Bancroft Croose
59, West 44th Sreet,
New York. 10099
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Reflecting on women's exclusion from and subordination by law, Catharine A. MacKinnon traces the place of the legal guarantee of sex equality "from anathema to afterthought." In early attempts to change this, and continuing into the present, existing doctrine has been largely accepted as given. That is, demands have principally been to include women on the same terms as men. The Aristotelian notion of equality imposed by the courts, first on race then on sex, requires subordinate groups to be "similarly situated" to dominant groups before they can receive equal treatment. The author shows that this model cannot remedy inequality to the extent social inferiority is effectively imposed. One result of the existing equality approach has been to conceal the state's participation in the institutionalization of sex inequality through rendering whole areas of law at crucial moments in women's inequality not equality issues at all. Sexual assault and reproductive control are central examples. The author accordingly argues that sexual assault and reproductive control are sex equality issues. Reconstructing equality, she shows how the legal system's treatment of rape as de jure illegal while overwhelmingly permitted de facto is unconstitutional under the Fourteenth Amendment. In the primary argument of the Article, MacKinnon demonstrates that criminal abortion laws violate the equal protection clause by punishing women for a gendered capacity that is confined to one sex and historically central in the subjection of women. The larger implications of her observations suggest the need for more realistic, less gender-biased, and more change-oriented conceptions of discrimination, as well as a more commodious understanding of the place of law in women's everyday lives.
Index of articles, click here.
Bancroft Croose
59, West 44th Sreet,
New York. 10099