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In Other Words: Putting Sex and Pornography in Context

Published online by Cambridge University Press:  09 June 2015

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Extract

We cannot ask reason to take us across the gulfs of the absurd. Only the imagination can get us out of the eternal present.

—Ursula Le Guin

Law controls sexuality not only by its coercive powers, but also through its discursive constructions. While there are other social forces and influences in play, sexual identities and sexual practices are framed within the ample reach of law’s linguistic domain. As well as enforcing prevailing moral norms and deciding the scope of socially-validated sexual behaviour, law also determines what counts as sex in the tableau of human behaviour. Although the relationship of law, sexuality and sex is always ideologically fraught, it is particularly so in regard to graphic representations of sex and sexuality. The debate around this so-called pornography hits a very sensitive nerve in the body politic. Indeed, in recent years, few social practices have managed to arouse as much intellectual angst and political anger as pornography. In part, this is because the debate seems to cut across traditional political lines; it sets traditional enemies against each other and fosters strange alliances among them. None of this should be too surprising as pornography touches profound issues which strike at the very heart of those dilemmas, difficulties and denials that comprise the human condition.

Type
Research Article
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1995

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References

I am very grateful to Harry Arthurs, Adam Bernstein, Brenda Cossman, Les Green, Robert Maisey, Jim Smith and Wendy Rambo for their encouragement and help. Special thanks to Pam Marshallwho showed me, as she put it, that “it is possible for a feminist to have sex as well as gender.” A revised version of this essay will appear as a chapter in a forthcoming book, entitled Swimming With Turtles: Law, Politics and Postmodernism.

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5. Rorty, R., Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982) at 19.Google Scholar At this point, it seems important to state the position from which I enter the debate. I am, among other things, a white, heterosexual, middle-class father of three daughters. For further details on my identity and how and why it might matter, see Hutchinson, A., “Identity Crisis: The Politics of Interpretation” (1992) 26 New Eng. L. Rev. 1173.Google Scholar Although I want to challenge the existence of sexism, racism and homophobia in society, this no more entitles me to call myself a feminist than being against anti-semitism entitles me to call myself Jewish. A similar argument is made in Peller, G., “Race Consciousness” (1990) Duke L.J. 758.Google Scholar

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6. Whereas MacKinnon insists that “[postmodernism… is predicated on obscuring… thisfunction of language in social hierarchy” (123), I maintain that this function is a mainstay of a postmodernist appreciation of discourse. However, less hangs onwhether MacKinnon and I disagreeover what to call this view of discourse than on the more significantdifferences over what it means to adopt such a discursive understanding of social reality.

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21. There is a reading of this statement that interprets it to mean that pornography, like rape, is a sex act, but that it is not the same kind of sex act as rape. However, in the context of Only Words generally and MacKinnon’s overall argument, it is difficult to sustain this reading with any confidence.

22. The issue of what the statement that ‘all men are potentialrapists’ means and implies is of greater significance in any broader evaluation of MacKinnon’s work. See below in text at pages 119–121.

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25. Ibid.

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28. Feminism, supra note 3 at 12.

29. For a different account of this claim from a heterosexual maleperspective, see Kennedy, D., Sexy Dressing Etc. (Cambridge, MA: Harvard University Press, 1993)at 137.Google Scholar

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34. I deliberately use ‘sex trade workers’ instead of ‘prostitution’ as the latter carries too much moral baggage. On the debate generally, see Pateman, C., The Sexual Contract (Stanford, CA: Stanford University Press, 1988);Google Scholar Pateman, C., “Defending Prostitution: Charges against Ericsson” in Sunstein, C., ed., Feminism & Political Theory (Chicago: University of Chicago Press, 1990) 201;Google Scholar Shrage, L., “Should Feminists Oppose Prostitution?” in Sunstein, , ed., ibid, at 185;Google Scholar Giobbe, E., “Confronting the Liberal Lies About Prostitution”; in Leidholt, D. & Raymond, J., eds, The Sexual Liberals and the Attack on Feminism (New York: Pergamon Press, 1990) 67;Google Scholar and Baldwin, M., “Split at the Root: Prostitution And Feminist Discourses Of Law Reform” (1992) 5 Yale J. of L. and Feminism 47.Google Scholar

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39. Ibid, at 74 and 75.

40. Rorty, R., “Feminism And Pragmatism” (1990) 30 (2) Mich. Q. Rev. 231 at 249.Google Scholar

41. Feminism, supra note 3 at 218.

42. Frug, supra note 11 at 107. For a powerful and eloquent, if a little naive, antidote to MacKinnon’s pessimism, see Tisdale, S., Talk Dirty to Me: A Personal Philosophy of Sex (New York: Doubleday, 1994).Google Scholar

43. It is with some obvious hesitation that I approach the personal aspects of MacKinnon’s life. However, I refer only to facts and circumstances that she herself has put into the public forum through interviews and statements that she has made. After all, MacKinnon has done much to popularise the feminist credo that “the personal is political.” On the relation between the lives of writers and their writings, see Hutchinson, supra note 5.

44. Masson, as quoted in Smith, , “Love Is Strange: The Crusading Feminist and The Repentant WomanizerNew York (22 March 1993).Google Scholar

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46. For an account of MacKinnon’s efforts to introduce a law against pornography, see Dworkin, A. & MacKinnon, C. Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis, MN: Organizing Against Pornography, 1988).Google Scholar

47. For a general critique of such causal claims about pornography, see Burstyn, V., ed., Women Against Censorship (Vancouver: Douglas & Mclntyre, 1985);Google Scholar Segal, L. & Macintosh, M., eds, Sex Exposed: Sexuality and the Pornography Debate (London: Virago Press, 1992)Google Scholar and Gibson, P. & Gibson, R., eds, Dirty Looks: Women, Pornography, Power (London: BFI Publishing, 1993).Google Scholar

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52. West, R., “The Feminist-Conservative Anti-Pornography Alliance and the 1986 Attorney General’s Commission on Pornography Report” [1987] A.B.F. Res. J. 681 at 696Google Scholar. See, also, Munt, S., ed., New Lesbian Criticism: Literary and Cultural Readings (New York: Harvester Wheatsheaf, 1992).Google Scholar

53. Above in text at pages 120–124.

54. See Fish, supra note 14 at 31–50 and Hutchinson, supra note 5 at 1195–1202.

55. State, supra note 3 at xiii. See, also, Feminism, supra note 3 at 26.

56. See Downs, D., The New Politics of Pornography (Chicago: University of Chicago Press, 1989).Google Scholar

57. R. v. Butler, [1992] 1 S.C.R. 452.

58. R. v. Keegstra, [1990] 3 S.C.R. 697. In both thiscase and Butler, MacKinnon contributed to the brief of the Women’s Legal Education and ActionFund (LEAF) which took a line that was almost pure MacKinnon in its general structure and intellectualthrust.

59. I do not want to be read as saying that Canada is no different from the United States. I think that MacKinnon is probably right in thinking that things are not as bad in Canada, but this is more a matter of degree than kind. It is entirely too romantic to suggest that Canadians are not in thrall to ‘the marketplace of ideas’ and its attendant ideology. See Hutchinson, A., Waiting for CORAF: A Critique of Law and Rights (forthcoming, 1995).Google Scholar

60. Keegstra, supra note 58 at 733–34 and 755–57 per Dickson C.J. and Butler, supra note 57 at 490–93 per Sopinka J. However, the court did accept mat there was a causal connection between pornography and harm to women. See Hogg, P., Constitutional Law of Canada, 3rd ed. (Toronto: Carswell, 1992) at 977–79.Google Scholar In Keegstra, the minority was even more dismissive of equality concerns and held that the Charter’s equality provision was not applicable at all to speech matters. Ibid, at 804 per McLachlin J. For a different reading of Keegstra, see Fish, supra note 14 at 104–05.

61. Cossman, Brenda, “Feminist Fashion or Morality in Drag?: The Sexual Subtext of The Butler Decision” (Feb. 1994). Unpublished.Google Scholar

62. Ibid, at 2.

63. Bell, D.,And We are Not Saved: The Elusive Quest for Racial Justice (New York: Basic Books, 1987) at 2574, 140–61 and 215–35.Google Scholar

64. See Glad Day Bookshop Inc. v. Deputy Minister of National Revenue (Customs & Excise) (July 14,1992), Doc. 619/90 (Ont. Gen. Div.) and R. v. Scythes (January 16,1993), Paris J. (Ont. Prov. Div.). For a general discussion, see Cossman, supra note 61 and D. Barclay, “Obscenity Chill—Artists In A Post-Butler Era” (1993) 16 Fuse 2. The main action has been through customs seizures rather than criminal prosecutions. See S. Chernos, “Little Sister’s Still Up Against Big Brother”(Dec 1993) This Magazine 6 and R. Hough, “Degrading Customs” Globe and Mail (12 Feb. 1994) D-l and 5.

65. Rorty, supra note 10 at 392. Like law and legal theory, philosophyis an authoritarian business. See Walzer, M., “Philosophy and Democracy” (1981) 9 Pol. Theory 379.Google Scholar

66. This is a reference to the familiar story about the universe being“turtles all the way down” which has become something of a chestnut in jurisprudential contexts. See Singer, J., “Radical Moderation” [1985] A.B.F. Res. J. 329 at 329–30.Google Scholar For a more extended account of the attitudes and beliefs that comprise postmodernism, see A. Hutchinson, Swimming With Turtles: Law, Politics and Postmodernism (forthcoming).

67. Vance, C., “Feminist Fundamentalism—Women Against Images” (1993) 29 Art In America 36.Google Scholar

68. See, for example, Goodrich, P., “Sleeping With The Enemy: An Essay on the Politics of Critical Legal Studies in America” (1993) 68 N. Y. U. L. Rev. 389 at 396.Google Scholar But what would amount to a truly radical politics that did not slide into the safety of pipe-dreaming or the terror of armed struggle? For an outline of how politics can be both visionary and postmodern, see Hutchinson, A., “Doing The Right Thing? Toward A Postmodern Politics” (1992) 26 L. & Soc’y Rev. 773.CrossRefGoogle Scholar

69. See Hunt, Lynn, ed., The Invention of Pornography: Obscenity and the Origins of Modernity 1500–1800 (New York: Zone Books, 1993).Google Scholar

70. Cossman, supra note 61 at 35.

71. Salinger, J.D., The Catcher in the Rye (New York: Modern Library, 1945).Google Scholar

72. Feminism, supra note 3 at 218.

73. Kennedy, supra note 29 at 184.

74. While humour can be socially disruptive and politically liberating, it is too often the chosen medium for cowards and bigots to make slurs that are not as convenientlyor acceptably expressed in other modes of speech. It is a disciplinary code and any failure to laugh is often met by the derisory—“don’t you have a sense of humour?” See Cottom, D., Text and Culture: The Politics of Interpretation (Minneapolis: University of Minnesota Press, 1989) at 348.Google Scholar