Sexual Harassment and Hunter Harassment
What does harassment mean? During the Anita Hill — Clarence Thomas Senate hearings and the accompanying report and surveys, we learned at least one thing about sexual harassment: most women said they knew what it was, but most men claimed they had no idea what women meant by it (Roman 1992b).
No such apparent confusion has surfaced in the case of hunter harassment, or at least the courts and the legislature failed to notice it. Let us examine the wording of one state ’ s laws against sexual and hunter harassment. Michigan will serve the purpose, as its laws appear to be representative. As reported by Roman, most state laws consider sexual harassment as illegal sex discrimination. Sexual harassment of a woman is not something that happens to her because of what kind of woman she is, but simply because she is a woman. Nor is it a biological expression of all men, but even if it were, it would still be wrong. Arguments such as these are detailed by MacKinnon (1987) and show the steps the courts followed to arrive at the conclusion that sexual harassment is sex discrimination. Sexual harassment as sex discrimination is prohibited by Title VII of the Civil Rights Act (Furfaro and Josephson 1992), and the Equal Employment Opportunity Commission (EEOC) has codified the sexual harassment guidelines. EEOC ’ s guidelines form the standard used by state laws such as Michigan ’ s.
The Michigan law 27 specifies that “ Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature ” and then proceeds to state the conditions that such conduct must satisfy. Such conduct generally takes one of two forms: the quid pro quo form, in which submission to or rejection of the conduct will influence the employment or education, housing, and other public services status or decision-making processes affecting the individual; or the hostile environment form, in which the climate created by the conduct interferes with the victim ’ s functioning or psychological well-being (Furfaro and Josephson 1992). Under the hostile environment form, much conduct remains subject to interpretation and has invited the ire of free-speech defenders, especially since recent court decisions leave the determination of what constitutes a hostile environment to a “ reasonable woman ” standard. According to Plevan and Popper (1992, 25), “ the court reasoned that the different perspectives of men and women regarding sexual behavior required the application of gender-based norms ”
Although the overwhelming majority of the victims of sexual harassment have been women and the perpetrators men, a gender-based norm sanctified by law is not only unsettling to most men, who now begin to experience how it feels to be “ the other, ” but it may on occasion boomerang on women and other minority-opinion groups in different contexts because of selective (discriminatory) enforcement. This has happened already in Canada. In the 1992 landmark Butler decision, Canada ’ s Supreme Court took a pro-women stance on pornography by holding that restrictions on pornography that subordinates or degrades women do indeed infringe on freedom of expression, but that restrictions on such speech are justified because it causes harm to women. 28 However, the first publication to be targeted for prosecution under the new ruling was a lesbian magazine produced by women for women and which features pictures of bound, naked women (Varchaver 1992). Since lesbian pornography and victimization of women by other women is at most a minor social problem, we have here another example of how the law is applied selectively and more harshly to women 29 — though perhaps a more plausible view is that homosexual material had been targeted frequently under obscenity guidelines even before the Butler decision (Landsberg 1993).
The Michigan law on hunter harassment states:
A person shall not obstruct or interfere in the lawful taking of animals by another person with the intent to prevent that lawful taking.
A person violates this section when he or she intentionally or knowingly does any of the following:
Drives or disturbs animals for the purpose of disrupting a lawful taking.
Blocks, impedes or harasses another person who is engaged in the process of lawfully taking an animal.
Uses natural or artificial visual, aural, olfactory, gustatory, or physical stimulus [ sic ] to affect animal behavior in order to hinder or prevent the lawful taking of an animal. 30
The law continues with the description of additional prohibited conduct. In comparing the sexual with the hunter harassment laws, there are some striking differences. Sexual harassment is defined, however inadequately according to some, as “ unwelcome sexual advances. ” In the hunter harassment law, the word “ harasses ” appears in item (b) but is not specifically defined, unless it is meant as a synonym of “ blocks ” or “ impedes. ” Another difference is that the harassed hunter must be engaging in a specific act, which is described, euphemistically only, as “ the lawful taking of an animal. ” Does this sound like the killing of an animal? It is actually more reminiscent of the “ lawful taking of his wife by a man, ” which is no longer lawful in Michigan since marital rape has been banned. 31
In a sexual harassment case there are two parties involved, the harasser and the harassed, who is also the victim. In a hunter harassment case we have three parties, the hunter, the activist, and the animal. But who is the harasser, the harassed, or the victim? That depends on your moral or religious personal beliefs. In the eyes of the law or the hunters, there are only two parties, the animal being again the absent referent. In the eyes of the animal rights activists, and probably in the eyes of many who simply oppose sport hunting, the animal is the harassed victim and the hunter is the harasser. The following statement in the sports-section report of a fall 1992 hunt protest in Michigan definitely conveys a certain point of view on the issue: “ [the head of the Department of Natural Resources enforcement unit] urged hunters who are victimized by protesters to keep cool and not react violently, because this kind of demonstration is designed to make hunters appear to be the aggressors ” (Husar 1992). This must be one of the rare instances in which sportswriters assign negative connotation to aggressive behavior and pin it on those whom they normally dismiss as out-of-touch-with-nature Bambi lovers. Do the Michigan law and others like it, such as the 1990 Connecticut law that contains similar language, discriminate against the protesters ’ rights to free speech? As written, the law may be assumed to apply to anybody, including a nature devotee who decides to commune with the wood spirits by means of a ritualistic and leaf-rustling dance or by a mystical and loud incantation. Would these nature lovers be prosecuted to make the law pass the neutrality test, and thus declare public lands out of bounds to anyone who is not a hunter? Or will they not be prosecuted on the grounds that their intent was not to disrupt the hunt, but to commune with nature? If so, could the hunt protesters also argue that it is not their intent to impede the lawful taking of an animal, but simply to communicate an urgent message to a sister soul or even to protect the integrity of the maternal bond between the doe and her fawn?
One thing is certain: civil libertarians are slowly coming to the defense of the hunt protesters, and hunter harassment does not yet appear in the footnotes of books and articles that discuss the free-speech issues related to pornography and sexual harassment. Newspaper articles that touch on the issue in their sports or outdoors sections invariably make valiant efforts to demolish gender-related stereotypes by quoting women who hunt, although the number of women hunters is estimated to be “ as high as 11% and growing ” (Farnham 1992). It may be that outdoors writers subconsciously recognize the connection of hunting and hunter harassment with other feminist grievances and wish to defuse it. Traditional feminists have avoided any comparison with animal-related issues as inherently demeaning to women, but the recent ACLU involvement is bound to make the hunter harassment laws and free speech, if nothing else, at least a respectable subject of debate.
What can we conclude from the comparison of sexual and hunter harassment laws? The striking difference in acceptability is illum
inated if we realize that the true harassers in both cases are predominantly members of the male sex. The hunt protesters are not there to harass anyone, but to protect or warn animals that do not belong to hunters. The hunters are there to engage in the ultimate harassment: killing. By subtracting the animals from the discussion of the hunt, the law succeeds in converting the harasser into harassed. As in the pornography case, what superficially appears as an inconsistency is at a deeper level consistent. The true harasser is in a position of dominance and must be protected, either by converting his conduct to speech, as in pornography and sexual harassment, or by transforming his speech into conduct to be protected on the grounds of privacy, as in hunting. The speech of victims and surrogate victims is either nonexistent, as in pornography and sexual harassment, or is converted into conduct so that it can be suppressed, as in hunting harassment.
Rape and Hunting
When ethical arguments against entrenched behavior fail, scientists and hunters, who are predominantly male, use “ nature ” and the example of other animals to exonerate the less attractive propensities of the human male, or to justify their own behavior. And whereas their usual argument in favor of experimenting on animals or killing them and eating them is that humans are superior because of their unmatched rationality and intelligence, when it comes to rape and hunting, other animals and nature itself often serve as their models and excuses. In the case of rape, Anne Fausto-Sterling (1985) exposes the attempts by prominent sociobiologists to mold their observations of reproductive behavior in mallard ducks and insects and fish to fit the definition of rape. By casting rape as an adaptive strategy dictated by evolution, these scientists redefine a human crime as a genetically programmed behavior that enhances the biological fitness of the male. The conclusion is that rape is inevitable and we should not waste our efforts to prevent it unless we can change the nature of men.
Similarly, hunters proclaim their right to kill on one level by claiming that “ animals are here for our consumption ” and on the other by asserting that hunting simply confirms “ their animal status ” in the chain of being: “ By killing, he [the hunter] willingly couples himself into the chain of life and death binding all other predators and prey. And thus bound, he experiences nature in a way far more intimate than whale watching: He watches it, and then eats it ” (Farnham 1992). Marti Kheel has analyzed the writings of deep ecologists Randall Eaton, Jos é Ortega y Gasset, and Aldo Leopold on the subject of hunting and found that for them hunting is not “ a necessary means of subsistence but rather a desire that fulfills a deep psychological need ” to identify with the animal (Kheel 1990). This is an impossible task, since the animal is killed, but for ordinary hunters eating the dead flesh is obviously sufficient for identification purposes. It is not clear how women hunters will interpret their kill-mediated connection with nature, but Farnham ’ s article provides some hints. After informing us that Jane Fonda also hunts, he describes a long list of the hottest paraphernalia and other products or services one can buy: muzzleloaders, scents and lures, calls (instruments), prey acquisition systems such as infrared binoculars and Bionic Ears, how-to videos, special classes, corporate leases, etc. (Farnham 1992). Such abundance of consumer goods may appeal to the adherents of the “ shop ‘ til you drop ” credo of both sexes and recruit some women (and men) from their current “ hunting for bargains ” to a “ shopping for the hunt. ”
* * *
Conclusion
It is not great news that protection of speech is applied selectively. On one hand, it is difficult to impose regulations on speech when pornographers make money and women are the victims, but on the other, free speech issues are almost invisible when hunters and the hunting industry stand to benefit and only the speech of animal rights activists is silenced. Similarly, sexual harassment laws are criticized often and at length as unclear or infringing on free speech, but hunter harassment laws have largely escaped such scrutiny. When viewed in this light, neither the application of the laws nor the stance of women (who comprise the majority of animal advocates) relative to issues of free speech are inconsistent. The legal system still protects the free speech of the dominant class at the expense of the free speech of the subordinate or minority groups. To this end, it may resort to various contortions, such as portraying the hunters as the victims of harassment and converting the expressions of opinion of the hunt protesters into conduct. Similarly, women are consistent when they support antipornography laws and oppose hunter harassment laws. In both cases they argue for their right not to be silenced in speaking out against exploiters who objectify women or animals in very similar manner. 32
Concerning women, there seems to be a change in the air that may or may not be short-lived. The historic Butler ruling in Canada may pave the way for new antipornography legislation; there is a greater awareness of sexual harassment issues after some recent high-profile cases and an apparent change of heart at the ACLU; 33 and new anti-stalking laws will finally offer some urgently needed protection to women often pursued to death by ex-husbands and boyfriends (Holstrom 1992). However, it is already expected that the constitutionality of these laws will be challenged. Unfortunately, animal advocates have recently lost on appeal some legal battles they had won in lower courts. 34
At the same time we see the phenomenon of successful women adopting the standards of men with a vengeance. Will women ’ s march to power ascendancy, won against all odds, mean that they too will choose to flaunt their preferences for red meat, animal skin, sport hunting, and even bullfighting? 35 As women are swelling the ranks of biomedical science, many have adopted the practice of animal experimentation. 36 Will animal exploitation become the ultimate symbol of equality with the white male? Or will the rising number of women attorneys change the way the law treats both women and animals?
Notes
I would like to acknowledge Carol Adams for her encouragement and insistence that I write this article. I would also like to thank the anonymous reviewers for helpful suggestions and Josephine Donovan, Susanne Kappeler, and Katherine Malin for their close readings of my article.
1. The language of rights has been criticized by feminists as being patriarchal, but it is embedded in the legal system and stamped on our consciousness. As different ways of thinking also become officially accepted, the word "rights" may change its connotation. In this article it is used as a convenient shorthand to convey a broader set of ideas — including care, consideration, liberation, and legal standing.
2. Such as "bitch," "swine," "rat," "cow," "mole," "shark," and, of course, "beast," "brute," "animal," and "meat." See the Dunayer article in this volume.
3. I use the word "animals" as a shorthand for "nonhuman animals," as in everyday speech.
4. Lack of standing means roughly that the law does not recognize animals as entities that have interests in themselves. Animals have no personhood, although corporations currently do. Recent cases brought by animal rights activists have attempted to establish the standing of animal protection/rights organizations to sue on behalf of animals, but, after some initial success at the lower court level, these efforts have failed. See notes 5 and 32.
5. The case against USDA, Animal Legal Defense Fund v. Madigan, 781 F. Supp. 797 (D.D.C. 1992), was brought by the Animal Legal Defense Fund (ALDF), the Humane Society of United States (HSUS), and two other individuals in federal court. USDA lost at the lower court level, but the decision was overturned on appeal, in Animal Defense Fund v. Mike Espy, 23 F.3d 496 (D.C. Cir. 1994). The court did not recognize that the organizations or the individuals, one of whom was a researcher, had standing to sue because they could not show they were directly harmed. Note that the species excluded from the rudimentary protection of the Animal Welfare Act comprise the vast majority (85 percent) of laboratory animals.
6. See, for example, the Utah Code Ann. Sec. 76-10-2002 (Michie 1990).
7. Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). See also "Hialeah ’ s
Affront to Religious Freedom," The Chicago Tribune, editorial, 8 November 1992.
8. According to Heidi Prescott of the Fund for Animals, by 1993, 48 states had already passed hunter harassment laws. Connecticut ’ s law, which had been overturned on constitutional grounds, has been redrafted and upheld in State v. Ball, 226 Conn. 265 (1993). The constitutionality of the Montana law was upheld by that state ’ s supreme court, State v. Lilburn, 875 P.2d 1036 (Mont. 1994), but the Idaho Supreme Court struck down Idaho ’ s hunter harassment law, State v. Casey, 876 P.2d 138 (Idaho 1994). See Motavalli (1994). The Recreational Hunting Safety and Preservation Act of 1994, Pub. L. No. 103-322, which was inserted in the "crime bill," provides a penalty up to $5,000 for anyone who "intentionally [engages] in any physical conduct that significantly hinders a lawful hunt." When physical contact involves violence or threat of violence, the penalty is $10,000.
9. "Church and State: Necessary Sacrifice?" The Economist, 14 November 1992, World Politics and Current Affairs section.
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