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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.