Why Some Men Are Above the Law

by Martha C. Nussbaum Ernst Freund Distinguished Service Professor of Law and Ethics, The University of Chicago 16.01.2016

Bill Cosby has been finally charged with sexual assault. For anyone who has followed the case, one striking aspect is how late an actual indictment has come, and after a huge number of accusations.

One legal problem has been the statute of limitations for rape, an issue by now much discussed. But another obvious aspect is the fact that as a society we have created a class of glamorous and powerful men -- entertainers, athletes -- who are in a most literal sense above the law. They will almost always prevail against all accusations, no matter what they do in the sexual domain, because they are shielded by glamor, public trust, and access to the best legal representation. Cosby is the exception only because his alleged abuses of women were so numerous and so flagrant. So what I think as I read the news is, "For one Cosby, there are hundreds like him who will never be indicted."

I think this way because I have my own Bill Cosby tale to tell. In the winter of 1968, when I was an enterprising twenty-year-old, I had a big crush on a well-known actor who shortly became another of America's beloved TV dads. He was a really good actor, and at that time he was playing a major stage role in New York. He was then around forty. After going out with him a couple of times, I asked him back to my off-campus apartment. I had had some sexual experience, but not much; however, I decided to be daring, since it was the late 60's and I felt that I should join the culture. Unlike the Cosby women, I certainly intended to consent to intercourse. What I did not consent to was the gruesome, violent, and painful assault that he substituted for intercourse. I remember screaming for help, to no avail, and I remember him saying, "It's all part of sex."

I never seriously considered going to the police, even though there was a lot of forensic evidence. I was just too embarrassed. I didn't even go to a doctor. And I thought, with good reason, that the police would dismiss the issue because I had after all consented to some kind of sex act. Even now, the law is not well equipped to handle that type of case, since consent is usually understood to be an all or nothing matter, despite the fact that there is a world of difference between what I intended to consent to and what happened to me. I've taught rape law and read a large amount on this topic and have never found discussion of this question. This, at least, we can fix, with more nuanced accounts of legal consent in the case of violent practices.

But the issue I want to focus on is that even had all these problems been solved, the celebrity in question would certainly have prevailed. He would have denied my allegations, cast aspersions on my reputation, even perhaps attempted to portray me as an extortionist. My life, personal and professional, would have been profoundly damaged, and nothing would have been accomplished. Not specific deterrence, since I am sure he was undeterrable, shielded by fame as he was, and not general deterrence, since I would have failed. No doubt dozens of other women have come to the same conclusion about this particular man. And who knows how many hundreds or thousands have about how many hundreds of other male celebrities.

So what did I do? After my injuries faded, I decided not to "join the culture." I met a lovely man my own age, settled down into a monogamous life, married, and soon had a child. I was very lucky: I have never experienced any sexual trauma from the episode, and to this day I think it has affected me almost not at all, except that I never wanted to watch his TV show, which is not the type of show I would normally watch anyway. (Perhaps the episode also explains my strong interest in Law and Order SVU!)

I've had a very happy life, in sexual and other respects. I observed the moralized public enthusiasm for my assailant with ironic detachment. Only thirty years later, when he ran for a major political office, did I ever consider coming forward with my story, just to tell the story, since I thought it was preposterous that he should hold a position of public trust. But close friends assured me that nobody would believe me after such a lapse of time, and he would be certain either to portray me as an extortionist or to sue me for defamation. (The famous are indeed unusually exposed to extortion, and that vulnerability itself is an aspect of their impunity: everyone easily believes that this is what a complaining woman is after.) I consoled myself with the fact that he was after all a Democrat, running against an especially vapid Republican opponent. Even now that he is dead, I don't name him, because the Vince Foster case showed us that a person's privacy interest can be held to survive death, and who on earth knows what some court might say about a reputational interest?

Mine has been a selfish and self-protective response. I do wonder whether even a futile complaint could have prevented other harms. Still, to make one's life all about a harm, since that is what protracted litigation would have done, seems to me a sacrifice that morality does not demand.

Law cannot fix this problem. Famous men standardly get away with sexual harms, and for the most part will continue to do so. They know they are above the law, and they are therefore undeterrable. What can society do? Don't give actors and athletes such glamor and reputational power. But that won't happen in the real world. What can women do? Don't be fooled by glamor. Do not date such men, unless you know them very, very well. Do not go to their homes. Never be alone in a room with them. And if you ignore my sage advice and encounter trouble, move on. Do not let your life get hijacked by an almost certainly futile effort at justice. Focus on your own welfare, and in this case that means: forget the law.

Martha C. Nussbaum teaches in the Law School and Philosophy Department at the University of Chicago. Her many books include SEX AND SOCIAL JUSTICE (1999), WOMEN AND HUMAN DEVELOPMENT (2001), and ANGER AND FORGIVENESS: RESENTMENT, GENEROSITY, JUSTICE (forthcoming this spring).

Martha Nussbaum received her BA from NYU and her MA and PhD from Harvard. She has taught at Harvard University, Brown University, and Oxford University. From 1986 to 1993, Nussbaum was a research advisor at the World Institute for Development Economics Research, Helsinki, a part of the United Nations University. She has chaired the American Philosophical Association’s Committee on International Cooperation, the Committee on the Status of Women, and the Committee for Public Philosophy. From 1999 to 2000, she was one of the three Presidents of the Association, delivering the Presidential Address in the Central Division. She has received honorary degrees from fifty colleges and universities in the U.S., Canada, Latin America, Asia, Africa, and Europe, including Lawrence University, Williams College, the University of Athens (Greece), the University of St. Andrews (Scotland), the University of Edinburgh (Scotland), Katholieke Universiteit Leuven (Belgium), the University of Toronto, the Ecole Normale Supérieure (Paris), the New School University, the University of Haifa (Israel), Emory University, the University of Bielefeld (Germany), Ohio State University, Georgetown University, the University of the Free State (South Africa), and the Universidad Iberoamericana (Mexico). She received the Grawemeyer Award in Education in 2002, the Barnard College Medal of Distinction in 2003, the Radcliffe Alumnae Recognition Award in 2007, and the Centennial Medal of the Graduate School of Arts and Sciences at Harvard University in 2010. She is an Academician in the Academy of Finland. In 2009 she won the ASK award from the German Social Science Research Council (WZB) for her contributions to "social system reform," and the American Philosophical Society's Henry M. Phillips Prize in Jurisprudence. In 2012 she was awarded the Prince of Asturias Prize in the Social Sciences. 

Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics, appointed in the Law School and Philosophy Department. She is an Associate in the Classics Department, the Divinity School, and the Political Science Department, a Member of the Committee on Southern Asian Studies, and a Board Member of the Human Rights Program.

Her publications include Aristotle's De Motu Animalium (1978), The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (1986, updated edition 2000), Love's Knowledge (1990), The Therapy of Desire (1994, updated edition 2009), Poetic Justice (1996), For Love of Country (1996), Cultivating Humanity: A Classical Defense of Reform in Liberal Education (1997), Sex and Social Justice (1998), Women and Human Development (2000), Upheavals of Thought: The Intelligence of Emotions (2001),Hiding From Humanity: Disgust, Shame, and the Law (2004), Frontiers of Justice: Disability, Nationality, Species Membership (2006), The Clash Within: Democracy, Religious Violence, and India’s Future (2007), Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (2008), From Disgust to Humanity: Sexual Orientation and Constitutional Law (2010), Not For Profit: Why Democracy Needs the Humanities (2010), Creating Capabilities: The Human Development Approach (2011),  The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age (2012), Philosophical Interventions: Book Reviews 1985-2011 (2012) and Political Emotions: Why Love Matters for Justice  (2013). She recently delivered the John Locke Lectures at Oxford University, which will be published in 2014 as Anger and Forgiveness. She has also edited fifteen books.


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