Where It Came From
It Started With a Theory About Sex. It Was Always About Power.
In the 1980s, Catharine MacKinnon — a radical feminist legal scholar at Harvard — developed a theory that would become the intellectual foundation of the VCA. The theory was introduced to the public as a response to sexual violence. But MacKinnon’s actual argument was not about sex. It was about structural power.
Her claim: wherever one party holds power over another, the subordinate party’s consent is not meaningful — because it is produced by the conditions of inequality, not by free choice.
She said so explicitly:
“The presence of consent does not make an interaction equal. It makes it tolerated, or the less costly of alternatives out of the control or beyond the construction of the one who consents.”
“When fear and despair produce acquiescence and acquiescence is taken to mean consent, consent is not a meaningful concept.”
And most critically — she made clear the theory was never limited to sex:
“Basically any form of unequal power has the same structure — which emphatically obviously includes race and ethnicity, but also class…”
This is the foundational move. Once you accept that structural power makes consent impossible, the theory applies to any relationship organized by hierarchy: employer and employee, teacher and student, pastor and congregation, therapist and client, political leader and follower.
Sex was the entry point. Power was always the theory.
How It Became Federal Law
1999–2000
The Palermo Protocol
MacKinnon’s allies at the Coalition Against Trafficking in Women attended ten of eleven drafting sessions of the UN Palermo Protocol, securing Article 3(b): where any means of coercion — including ‘abuse of a position of vulnerability’ — is alleged, consent is legally irrelevant.
2000
The TVPA Statutory Gap
Congress enacted the Trafficking Victims Protection Act (18 U.S.C. §1589), extending forced labor liability to include ‘psychological harm’ — with no limiting definition. The Supreme Court had warned in United States v. Kozminski (1988) that this kind of open-ended standard would delegate inherently legislative judgments to prosecutors. Congress expanded the statute anyway.
2008–2021
Institutionalization
The 2008 Wilberforce TVPRA extended ‘serious harm’ to include ‘nonphysical and psychological harm.’ Executive policy, DOJ guidance, and $130 million per year in conditioned federal grants turned the VCA into a compliance requirement: adopt the doctrine or lose federal funding. Nearly 12,000 American judges were trained under federally funded programs that apply these frameworks before a single piece of evidence is heard at trial.