Human Nature: Science, Technology, and Life.

Polanski: Three Questions

I've been reading your comments on the Roman Polanski case. Some of you are mischaracterizing what I wrote on Tuesday and Wednesday. But if I'm going to criticize you for confusing the issues, I'd better criticize myself, too.

What we've been debating in "The Fray" are at least three different questions. One is whether Polanski raped Samantha Geimer outright. By this, I mean rape defined by coercion, not simply by the younger party's age. This is a question of fact. Ideally, if we were a jury, we'd hear her testimony and his, and we'd be presented with corroborating evidence for each side, to the extent that it could be produced. Unfortunately, we don't have such a complete case. What we have is her grand jury testimony and a few other bits that have been disseminated over the Internet. Under these circumstances, I can't pretend to resolve the facts, and this wasn't my point anyway. But I should be clear: If the case is ever fully presented and Polanski is proved guilty of rape, he should be put away for a long time, and that's that.

If he isn't proved guilty of rape, we move on to the second question: Should he have been allowed to plead to statutory rape instead? I can understand the desire of prosecutors and the public to nail him for something. But I don't like using rape defined by age as a proxy for rape defined by coercion. (I don't like using sodomy as a fallback charge, either, which the prosecution also employed in this case.) To the extent that elements of coercion are present—and according to Geimer's testimony, they were—it's better to make them part of the statute and the prosecution's case.

The third question is whether to treat sex with a 13-year-old as pedophilia. That was my original question, and my answer is complicated: The age of consent can't really be one number, since people mature in different ways at different ages. This question touches on the claim from Polanski's probation report that I originally targeted: that there was evidence "that the victim was not only physically mature, but willing." Is maturity an arguable factor with a 13-year-old, particularly one who's posing nude in a jacuzzi? Yes. Is Polanski's age, as opposed to Genarlow Wilson's age, an arguable factor in assessing his culpability? Yes again. Is either factor dispositive? No.

Several of you have said that Polanski is a bad case for making my point about pedophilia. You're right. I tried to focus on the third question and then the second, but the first overwhelms the conversation. I don't mean to slight the first question. But I do want to separate the three questions so we can talk about each of them clearly.

On that point, I'm guilty of conflating them myself. In my first post on this subject, I mentioned that the probation report said Polanski's offense "appears to have been spontaneous and an exercise of poor judgment by the defendant." I then wrote: "That's an entirely reasonable assessment of the incident." I shouldn't have written that sentence, because it characterized the whole case and thereby took a position on the first question, which wasn't my point and on which I had no expertise.

I hope that by laying out the issues this way, I've undone some of the confusion I caused and liberated each of the questions for clearer consideration.

Polanski Revisited

Yesterday I wrote about the importance of legal and moral distinctions in the Roman Polanski case. Many of you, in response, called attention to the victim's grand jury testimony, which alleges that Polanski gave her a Quaalude and that he ignored her instructions to stop. Those allegations are important pieces of evidence. Not decisive—we don't convict people in this country based on grand jury testimony from one party—but important. So are other parts of her testimony, which detail apparently voluntary acts of compliance, such as taking off her underwear.

It's obvious to everyone—including Polanski, who has conceded as much—that what he did was wrong. Viscerally, I'd like to punch the guy in the mouth. And I wish the rape charge had been tried and resolved. But we shouldn't contort our justice system to nail this or that defendant. The distinctions we draw or fail to draw in our laws endure from case to case. We have to get them right.

It's entirely legitimate and relevant to cite evidence "that the victim was not only physically mature, but willing," as Polanski's probation officers did. It's also legitimate and relevant to cite evidence that the victim was unwilling, as her grand jury testimony did. The same goes for the fact that he gave her a Quaalude, that he took one himself, and that she saw the one he gave her and took it anyway, knowing what it was because she had taken one before. All these details are relevant.

This isn't an argument for knowing or thinking less about such incidents. It's an argument for knowing and thinking more. Sometimes that means rethinking sentences that conflate teen exploiters with pedophiles. Sometimes it means exposing child abuse that's been swept under the rug. For an illustration of the latter problem, check out the story in today's New York Times about ultra-Orthodox Jews in Brooklyn who are beginning to report child sexual abuse to police instead of leaving such cases to rabbinic authorities. According to the article,

The father of a Brooklyn 10-year-old said in an interview that the mishandling, as he viewed it, of sexual abuse cases by rabbinical courts had persuaded him to contact the police immediately when his son told him last year that a neighbor had abused him. ... When his 6-year-old son told him one day that Rabbi Kolko had sexually abused him, [another] father said he resolved to go to the police because he knew that the Brooklyn hierarchy had protected the rabbi in the past.

These aren't 13- or 15-year-olds, for whom an argument about willingness can at least be made. They're prepubescent kids. And ultra-Orthodox communities seem to have been slow to recognize the rights of individuals, as opposed to families or peoples:

Taboos codified long ago during times of persecution discourage community members from informing on other Jews; violations can result in ostracism. ... Rabbi Meir Fund, who leads a synagogue known as the Flatbush Minyan, said that child molesters should be prosecuted, but that victims should consult with a rabbi before going to the police. Connections among the [ultra-Orthodox] are too entangled to discount the damaging ripple effects of accusations on the accused person's family, Rabbi Fund said. Advocates for victims say similar views have informed some of the Brooklyn rabbinical leadership's worst judgments, allowing prominent rabbis who were repeatedly accused of abuse to keep their jobs and reputations.

This kind of coarseness gets in the way of justice. Victims and perpetrators deserve their due as individuals. They mustn't be ignored or protected for the putative sake of their families or their communities.

The same goes for laws about sexual abuse. If you have the goods to convict a man of rape, prosecute him for rape. Don't invite him to plead guilty to sex with a teenager. That kind of plea deal, coupled with a stiff jail sentence, just furthers the conflation of sexual assault defined by force with sexual assault defined by age.

And if you think it's fine to conflate these two definitions of rape—that any statute is worth using to put away this or that scumbag—don't forget the other crime Polanski was charged with: sodomy. Sex-crime prosecutions, detached from proof of force, can take you places you don't want to go.

The Polanski Affair

The New York Times suggests he might:

Manners, mores and law enforcement have become far less forgiving of sex crimes involving minors in the 31 years since Mr. Polanski was charged with both rape and sodomy involving drugs. He fled rather than face what was to have been a 48-day sentence after he pleaded guilty to unlawful sex with a minor. But if he is extradited from Switzerland, Mr. Polanski could face a more severe punishment than he did in the 1970s, as a vigorous victims' rights movement, a family-values revival and revelations of child abuse by clergy members have all helped change the moral and legal framework regarding sex with the young.

The Times portrays the differences between then and now as reflections of a shameful past. And some of the attitudes reflected in the original Polanski prosecution really were stupid. For example, a 1977 report by two probation officers on Polanski mentioned "some permissiveness by the mother" of the girl in question, since she had let the girl spend time with the director. How is a mother's permissiveness relevant to the culpability of the guy who bangs her daughter? It isn't. It's straight old-fashioned cultural bigotry, blaming a crime against an individual on the morals of her family.

But what about other factors cited in the probation officers' report? The Times notes that "in a conclusion that might particularly jar readers today, [the report] pointed toward evidence ‘that the victim was not only physically mature, but willing.' "

Hold it right there. Why exactly should we be aghast that the legal system of the 1970s considered such evidence relevant to Polanski's culpability? Why aren't the physical maturity and willingness of the girl—or boy—significant?

In fact, they are. As I've pointed out before, over the past 150 years in the United States and Europe, the average age of menarche—a girl's first period—has fallen two to four months per decade, depending on the country. In 1840, the age was 15.3 years. By the early 1980s, it was 12.8. It's quite plausible that the 13-year-old girl Polanski had sex with in the late 1970s was, to some degree, sexually mature.

Having sex at 13 is a bad idea. But if you're pubescent, it might be, in part, your bad idea. Having sex with a 13-year-old, when you're 40, is scummy. (Personally, I'd be stricter. If I ran a college, I'd discipline professors for sleeping with freshmen.) But it doesn't necessarily make you the kind of predator who has to be locked up. A guy who goes after 5-year-old girls is deeply pathological. A guy who goes after a womanly body that happens to be 13 years old is failing to regulate a natural attraction. That doesn't excuse him. But it does justify treating him differently.

And that's exactly what Polanski's judge and probation officers were inclined to do. The Times reports that the authorities treated Polanski "not so much as a sexual assailant but as ... a normally responsible person who had shown terrible judgment by having sex with a very young, but sophisticated, girl." The probation officers' report "quoted a pair of psychiatrists as saying that Mr. Polanski was not ‘a pedophile,' " and it concluded that his offense "appears to have been spontaneous and an exercise of poor judgment by the defendant."

That's an entirely reasonable assessment of the incident. There's a difference between pedophilia and taking advantage of somebody who's old enough to be interested in sex but too young to judge the physical and emotional risks of messing around. If the legal officers and moral critics of the 1970s saw that distinction more clearly than we do, the shame is ours.

(See Wednesday's follow-up post on Polanski.)

Tobacco: Banned in Boston

The health police have crossed another line. Four months ago, they banned new fast-food restaurants in a 32-square-mile area of Los Angeles. In that case, they crossed the line from restricting food for kids to restricting it for adults. They also extended the practice of health zoning from liquor to food.

Now they've breach another line between paternalism for children and paternalism for adults. The Boston Public Health Commission has just banned the sale of all tobacco products at colleges. Not high schools. Colleges.

Anti-smoking activists are ecstatic. "Boston has taken another step that puts it in the forefront in the United States in protecting people against secondhand smoke," says the president of the Campaign for Tobacco-Free Kids. But the Boston regulations don't just restrict smoking. They forbid the sale of "any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe, tobacco, snuff, chewing tobacco and dipping tobacco." Last I heard, there's no secondhand smoke from chewing tobacco. And the tobacco industry is constantly developing new products that confound the equation of tobacco with smoking. That's not because tobacco companies care deeply about public health. It's because secondhand smoke has become a political problem for them—and because, while addicting customers is good business, killing them isn't.

In a press release, the executive director of the Boston commission says the new regulations "will help reduce young people's exposure to tobacco products." Young people? That phrase used to mean minors. Now, apparently, it includes the targets of the new rule: students at "any public or private college, normal school, professional school, scientific or technical institution, university or other institution furnishing a program of higher education."

On what grounds do college students—not to mention students at professional schools—deserve the kind of paternalism previously reserved for minors? The commission offers two reasons. First, "educational institutions in the City of Boston also sell tobacco products to the younger population, which is particularly at risk for becoming smokers." Second, "the sale of tobacco products is also incompatible with the mission of educational institutions which educate the younger population about social, environmental and health risks and harms."

In other words, college students (henceforth known as "the younger population") are so vulnerable to smoking and to deception about the harms of smoking that their access to any tobacco products on campus must be legally forbidden.

It's true that laws across the United States set the legal drinking age at 21. But those laws are based on the argument that alcohol makes people aged 18 to 20 drive dangerously. Where's the evidence that chewing tobacco makes these people drive dangerously?

To repeat: I detest smoking. But if there's no secondhand smoke and no secondhand driving effects, what are the grounds for telling a 20-year-old college student—let alone a 25-year-old professional-school student—that tobacco is off-limits? And if that kind of paternalism can be extended so easily from minors to 25-year-olds, who's next?