Speech

'Catharine MacKinnon and the Common Law' (Virginia Public Law and Legal Theory Research Paper No 2020-69) by Charles L Barzun comments

Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power. 

This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.

In the UK the Law Commission making proposals to reform hate crime laws to remove the disparity in the way hate crime laws treat each protected characteristic – race, religion, sexual orientation, disability and transgender identity. It also proposes that sex or gender be added to the protected characteristics for the first time. 

The Commission comments that 

hate crime refers to existing criminal offences (such as assault, harassment or criminal damage) where the victim is targeted on the basis of hostility towards one or more protected characteristic. There are also specific hate speech offences: the offences of “stirring up hatred”, and the racist chanting at football matches. However, a number of issues have been raised over how hate crime laws work in practice. The laws are complex, spread across different statutes and use multiple overlapping legal mechanisms. Not all five characteristics are protected equally by the law, and campaigners have also argued for additional characteristics such as sex/gender to be included. 

Its consequent proposals to improve hate crime laws include: 

  •  Adding sex or gender to the protected characteristics. 
  • Establishing criteria for deciding whether any additional characteristics should be recognised in hate crime laws, and consulting further on a range of other characteristics, notably “age”. 
  • Extending the protections of aggravated offences and stirring up hatred offences to cover all current protected characteristics, but also any characteristics added in the future (including sex or gender). This would ensure all characteristics are protected equally. 
  • Reformulating the offences of stirring up hatred to focus on deliberate incitement of hatred, providing greater protection for freedom of speech where no intent to incite hatred can be proven. 
  • Expanding the offence of racist chanting at football matches to cover homophobic chanting, and other forms of behaviour, such as gestures and throwing missiles at players. 

It notes that

 Hate crime laws in England and Wales include multiple, overlapping legal mechanisms. These include aggravated offences, where a more serious form of an offence such as assault, harassment or criminal damage is prosecuted, and enhanced sentences, which require a sentence to be increased because of the hate crime element. There are also separate offences for stirring up racial hatred, and for stirring up hatred on the basis of religion or sexual orientation. For racial hatred, the behaviour must be “threatening, abusive or insulting.” On the basis of religion or sexual orientation, the words or conduct must be threatening (not merely abusive or insulting). 

However, the law does not work as well as it should. For example: The complexity and lack of clarity in the current laws can make them hard to understand. The laws do not operate consistently in the way that the existing five characteristics are protected in law – for example LGBT and disabled people receive less protection. In practice, we have also heard that disability hate crime is particularly difficult to prosecute, as it often takes more subtle forms and can be hard to prove. There have also been calls for hate crime laws to be expanded to include new protected characteristics to tackle hatred such as misogyny and ageism, and hostility towards other groups such as homeless people, sex workers, people who hold non-religious philosophical beliefs (for example, humanists) and alternative subcultures (for example goths or punks). Some legal definitions including the definition of “transgender” in the current laws have also been criticised for using outdated language.

The Commission is also consulting on 'whether other characteristics and groups such as age, sex workers, homelessness, alternative subcultures (such as being a goth) and philosophical beliefs (such as humanism) should be protected'.