This article originally appeared here on March 24, 2019
From experience, women often assume that any opposition to power will produce retaliation followed by retrenchment: not only that any progress made will be clawed back, but that those pushing for it will be punished. While often realistic, fear of blowback can impede insistence on change and the collective mobilization it requires. Anxiety about backlash, however well founded, keeps one’s antennae endlessly attuned to giving power what pleases (and please pacifies) it. This contributes to keeping dominance in place.
When I was working in the early 1970s to shape the concept and create the legal claim for sexual harassment when it did not exist, I called the organization then called 9to5 and explained to the woman who answered the phone what I was trying to do, asking if she would be willing to talk with her members about my project on unwanted sexual attention and pressure at work. She finally called back, saying they could not help.
Me: Why is that? Her: Our members think this would take away their only source of power. Me: I thought this was about a source of their powerlessness. Her: I understand what you’re saying, but we can’t help right now. Maybe later.
The organization grasped the issue soon after, but mistaking powerlessness for power hardly began recently and has hardly gone away. Among its underlying dynamics, together with maintaining an illusion of control when one is being controlled to hold onto self-respect, is a fear of the consequences of challenging a power seen as unchangeable, as inevitable, as well as omnipotent. Retaliation can be especially acute when one behaves as if one has rights. But #MeToo is giving the lie to the totality of male sexual entitlement, and is finally exposing the price of not challenging its power.
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The world’s first mass movement against sexual abuse, #MeToo took off from the law of sexual harassment, quickly overtook it, and is shifting cultures everywhere, electrifyingly demonstrating butterfly politics in action. The early openings of the butterflies’ wings were the legal, political, and conceptual innovations of the 1970s, but it is the collective social intervention of the #MeToo movement that is setting off the cataclysmic transformations of which a political butterfly effect is capable.
The legal breakthrough that defined sexual harassment as sex discrimination, a human-rights violation, was a crucial precondition for #MeToo, despite the inadequacies of law that the movement has highlighted. Sexual harassment as experience and violation was exposed and defined as a vector and dynamic of sex inequality based on gender with major white racist and class-based dimensions. Legally framed as a deprivation of equality rights, sexual harassment stopped being something to just live through. This change broke through the age-old rule of impunity that the more power a man has, the more sex he can exact from those with less. If all the sexual abuse now reported in the #MeToo movement had remained legal for the past 40-some years—as most would have, without sexual-harassment law—this explosive movement against it would have been unthinkable. Without law delegitimizing sexual harassment, calling it what it is, powerful men would not be losing their jobs, political and academic positions, deals, and reputations today.
But #MeToo has been driven not by litigation but by mainstream and social media, bringing down men (and some women) as women (and some men) have risen up. The movement is surpassing the law in changing norms and providing relief that the law did not. Sexual-harassment law prepared the ground, but #MeToo, Time’s Up, and similar mobilizations around the world—including #NiUnaMenos in Argentina, #BalanceTonPorc in France, #TheFirstTimeIGotHarassed in Egypt, #WithYou in Japan, and #PremeiroAssedio in Brazil among them—are shifting gender hierarchy’s tectonic plates.
Until #MeToo, perpetrators could reasonably count on their denials being credited and their accusers being devalued to shield their actions. Many survivors realistically judged reporting to be pointless or worse, predictably producing retaliation. Complaints were routinely passed off with some version of “She isn’t credible” or “She wanted it” or “It was trivial.” A social burden of proof effectively presumed that if anything sexual happened, the woman involved desired it and probably telegraphed wanting it. She was legally and socially required to prove the contrary. In campus settings, in my observation, it typically took three to four women testifying that they had been violated by the same man in the same way to even begin to make a dent in his denial. That made a woman, for credibility purposes, one quarter of a person.
Even when she was believed, nothing he did to her mattered so much as what would be done to him if his actions were taken seriously. His value, personal and political, outweighed hers. His career, his reputation, his mental and emotional serenity, his family—all his assets counted. Hers did not. A weird temporality set in. What he did was past, so best forgotten, and it should not affect his future. She was entitled to recognition neither of her past injury nor of her past, present, or future trauma. In some ways, it is even worse to be believed and not have what he did matter. It means you don’t matter.
This precise choreography was retraced in the final Senate hearing for Brett Kavanaugh’s Supreme Court nomination. Christine Blasey Ford provided remembered facts of a sexual attack by him: He did this. When questioned on those facts, Kavanaugh repeatedly provided … his résumé: I matter. Many people seem to have believed her. Yet it/she became comparatively weightless, negligible; his future counted, heavily. His enraged display of toxic masculinity, coded as “strong” under male dominance—otherwise an unjudicial, even hysterical, attempt at distraction—fooled just enough people. Senators who believed Christine Blasey Ford apparently did not recoil at placing someone on the Supreme Court who, therefore, must have been lying to them under oath. His value outweighed her violation. Her cogent, wrenching account, the slut and nut ripostes failing in traction, was shoehorned into the “So what?” category. These exact dynamics of inequality drive the system of sexual politics in which the more power a man has, the more sexual access he can get away with compelling. The hairline vote to confirm Kavanaugh sandbagged that system against the #MeToo tidal wave.
Over the prior year, during which long-buried reports of sexual abuse had exploded, the survivors speaking out cut across sex, gender, age, race, class, and politics, perfectly displaying the kaleidoscope that collectivities of butterflies are called. After four decades—or thousands of years, depending on when you start counting—the pervasive silence that walled off reports of sexual abuse crumbled. What was previously ignored or attributed to lying, deranged, or venial discontents and whiners began to be treated as disgraceful and outrageous misconduct that no self-respecting entity, including companies or schools, could accept being associated with. This unprecedented wave of speaking out has begun to erode the two biggest barriers to ending all forms of sexual abuse in law and in life: the disbelief and the trivializing dehumanization of victims.
Used to be, women who accused men of sexual abuse were the ones thrown overboard. Women’s voices recounting sexual abuse being heard, believed, and acted on—and some men being thrown overboard, despite Kavanaugh’s confirmation—is real change. The alchemy of #MeToo is beginning to transform what has been a privilege of power into a disgrace so despicable that even many white upper-class men feel they cannot afford it around them. Maybe they have even begun not to want it there?
The #MeToo moment built on decades of collective work against sexual abuse, including the professor Anita Hill’s foundational testimony in 1991 that Clarence Thomas, nominated and also confirmed to the Supreme Court, had sexually harassed her years before. Judge (now Justice) Thomas’s testimony was far more effective than Judge (now Justice) Kavanaugh’s, and far more dignified—as a Black man, it had to be—despite Hill’s unimpeachable credibility and unshakable grace. I believed her, but his anger at being held to a standard to which white men had not previously been held came from a real place. It was not a tantrum of entitlement.
In 2006, the civil-rights activist Tarana Burke laid a specific conceptual cornerstone for the current movement, applying the phrase Me too to call out the widespread sexual and other domestic violence against women and girls and lift them up. In the decade following, in an independent vector, what was widely termed “campus sexual assault” combined legal initiatives with social-media interventions, as survivors organized among themselves and inspired Barack Obama’s administration to investigate hundreds of schools for inadequate responses to sexual abuse on campus. This, too, was prepared by the legal recognition in the late 1970s that students have an educational right under sex-equality law to an educational environment that is not sexually hostile and to a school’s adequate, effective, and fair response to reports of abuse.
Then, on October 15, 2017, the actor Alyssa Milano, as part of her report of sexual abuse by the Hollywood mogul Harvey Weinstein, created the Twitter hashtag, inviting survivors of sexual violation to join her and others on social media in reporting their sexual violation. The number of those who provided their own accounts soon reached 1.7 million before anyone stopped counting. Ashley Judd, the actor and activist, was perhaps the #MeToo movement’s specific butterfly. Her willingness to be named alleging sexual harassment by Harvey Weinstein, as reported by The New York Times, followed swiftly by named allegations from others against him there and in The New Yorker, produced the butterfly effect that is now the mass kaleidoscopic movement known as #MeToo, transnational in scope and showing no signs of slowing.
High-quality journalism, featuring in-depth, factually detailed reporting that was the product of years of investigative diligence, touched off this movement, followed by survivors in the millions taking to social media. Sexual abuse was finally being reported in the established media as pervasive and endemic rather than sensational and exceptional. Women have been talking with each other about this outrage for millennia. Social media could have become just a digital echo chamber where a million whispers of sexual mistreatment went to die. No small part of the cultural and legal changes that are occurring is due to mainstream media. Events are being reported as if they might have occurred. Sexual abuse is being unearthed in every corner of society—sports as well as entertainment, food as well as finance, tech and transportation as well as employment and education, children as well as adults. And, of course, in politics. As staggering as the revelations have been to many who failed to face the long-known real numbers, the structural place of this dynamic has only begun to be exposed. Sexual harassment, as written in 1979, now stands revealed as “less ‘epidemic’ than endemic.”
If one precondition for #MeToo was sexual-harassment law, the other was the 2016 presidential election. Previously, complaints of sexual harassment had been linked for many to the left-right politics of Bill Clinton’s administration. In what Hillary Clinton called a “vast right-wing conspiracy,” a popular president many Americans respected, whose politics a voting majority of the country had hoped to see enacted as policy, was derailed by sexual-harassment charges. The sexual politics of the complaint against President Clinton by Paula Jones, an Arkansas state employee when he was governor there, were also crosscut by the simultaneous emergence of his ongoing affair with an intern in the White House, who said she desired the sexual relationship the two were having. The immense inequality of power between them was thus obscured, particularly because sexual relations characterized by dramatic inequalities of social power are so common, perhaps normative. In any event, sexual harassment as an issue became identified for many with the right’s partisan morality crusade rather than with the coercion of inequality.
The election of Donald Trump redefined the politics of publicly claiming sexual victimization. Now it’s an unpopular president whose legitimacy is in question, one who has been caught on tape explicitly asserting that he could grab any woman by the genitals because he is a star. He did not repent. Many women were outraged by this and by the fact that charges of sexual abuse leveled against him by 22 women did not matter enough to even jar, far less derail, his candidacy or his election.
The allegations against Harvey Weinstein threw a match into this tinderbox. Resisting sexual harassment by reporting its occurrence in one’s own life became a means of resisting a president seen by many as a narcissistic, authoritarian misogynist as well as an unprincipled, corrupt serial liar. Even as the movement revealed that perpetrators of sexual abuse were not just those men over there but our men right here, this reversal of the conventional politics of the issue released a tsunami of enraged women. What contributed to creating Trump as president—indifference to reports of sexual abuse—fueled #MeToo, in no small part because of its role in creating Trump as president. If Hillary Clinton had been elected, #MeToo would not have occurred. While #MeToo unites survivors of all politics in a politics of its own, it is also a responsive backlash.
Just because something is legally prohibited doesn’t mean it stops. Maybe exceptional acts do, but not pervasive structural practices. Equal pay has been the law for decades and still does not exist. Racial discrimination is nominally illegal in many ways but is still widely practiced against people of color, including in lethal forms. If the same cultural inequalities are permitted to operate in law as operate in the behavior the law prohibits—as exemplified by the rape myth, pervasive in courtrooms, that women who have had sex are inherently not credible, having somehow lost their credibility along with their virginity—equalizing attempts such as sexual-harassment law encounter systemic drag.
The #MeToo movement is finally breaking this paralyzing logjam. Structural misogyny, with sexualized racism and class inequalities, is being challenged by women’s voices. No longer liars, no longer worthless, today’s survivors are initiating consequences few could have gotten through any lawsuit—in part because the laws do not permit relief against individual perpetrators, more because the survivors are being believed and valued as the law seldom has.
As #MeToo moves the culture beneath the law of sexual abuse, early indications are that some conventional systemic legal processes may be shifting too. In a kind of controlled experiment, the comedian Bill Cosby, accused of drugging and assaulting scores of women over decades, whose trial produced a hung jury in a case prior to #MeToo, was then convicted several months after #MeToo broke. In the first trial, one woman was allowed to testify to similar experiences to support the single complaining witness; five were permitted in the second. These are gender crimes, a point multiple victims make, despite this fact not being recognized in domestic criminal law. Aaron Persky was removed from the superior-court bench in California in a recall by voters after sentencing a white Stanford swimmer to six months in jail for committing three sexual-assault felonies against an unconscious woman. His victim’s sentencing statement inspired women worldwide and helped set off #MeToo. California made several legal changes in response to the case. Larry Nassar, a doctor for Olympic gymnasts, was convicted of sexually assaulting scores of his young-women patients over decades under the guise of treatment, and was sentenced to more than a lifetime in prison. Anyone who thinks that all the persuasive young women—breathtaking in number and compelling in voice—would have produced the same result without the #MeToo changes in climate is forgetting the multiple reports against Nassar over multiple years by some of these same young women that were utterly ignored. The ongoing surfacing of allegations against Catholic priests and bishops by adult survivors of childhood sexual abuse, many of them men, which began before #MeToo, has arguably taken inspiration and heart and derived potency and momentum from a rising #MeToo.
Some courts are beginning to take explicit account of the cultural shift in what is “reasonable” to expect of a survivor who alleges sexual harassment at work. In one striking case, a court of appeals reversed a lower court’s ruling for an employer and required a jury determination of fact as to whether a woman employee took reasonable care to avoid the harassment she alleged, and whether she reasonably did not report it over a period of several years. In an innovative case, the British actor Kadian Noble sued Harvey Weinstein civilly for sex trafficking, for forcing her to commit a sex act with him amid his fraudulent promises to advance her career. In fact, quid pro quo sexual harassment does amount to a form of commercial sex. The judge there held she could proceed to trial. This is a whole new world.
#MeToo is building a rich critique of freedom under conditions of inequality, a neglected topic. Criminal law’s burden of proof is often imported into civil and administrative processes as a standard for the credibility of the victim when sexual abuse is investigated. Whatever a defendant stands to lose in these circumstances, it is not his liberty, making the criminal standard inappropriate. Investigative and adjudicative processes for sexual violation in most settings remain within the chain of command of the institution that is effectively being investigated. Even so-called independent investigations often are not. In any other setting, this would be recognized as corruption. Transparency is not the usual rule; secrecy is, protecting the organizational brand, also known as a cover-up. Liability standards for employers and educational institutions remain unrealistically stacked against sexual-harassment survivors. Legal standards for retaliation—one of the biggest fears behind nonreporting—are not realistic in the sexual-abuse context. Even before a case can get started, the federal law of discrimination has a statute of limitations of mere months, the shortest known in law, before almost any victim of sexual violation is past trauma, far less post-traumatic stress. Nothing to change the statute of limitations exists in Congress.
Sexual-harassment law can grow with #MeToo. But the only legal change in U.S. law that matches the movement’s scale would be the passage of an Equal Rights Amendment. That would, at minimum, expand the congressional power to legislate against sexual abuse. It could renovate interpretations of equality in a more substantive and intersectional direction, reconfiguring the concept by guaranteeing sex equality for all under the Constitution for once.
Radiating out from sexual harassment to sex inequality as a whole, the movement has stimulated a wider public discussion of equal hiring, equal numbers of women on boards, equal pay, and more women in politics, as well as brought further focus to the role of white supremacy in misogyny. Anyone who doubts that sexual abuse is central to the second-class status of women might consider what taking it seriously on a systemic basis has set off. Sexual harassment encompasses, parallels, evokes, or echoes many other abuses of women and children, from simple discrimination to other abuses of authority or trust or power. Sexual harassment is like sexual abuse in childhood, in that the trust of victims is manipulated, dependency exploited, and institutions betray those who report. Sexual harassment often includes rape, and it raises similar issues of sex that is acquiesced to under conditions of unequal power. Sexual harassment makes all forms of women’s work into a form of prostitution: forced trading of sexual access for economic survival. Sexual harassment turns real work into an arm of the sex trade. The imperative to exchange sex for survival, or the dangled possibility of survival whether real or not, governs women’s inequality, hence women’s lives, worldwide. When survivors of prostitution have their #MeToo movement, it will be the one the current movement has prepared.
Sincere revulsion against sexually harassing behavior, as opposed to revulsion at reports of it, could change workplaces and schools, even streets. It could restrain repeat predators as well as the occasional and casual exploiters, as the law so far has not. Shunning perpetrators as sex bigots who take advantage of the vulnerabilities of inequality could transform societies. Many social sectors are beginning to recognize their obligation to foster environments free from sexual objectification, pressure, or aggression. Reporting of sexual abuse is starting to be welcomed rather than punished, on the view that accountability, not impunity, should prevail for individuals and institutions that engage in or enable such abuse. Under these circumstances, excellence and inclusion, rather than hierarchy and fear, can operate as real rather than rhetorical standards.
All this cuts to the core of rape culture, so could change it. Simple linguistic shifts would also help. It is still generally said that women “allege” or “claim” they were sexually assaulted; those accused then “say” or “assert” it did not happen or “deny” what was alleged. Survivors could “report” sexual violation, or “say” they were sexually violated. The accused could then “allege” or “claim” it did not occur, or did not occur as reported. Rehabilitation needs to be discussed with, not without, reckoning.
The #MeToo mobilization, this uprising of the formerly disregarded, has made increasingly untenable the assumption that the one who reports sexual abuse is a lying slut. That is already changing everything. A lot of the sexual harassment that has been a constant condition of women’s lives is probably not being inflicted at this moment.
As butterflies take flight from beneath the shadow of the law, imagine the first rise in women’s status since the vote. Conceive a revolution without violence against domination and aggression. Envision a moment of truth and a movement of transformation for the sexually violated toward a more equal, therefore a more peaceful and just, world. It is happening all around us right now.
We want to hear what you think about this article. Submit a letter to the editor or write to firstname.lastname@example.org.Catharine A. MacKinnon is a legal scholar who pioneered the legal claim for sexual harassment. She is the Elizabeth A. Long Professor of Law at Michigan Law and the James Barr Ames Visiting Professor of Law at Harvard Law School. Some parts of this essay were previously published in The Guardian and The New York Times