again indicate the influence of the core feminist bcHef thatrnwomen do not, perhaps cannot, lie when alleging victimization.rnThis point is sufficiently certain to justify granting a literal licensernto kill.rnAnd the situation is likely to get worse. In 1992, the AmericanrnMedical Association decreed that all doctors should screenrnwomen patients for what they believe to be signs of domesticrnviolence or abuse. If the workings of child abuse legislation arernanything to go by, we are shortly going to see an explosion ofrndomestic violence statistics, usually based on the most questionablernevidence. These guesstimates will be used to argue forrnstill further expansions of legal devices such as PFAs and stalkerrnlaws, as well as other even more appalling legal novelties.rnBut ill-defined statutes and draconian penalties are by nornmeans the preserve of the criminal law. Feminist legal theoristsrnhave also been working intensely in the realm of tort, seekingrnways in which “patriarchal” behavior can be modified or deterredrnbv the use of financial damages. Senator Biden’s recentrnbill to combat violence against women made great use of thernthreat of civil litigation. It classified rape as a crime of “hate”rnor “bias,” thus clearing the way for financial settlements underrncivil rights legislation.rnThere are many advantages to this approach, not least in thatrncivil cases require a lower standard of proof than criminal onesrn(“preponderance of evidence” as opposed to “beyond a reasonablerndoubt”). Also, the popularity of any form of civil litigationrncreates a bandwagon effect, in that more and morernlawyers specialize in this particular subfield, creating a politicalrncaucus for the preservation and extension of the law, while increasedrnmedia attention tends to create greater sympathyrnamong judges and jurors. A widely used form of civil litigationrninevitably causes the creation of a network of supporters withrnstrong vested interests in the survival and continuation of thernproblem.rnIn the last decade, feminist advocates of legal change havernfocused their sharpest attack on what they term “pornography”;rnand again, the campaign is justified on the grounds of preventingrnsexual victimization. It is universally accepted in theserncircles that pornography incites violent behavior, such as rapernand serial homicide (as the saying goes, “pornography is therntheory; rape is the practice”). If that is correct (a major “if”)rnthen pornography should be seen as a violation of women’srnrights, and it is therefore subject to the enforcement mechanismsrndesigned to prevent other forms of group discriminationrnor persecution, with sanctions including fines and civil penalties.rnThis view—developed by feminist theorists CatharinernMacKinnon and Andrea Dworkin—was tested in city ordinancesrnpassed in Minneapolis and Indianapolis. Most of thesernexperiments faced severe legal challenges and were defeated byrnabout 1985; but in 1992, the MacKinnon principle was upheldrnby the Supreme Court of Canada.rnIf sexually explicit material cannot be eliminated by law,rnthen at least the producers should be made liable for its supposedrnconsequences, and this is the principle of another recentrnfederal bill designed to identify and protect “pornography victims.”rnThis would permit victims of sexual crimes to sue thernproducers or distributors of the material, if it could be shownrnthat the pornographic material contributed to the commissionrnof the crime.rnThe antipornography campaign might seem attractive tornpeople who would normally be hostile to feminist legal innovations,rnand the city ordinances of the mid-80’s won the supportrnof moral conservatives and religious fundamentalists. Inrnaddition, political conservatives and libertarians often differ onrnthe issue of pornography, and whether its suppression would inrnfact infringe on rights of free speech and expression. However,rnthe particular nature of the feminist assault deserves attention,rnnot least because of its definition of pornography, or lackrnthereof.rnOf course, the term “pornography” contains a subjective valuernjudgment (“I read erotic literature; he reads pornography”).rnIn the Indianapolis ordinance, the definition involved “thernsexually explicit subordination of women, graphically depicted,rnwhether in pictures or in words”; and it soon became apparentrnthat the law’s supporters took “subordination” to include consensualrnheterosexual intercourse. Nor was this a simple error orrnoversight, as MacKinnon and Dworkin do in fact hold that suchrn”normal” sexual behavior is exploitative, and thus differs fromrnrape only in degree. It was this extreme and somewhat bizarrernposition that divided feminist opinion on the issue in the mid-rn1980’s; but the recent Canadian decision accepted the principlernthat female subordination is the defining characteristic ofrnpornography.rnBut even excluding the question of “straight” sex, is it reallyrnacceptable to regard depictions of sexuality as ipso facto pornographic?rnThe potential for such a broad assault is certainlyrnthere, and the possibilities are endless. For example, cases of serialrnkillers over the last century suggest that by far the most frequentrninspiration claimed for their atrocities is the florid imageryrnoffered by the book of Revelations, especially in thernpassages denouncing the “Whore of Babylon” and the ScarletrnWoman. Would the proposed federal legislation permit lawsuitsrnagainst Bible distributors from families that suffered at thernhands of such criminals?rnThe antipornography campaign has much in common withrnthe domestic abuse legislation described earlier, naturallyrnenough because both stem from the same feminist legal tradition.rnIn both cases, activists are using the law to strike at arnproblem which they believe to be extremely serious, but whichrnthey find difficult to define with the precision property requiredrnin legislation. In both cases, the enemy is perceived as a trendrnor an “ism,” an idea such as patriarchy or sexism. However, lawrnis employed against persons, not ideas. It is not possible tornstrike at “male power” or “patriarchy” without hitting particularrnindividuals within that group, which is seen as acceptablernbecause the underiying theory is profoundly collectivist and becausernits exponents see little meaning in concepts of rights orrnobligations other than those of the group.rnVictims of these new laws find themselves facing the ultimaternlegal nightmare of having done things that are defined asrncriminal or illegal according to the subjective and faddish interpretationsrnof police or courts. In addition, the propagandarn(“educational”) value of such laws means that they must carryrnheavy penalties, in order to express society’s outrage at unacceptablernsexist behavior. Ill-defined laws, intrusive police,rnlack of suspects’ rights, and savage punishments: it is a familiarrnmixture, but not one that we would have expected in arnWestern democracy. The feminist legal revolution is not evenrnloosely compatible with the principles of the U.S. Constitution,rnor any related democratic form. It is open to serious questionrnwhether an exponent of this revolution can sincerely affirmrnallegiance to the Constitution or legitimately hold judicial orrnadministrative office within the government based on thatrndocument. crnOCTOBER 1993/21rnrnrn