Hiding from Humanity: Disgust, Shame, and the Law

Introduction
I. Shame and Disgust: Confusion in Practice and Theory
A California judge orders a man convicted of larceny to wear a shirt stating, "I am on felony probation for theft." In Florida, convicted drunk drivers are required to display bumper stickers reading "Convicted D.U.I." Similar stickers have been authorized in other states, including Texas and Iowa.1 Penalties like these, involving public shaming of the offender, are becoming increasingly common as alternatives to fines and imprisonment.
Jamie Berube was born with Down syndrome. As a result of changes enacted under the Individuals with Disabilities Education Act, he has an Individualized Education Plan that provides for him to be "mainstreamed" in a regular public school classroom, albeit with a monitor. The teacher and monitor work to ensure that Jamie need not live as a shamed and stigmatized person, and his condition need no longer be the object of humiliation.2 Stephen Carr, a drifter lurking in the woods near the Appalachian Trail, saw two lesbian women making love in their campsite. He shot them, killing one and seriously wounding the other. At trial, charged with first-degree murder, he argued for mitigation to manslaughter on the grounds that his disgust at their lesbian lovemaking had produced a reaction of overwhelming disgust and revulsion that led to the crime.3 In a 1973 opinion that still defines the law of obscenity, Chief Justice Warren Burger wrote that the obscene must be defined in a manner that includes reference to the disgust and revulsion that the works in question would inspire in "the average person, applying contemporary community standards." To make the connection to disgust even clearer, Justice Burger added a learned footnote about the etymology of the term from Latin caenum, "filth," and cited dictionary definitions defining obscenity in terms of disgust (as will be discussed in chapter 3).4
Shame and disgust are prominent in the law, as they are in our daily lives. How do, and how should, they figure in law's formulation and administration? Even in this small sampling of cases, the role of the two emotions seems complicated and hard to pin down. Shaming penalties encourage the stigmatization of offenders, asking us to view them as shameful. At the same time, current trends in our treatment of the disabled, typified by the case of Jamie Berube, discourage persistent habits of stigmatization and shaming, in the name of human dignity and individuality. Other previously excluded groups, such as gays and lesbians, have also fought against social stigmatization with some success.
Of course there is no obvious contradiction between these two trends, because it is consistent to hold that the disabled are blameless, and therefore should not be shamed, while criminals should be. It is also consistent to hold that those who commit consensual sexual acts, however controversial, should not be stigmatized, while those who harm others should be. But there may yet be a deeper tension between support for punishments that humiliate and the general concern for human dignity that lies behind the extension of stigma-free status to formerly marginalized groups--and, in general, between the view that law should shame malefactors and the view that law should protect citizens from insults to their dignity.
Disgust, too, functions in complicated ways. It serves, sometimes, as the primary or even sole reason for making some acts illegal. Thus, the disgust of the reader or viewer is one primary aspect of the definition of obscene materials under current obscenity laws. Similar arguments have been used to support the illegality of homosexual relations between consenting adults: they should be illegal, it is alleged, because the "average man" feels disgust when he thinks about them. It is used to justify the criminalization of necrophilia; it has been proposed as a reason for banning human cloning. And disgust has also been taken to be an aggravating factor in acts already illegal on other grounds: the disgust of judge or jury at a murder may put the defendant into a class of especially heinous offenders. On the other hand, disgust also plays a role in mitigating culpability. Although Stephen Carr did not succeed in his attempt to win a reduction on the ground of his disgust, and was convicted of first-degree murder, other offenders have succeeded in winning mitigation with a similar defense.5
Again, there appears to be no real inconsistency here, since the disgust of an observer is obviously distinct from the disgust of a perpetrator. It seems consistent to hold that citizens should be shielded by law from what disgusts them, and yet that overwhelming disgust might serve as a mitigating factor in the case of a violent act.