Jan 16th 2016

Why Some Men Are Above the Law

by Martha C. Nussbaum

Ernst Freund Distinguished Service Professor of Law and Ethics, The University of Chicago

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.

TO FOLLOW WHAT'S NEW ON FACTS & ARTS, PLEASE CLICK HERE!




  

Browse articles by author

More Essays

May 1st 2021
EXTRACT: " The sad reality is that the Mizrahim (Jews of Middle Eastern and North African descent) were discriminated against from the day of Israel’s inception, whose Ashkenazi (European Jewish) leaders viewed them as intellectually inferior, “backward,” and “too Arab,” and treated them as such, largely because the Ashkenazim agenda was to maintain their upper-class status while controlling the levers of power, which remain prevalent to this day." ..... " The greatest heartbreaking outcome is that for yet another generation of Israelis, growing up in these debilitating conditions has a direct effect on their cognitive development. A 2015 study published in Nature Neuroscience found that “family income is significantly correlated with children’s brain size…increases in income were associated with the greatest increases in brain surface area among the poorest children.” "
Apr 25th 2021
EXTRACT: "We all owe Farah Nabulsi an enormous debt of gratitude. In a short 24-minute film, The Present, she has exposed the oppressive indecency of the Israeli occupation while telling the deeply moving story of a Palestinian family. What is especially exciting is that after winning awards at a number of international film festivals​, Ms. Nabulsi has been nominated for an Academy Award for this remarkable work of art. " 
Apr 25th 2021
EXTRACT: "When I crashed to the floor of my home in Bordeaux recently after two months of Covid-19 dizziness, I was annoyed. The next day I collapsed again. Now I was worried. What I didn’t know was that my brain was sloshing around inside my skull, causing a mild concussion. Nor did I know that I was in for a whole new world of weird and wonderful hallucinations."
Apr 13th 2021
EXTRACT: "Overall, our review has found that there isn’t evidence to back up the claims that veganism is good for your heart. But that is partly because there are few studies ....... But veganism may have other health benefits. Vegans have been found to have a healthier weight and lower blood glucose levels than those who consume meat and dairy. They are also less likely to develop cancer, high blood pressure and diabetes. "
Apr 8th 2021
EXTRACT: "Pollock’s universe, the universe of Mural, cannot be said to be a rational universe. Nor is it simply devoid of all sense. It is not a purely imaginary world, although in it everything is in a constant state of flux. Mural invokes one of the oldest questions of philosophy, a question going back to the Pre-Socratic philosophers Parmenides and Heraclitus – namely, whether the nature of Reality constitutes unchanging permanence or constant movement and flux. For Pollock, the only thing that is truly unchanging is change itself. The only certainty is that all is uncertain."
Apr 8th 2021
EXTRACT: "Many present day politicians appear to have psychopathic and narcissistic traits too. It’s easy to spot such leaders, because they are always authoritarian, following hardline policies. They try to subvert democracy, to reduce the freedom of the press and clamp down on dissent. They are obsessed with national prestige, and often persecute minority groups. And they are always corrupt and lacking in moral principles."
Apr 6th 2021
EXTRACT: "This has led some to claim that not just half, but perhaps nearly all advertising money is wasted, at least online. There are similar results outside of commerce. One review of field experiments in political campaigning argued “the best estimate of the effects of campaign contact and advertising on Americans’ candidates choices in general elections is zero”. Zero!"
Mar 30th 2021
EXTRACT: "The Father is an extraordinary film, from Florian Zeller’s 2012 play entitled Le Père and directed by Zeller. I’m here to tell you why it is a ‘must see’." EDITOR'S NOTE: The official trailer is attached to the review.
Mar 28th 2021
EXTRACT: "Picasso was 26 in 1907, when he completed the Demoiselles; de Kooning was 48 in 1952, when he finished Woman I.  The difference in their ages was not an accident, for studies of hundreds of painters have revealed a striking regularity - the conceptual painters who preconceive their paintings, from Raphael to Warhol, consistently make their greatest contributions earlier in their careers than experimental painters, from Rembrandt to Pollock, who paint directly, without preparatory studies."
Mar 26th 2021
EXTRACT: "Mental toughness levels are influenced by many different factors. While genetics are partly responsible, a person’s environment is also relevant. For example, both positive experiences while you’re young and mental toughness training programmes have been found to make people mentally tougher."
Mar 20th 2021

The city of Homs has been ravaged by war, leaving millions of people homeless an

Mar 20th 2021
EXTRACT: "There are two main rival models of ethics: one is based on rights, the other on duties. The rights-based model, which traces its philosophical origins to the work of John Locke in the 17th century, starts from the assumption that individuals have rights ....... According to this approach, duties are related to rights, but only in a subordinate role. My right to health implies a duty on my country to provide some healthcare services, to the best of its abilities. This is arguably the dominant interpretation when philosophers talk about rights, including human rights." ........ "Your right to get sick, or to risk getting sick, could imply a duty on others to look after you during your illness." ..... "The pre-eminence of rights in our moral compass has vindicated unacceptable levels of selfishness. It is imperative to undertake a fundamental duty not to get sick, and to do everything in our means to avoid causing others to get sick. Morally speaking, duties should come first and should not be subordinated to rights." ..... "Putting duties before rights is not a new, revolutionary idea. In fact it is one of the oldest rules in the book of ethics. Primum non nocere, or first do no harm, is the core principle in the Hippocratic Oath historically taken by doctors, widely attributed to the ancient Greek philosopher and physician Hippocrates. It is also a fundamental principle in the moral philosophy of the Roman statesman Marcus Tullius Cicero, who in De Officiis (On Duties) argues that the first task of justice is to prevent men and women from causing harm to others."
Mar 18th 2021
EXTRACT: "Several studies have recently compared the difference between antibodies produced straight after a coronavirus infection and those that can be detected six months later. The findings have been both impressive and reassuring. Although there are fewer coronavirus-specific antibodies detectable in the blood six months after infection, the antibodies that remain have undergone significant changes. …….. the “mature” antibodies were better at recognising the variants."
Mar 15th 2021
EXTRACT: "Like Shakespeare, Goya sees evil as something existing in itself – indeed, the horror of evil arises precisely from its excess. It overflows and refuses to be contained by or integrated into our categories of reason or comprehension. By its very nature, evil refuses to remain within prescribed bounds – to remain fixed, say, within an economy where evil is counterbalanced by good. Evil is always excess of evil." ....... "Nowhere is this more evident than in war. Goya offers us a profound and sustained meditation on the nature of war ........ The image of a Napoleonic soldier gazing indifferently on a man who has been summarily hanged, probably by his own belt, expresses the tragedy of war – its dehumanization of both war’s victims and victors."
Mar 14th 2021
EXTRACT: "A blockchain company has bought a piece of Banksy artwork and burnt it. But instead of destroying the value of the art, they claim to have made it more valuable, because it was sold as a piece of blockchain art. The company behind the stunt, called Injective Protocol, bought the screen print from a New York gallery. They then live-streamed its burning on the Twitter account BurntBanksy. But why would anyone buy a piece of art just to burn it? Understanding the answer requires us to delve into the tricky world of blockchain or “NFT” art."
Mar 14th 2021
EXTRACT: "Exercise is good for your health at every age – and you can reap the benefits no matter how late in life you start. But our latest research has shown another benefit of being physically active throughout life. We found that in the US, people who were more physically active as teenagers and throughout adulthood had lower healthcare costs."
Mar 10th 2021
EXTRACT: "Although around one in 14 people over 65 have Alzheimer’s disease, there’s still no cure, and no way to prevent the disease from progressing. But a recent study may bring us one step closer to preventing Alzheimer’s. The trial, which was conducted on animals, has found a specific molecule can prevent the buildup of a toxic protein known to cause Alzheimer’s in the brain."
Feb 24th 2021
EXTRACT: "The art historian George Kubler observed that scholars in the humanities “pretend to despise measurement because of its ‘scientific’ nature.” As if to illustrate his point Robert Storr, former dean of Yale’s School of Art, declared that artistic success is “completely unquantifiable.” In fact, however, artistic success can be quantified, in several ways. One of these is based on the analysis of texts produced by art scholars, and this measure can give us a systematic understanding of how changes in recent art have produced changes in the canon of art history."
Feb 24th 2021
EXTRACT: "The most politically sensitive option we looked at was the virus escaping from a laboratory. We concluded this was extremely unlikely."
Feb 16th 2021
EXTRACT: ".... these men were completely unaware that they had put their lives in the hands of doctors who not only had no intention of healing them but were committed to observing them until the final autopsy – since it was believed that an autopsy alone could scientifically confirm the study’s findings. As one researcher wrote in a 1933 letter to a colleague, “As I see, we have no further interest in these patients until they die.” ...... The unquestionable ethical failure of Tuskegee is one with which we must grapple, and of which we must never lose sight, lest we allow such moral disasters to repeat themselves. "