This extract, the second in our Disgust Week series, is taken from Professor Martha Nussbaum’s Book Hiding from Humanity: Disgust, Shame and the Law (Princeton: Princeton University Press, 2004), pp.168-171.
The book critiques the roles of disgust and shame in the law and its interaction with life and 
society. Her overall thesis is that these emotions should be handled with care, and that disgust should never be basis of a criminal conviction or as the basis for law, as doing so is an attempt to express a type of purity that is impossible in real life. In the section below, Nussbaum examines the role played by disgust as a physical and social contaminant and boundary violation, accompanied by a strong a visceral sensation, in ‘”Horrible and inhuman” homicides’. In this section, she uses a particularly graphic example of sexual violence and the strange requests of the perpetrator to ask whether disgust has a role to play in the law, even in extreme cases.
Professor Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago. Many thanks to Professor Nussbaum for granting us permission to use this extract.
We must now consider one more specific case, since it figures prominently in Kahan’s pro-disgust argument.[1] A murderer named Beldotti apparently killed in order to gratify sadistic sexual desires.[2] He strangled his female victim, cut off her nipples, and stuffed her into trash bags. Police recovered from his home numerous postmortem photographs of the deceased, posed with dildoes penetrating her vagina and anus. The jury found that Beldotti’s crime showed “extreme atrocity and cruelty” and sentenced him to life in prison without parole. While in prison, Beldotti requested that the dildoes, photos of the victim, the trash bags in which she had been placed, and other sexual paraphernalia be returned to his representatives outside prison. The state opposed this request, arguing that giving these items back, even if not to Beldotti himself, would “justifiably spark outrage, disgust, and incredulity on the part of the general public.” They urged that the property be put in the trash, and the Massachusetts Court of Appeals agreed, concluding that returning the property would be “offensive to basic concepts of decency treasured in a civilized society.”
According to Kahan, the Beldotti case shows that disgust plays an ineliminable role in criminal law by shoring up community morality: the result in the case, and what is good about it, cannot be explained without giving disgust a central role. Kahan argues that no concern with rehabilitation or specific deterrence could explain the result (given Beldotti’s life sentence), and that a concern with general deterrence would not explain the state’s refusal to surrender these particular items. The only remaining explanation, Kahan concludes, is disgust. If it had granted Beldotti’s request, the state itself would be “tainted” by the contamination his relics would impart. The request to put the items “in the trash can where they belong” is an unmistakable expression of disgust, and the case shows that this emotion is central to protecting society’s moral boundaries.
First of all, I am not persuaded by Kahan’s arguments about general deterrence. Obviously enough, to surrender to a murderer the paraphernalia he used in a murder would be a treatment so indulgent that it could well lessen the deterrent effect of his life sentence. The message is that he can have a good time in jail, indulging his sadistic fantasies, knowing that all his paraphernalia is safely in the hands of his agents. By contrast, giving his relatives back his keys or his wallet would have little tendency to make other sex murderers think that Beldotti had gotten away lightly; that would be a perfectly unremarkable thing to do with a prisoner’s effects, and it probably would never be publicly commented on or reach the ears of other sex murderers.
But the heart of the issue surely is that Kahan has forgotten about retribution. The most natural way to view the state’s refusal is as a retributive quid pro quo: you took a woman’s life with these sex toys, so to punish you we are going to refuse you the things that give you sexual pleasure.[3] The state mentioned not one reaction, but three: “outrage, disgust, and incredulity.” Kahan focuses only on disgust and contamination. But surely the first and third responses are also highly significant, and they go closely together. Outrage expresses the idea that it is unreasonable and wrong to reward Beldotti in just that area where he should be most severely punished. Such a reward would not only be astonishing—the response of “incredulity”—it would be a profound injury and disrespect to the dead, to anyone who cares about her, and to society itself. This sense of outrage is highly cognitive, expressing a reasoned judgment that can be publicly shared.[4] Its cognitions are not focused, as are those of disgust, on contamination to the self; they focus on the harm or wrong that has occurred. Outrage is thus closely linked to the idea of retributive punishment, to the thought that (instead of rewarding this guy by returning his murder weapons) we should be punishing him by denying him access to the tools he used to commit his hideous crime.[5]
Disgust is clearly in the picture; no doubt the state is right that the public would react with disgust (expressing a sense of contamination and defilement), as well as with outrage and incredulity, were it to grant the request. But outrage is sufficient to explain the result and why it is correct; we do not need to rely on disgust, as Kahan suggests. And outrage, as I have argued, is a moral sentiment far more pertinent to legal judgment, and far more reliable, than disgust. It contains reasoning that can be publicly shared, and it does not make the questionable move of treating the criminal like an insect or a slug, outside of our moral community. Instead, it firmly includes him within the moral community and judges his actions on a moral basis. Thus it avoids any tendency to portray the criminal as a monster, one whom none of us can possibly be.
Indeed, I believe it is clear that in the actual case outrage is not only the sounder response to Beldotti, but also more explanatory of the outcome and the opinions. For neither the state nor the court does treat Beldotti as an alien or a monster, with the eye of an “anthropologist disembarking on unknown shores.” They treat him as a perfectly sane person who has made an absolutely outrageous request. They react with “incredulity” because they assume that Beldotti is not a monster, but a sane human being, and must know that his request is outrageous. Were they thinking of him as like a slug or a heap of vomit, they would not be so outraged by the request, they would just see it as lunatic pathology. But they don’t: they know he is a human being with recognizable rationality, and that is why the right response to the request is anger. Disgust is there, but it is in considerable tension with outrage and incredulity. I suggest that the judgment in the case followed, rightly, the moral sentiment of outrage and indignation, which is much easier to square with treating Beldotti as a sane and responsible agent.
Disgust is a deeply embedded response. All adult human beings acquire it in some form, and all known societies teach it in some form. It may even be that many, or even most, human beings need some of it in order to live, because we cannot endure too much daily confrontation with our own decay and with the oozy stuffs of which our bodies are made. And although disgust does not do very well tracking genuine danger, it is a reasonably useful device for steering us away from danger when we are too young or too inattentive or ill-informed to ponder the merits of the case. We should not, however, conclude from these facts that disgust is a valuable response for legal and political purposes. Many responses that are deeply embedded in human life are morally questionable and unworthy of guiding public action. Disgust, I have argued, offers limited guidance in a narrow set of laws concerned with physical distaste and danger. But when it becomes a constructive criterion of legally regulable conduct, and especially when it conduces to the political subordination and marginalization of vulnerable groups and people, disgust is a dangerous social sentiment. We should be working to contain it, rather than building our legal world on the vision of human beings that it contains.
Edited by Richard Firth-Godbehere
[1] Dan M. Kahan “The Anatomy of Disgust in Criminal Law”, Michigan Law Review, 96, (1998), 1621-57; Kahan makes it clear that he is interested in this case in part because it is not a death-penalty case and thus helps us focus on the issue of disgust in isolation from the troubling problems of vagueness and capriciousness in the application of the death penalty.
[2] Beldotti v. Commonwealth, 669 N.E.2d 222 (Mass. Ct. App. 1996).
[3] The fact that the items would presumably never again be in Beldotti’s possession is no more problematic for this interpretation than it is for Kahan’s, since both of us think, plausibly, that giving them back to his agents in accordance with his wishes is a way of letting him have his way concerning them.
[4] See Sunstein, Kahnemann, and A Shkade ‘Assessing Punitive Damages with notes on Cognition and Valuation in Law)”, Yale Law Journal, 107, (1998), 2071 ff, concluding that judgments and rankings of outrage in punitive-damage cases are surprisingly constant and predictable across experimental juries constructed to reflect variety of many different sorts; financial awards, by contrast, are not at all constant.
[5] This is not inconsistent with my claim, above, that giving him back his money or other property would not occasion outrage, even though he might have used money or other property to commit his crime. The sex paraphernalia were intimately connected with the specific nature of the crime and its terrible brutality in a way that other items of property were not. Money is a necessary condition for all actions, good and bad, in a modern society, and thus has no links with crime per se.