ADDRESSING THE VILIFICATION OF WOMEN: A FUNCTIONAL THEORY OF HARM AND IMPLICATIONS FOR LAW.

• Date: 01 April 2020
• Author: de Silva, Anjalee
• Published date: 01 April 2020
• Author: de Silva, Anjalee

CONTENTS I Introduction II Speech as Conduct III Speech as Harmful Conduct IV A Functional Theory of Sex-Based Vilification with Reference to Its Harms A Subordination and Silencing Harms of Vilifying Speech 1 Subordination Harms of Vilifying Speech (a) Subordination Harms of Some Pornography (b) Subordination Harms of Racist Speech 2 Silencing Harms of Vilifying Speech (a) Silencing Harms of Some Pornography (b) Silencing Harms of Racist Speech B Sex-Based Vilification as Systemic Subordination and Silencing of Women V Implications for Law as Counter-Speech VI Some Further Implications for Law A Constitutive versus Causal Harms B Legal Definitions of Harm VII Conclusion I INTRODUCTION

Social and news media, as well as an emerging body of scholarly work, contain numerous accounts of speech directed at and about women and girls that prima facie expresses contempt for women and girls on the basis of their sex. I refer for now to such speech as 'sex-based vilification'. (1) Sex-based vilification occurs across jurisdictions. It typically accompanies violence committed against women, (2) is often directed at and about women in positions of political leadership, (3) and occurs prolifically in pornography, (4) advertising, (5) popular culture (including film, music, literature, and other visual and performance arts) (6) and mainstream news and tabloid media reporting. (7) It is directed at and about powerful women, 'ordinary' women, and women generally. (8) It occurs in person, online (including characteristically as part of the cyber harassment of women), (9) in physical spaces such as workplaces and educational institutions, and via speakers who may themselves colloquially be described as powerful or 'ordinary'. (10) Despite its recent media attention, it is not a new problem.

Notwithstanding the prevalence of sex-based vilification, there is a 'sex-based gap' in anti-vilification laws. (11) Apart from some notable exceptions at the domestic level in some jurisdictions, (12) anti-vilification laws on the basis of sex ('sex-based vilification laws') do not exist. (13) Nor has the issue of sex-based vilification received much scholarly or policy attention. (14) In contrast, vilification on the basis of other ascriptive characteristics, including, for example, race, religion, sexuality, gender identity, intersex status, disability, or HIV/AIDS status, is unlawful under international law and in many domestic jurisdictions. (15) The socio-legal implications of the harms and regulation of those categories of vilifying speech, including, in particular, racial and religious vilification, have also been more extensively considered at the scholarly and policy levels in many jurisdictions. (16)

The sex-based gap in anti-vilification laws, when viewed alongside the pervasiveness of sex-based vilification, raises various questions from a legal perspective. For example, is the 'problem' of sex-based vilification, including the frequency and manner of its occurrence, a problem that is relevant to law? Are there coherent justifications for the sex-based gap in existing anti-vilification laws, including free speech considerations, if any, that apply differently or particularly to sex-based speech? What would be the utility, if any, of extending existing anti-vilification laws to include sex as a category of vilification? Central to those questions is the issue of harm. Any meaningful consideration of the cogency of regulating sex-based vilification, whether by extending existing anti-vilification laws or otherwise, requires understanding the harms of such speech. Specifically, it requires understanding whether sex-based vilification does harmful things, how it does those things, and what those things are.

Nevertheless, the functions of sex-based vilification, as well as those of potential sex-based vilification laws, remain unaddressed in any detail in the limited literature in this area. For example, in a recent article published in the University of New South Wales Law Journal, Tanya D'Souza, Laura Griffin, Nicole Shackleton, and Danielle Walt argue that 'by failing to address gendered hate speech, Australian law permits the marginalisation of women and girls, and actively exacerbates their vulnerability to exclusion and gender-based harm'. (17) 'Gendered hate speech' is not defined in their article, linguistically or otherwise, but I will assume that it corresponds roughly to my provisional definition of sex-based vilification. (18) 'Gendered hate speech, they argue, 'is best understood as a mechanism for reinforcing power imbalances and social hierarchies, and specifically as an instrument of misogynist hostility serving to uphold patriarchal structures'. (19) Those 'broader structures both give rise to [gendered hate speech] and are reinforced by it'. (20) Accordingly, 'state inaction, in the form of failing to legislate, works to produce women's vulnerability to [gendered hate speech] in public spaces', and 'legislation against [gendered hate speech] could be seen as an important tool for interrupting the social and discursive production of women's vulnerability'. (21) Their article is a welcome addition to the literature as it partly addresses the relative invisibility in socio-legal scholarship of sex as a category of vilification. It is also correct and important to situate sex-based vilification, as they seek to do, within existing structures of male dominance and female subordination in patriarchal societies as speech that is both symptomatic of and that (re)enacts those structures. Notwithstanding those contributions, what remains absent from their article and the literature is an account of how sex-based vilification harms in relevant ways and how legislation regulating such speech may mitigate those harms.

In this article, I seek to address some of those gaps in the literature on sex-based vilification and its potential legal regulation by conceptualising sex-based vilification with reference to its harms. As mentioned above, a proper and detailed understanding of those harms is overlooked in the literature and is fundamental to legal considerations of such speech. I rely on extant critical and speech act theory scholarship to arrive at a functional theory of sex-based vilification, as relevant to law, as discriminatory treatment of women that systemically subordinates and silences women on the basis of their sex. (22) I conceptualise such speech as speech that does things, that does harmful things, and that both causes and constitutes systemic subordination and silencing harms to women. On the basis of my functional theory, I argue that the enactment of sex-based vilification laws may be seen to constitute a 'counter-speech act' by the state that may mitigate the harms to women of sex-based vilification.

I begin in Part II by briefly introducing speech/conduct dualism and resulting arguments that dominate liberal free speech theory and discussions around the regulation of prima facie harmful speech in liberal democracies. I then examine the tenability of the speech/conduct distinction with reference to the work of JL Austin, who was the earliest expositor of what is now well known as speech act theory. Speech act theory remains influential and demonstrates how 'to say something is to do something'. (23) In Part III, I consider whether speech can do harmful things. My discussion in that part centres on the work of Rae Langton, who effectively uses Austinian speech act theory to demonstrate that some speech, when spoken with authority, can harm. (24) I also refer to work by Mary Kate McGowan that demonstrates that speech may harm covertly', even if it is only trivially authoritative. In Part IV, I argue for a functional theory of sex-based vilification with reference to its harms. I consider key extant critical race and feminist accounts of discriminatory, harmful speech--namely, racist speech and some pornography--to construct a more complete account of the nature of harms constituted and caused by such speech. Those accounts weigh heavily against orthodox liberal understandings of speech harms as empirically indefensible, causally attributable to hearers rather than speakers, or otherwise immaterial to law. On the basis of those accounts, I argue that vilifying speech is discriminatory treatment that constitutes and causes subordinating and silencing harms to individuals possessing relevant ascriptive characteristics ('target group members'). Accordingly, I argue that sex-based vilification is discriminatory treatment of women that constitutes and causes subordination and silencing harms to women. It constitutes women as subordinate and silent and, by doing so, causes them to be subordinated and silenced. As sex-based vilification derives its authority at least partly from women's structural or systemic oppression to men in patriarchal societies, and as it harms women on the basis of their sex, its constitutive and causal harms of subordination and silencing are systemic harms. That is how sex-based vilification functions to harm women, and it is those functions of sex-based vilification that lend context to the legal questions: should sex-based vilification be regulated, how should it be regulated, and what, plausibly, can regulation achieve? In Parts V and VI, I partly address those questions by considering some implications of my functional theory for law. In Part V, I argue that states would, in enacting sex-based vilification laws, engage in counter-speech acts that speak back' against sex-based vilification and may mitigate its harms. That is, the state has authority to enact permissibility facts in and of law and in and of patriarchal oppression that compete with women's systemic subordination and silencing through sex-based vilification. I also argue that the states silence as to sex-based vilification is an act of accommodation that derives authority on such speech and may constitute the...