The Anatomy of Disgust in Criminal Law

Judgments of and about disgust play a critical role in criminal law. Certain homicides, including homophobic ones, may be graded more severely or less because they are motivated by disgust; certain forms of punishment, including shaming penalties, express public disgust with criminals; and certain sentencing regimes, including those that use the "outrageously or wantonly vile" standard, treat an offender's own appetite for disgust as a ground for capital punishment. Yet disgust has received almost no systematic attention from criminal law theorists. This essay seeks to remedy this inattention by drawing on William Miller's The Anatomy of Disgust (1997). Miller depicts disgust not as an unthinking or instinctive aversion, but rather as a cognitive evaluation that is constructed by, and that reinforces, hierarchic social norms. The centrality of such norms to moral perception explains the ubiquity of disgust judgments in criminal law; dissensus over the content of such norms accounts for the political controversy that disgust judgments typically provoke. This essay uses Miller not only to explain the role of disgust in criminal law, but also to appraise it. Disgust furnishes indispensable but imperfect moral guidance; the way to redeem disgust, Miller's account suggests, is not to ignore it, but rather to test its urgent claims by pitting disgust against other moral sentiments, such as mercy.