What’s “Unlawful Sexual Intercourse”?

And other questions from the Explainer’s Roman Polanski roundup.

Roman Polanski

Film director Roman Polanski was arrested in Switzerland on Saturday and faces possible extradition to the United States. In 1977, Polanski drugged and raped a 13-year-old girl in the home of actor Jack Nicholson. The sensational case raises a variety of questions, answered herewith.

Polanski hasn’t exactly been lying low for the last three decades—he even won an Oscar in 2002 for The Pianist. Why didn’t the French government ever hand him over?
Because he’s a French citizen. Under the current U.S. extradition treaty with France (PDF), either country may refuse to extradite its own citizens. (Polanski was born in Paris.) This sort of exemption is a widespread and time-honored aspect of international relations. Neither the Greeks nor the Romans would extradite their own. In the modern era, France has been the strongest advocate for this provision. (The United States did manage to strong-arm the French into dropping the policy in 1843, but France changed its mind a few years later.) Some extradition treaties override the provision when it comes to heinous crimes. A citizen might be extradited, for example, if he were accused of murder or rape.

Why did the Swiss choose this moment to arrest Polanski?
Because the United States asked them to. The authorities over there might have nabbed Polanski in years past, given that he owns a home in a Swiss skiing town and travels there regularly. State and federal prosecutors in the United States may have begun tracking the director’s movements more carefully this year after Polanski tried in December to have his case dismissed from abroad. (Moving to have your criminal charges dropped while you’re still on the run is a good way to infuriate prosecutors.) When the United States asked for him to be arrested, the Swiss authorities had little choice but to comply with the terms of our extradition treaty.

Polanski pleaded guilty to “unlawful sexual intercourse” with a minor. What’s the difference between that and statutory rape?
They’re synonymous. Only a few states—Georgia, Missouri, and North Carolina—actually use the term “statutory rape” in their penal codes. Other legal euphemisms for having sex with someone who’s underage include “Rape in the Third Degree” (New York), “Felonious Sexual Assault” (New Hampshire), and “Carnal Knowledge of a Child” (Virginia).

The California Penal Code currently defines unlawful sexual intercourse as sexual contact with anyone under 18. The penalties become more severe as the age gap widens.

Some news sources have reported that at the time of Polanski’s crime, the age of consent was either 14 or 16. This is incorrect. California’s first penal code in 1850 proscribed sex with girls under the age of 10. The age of consent was raised to 14 in 1889, to 16 in 1897, and finally to 18 in 1913, where it has remained since that time.

Polanski molested his victim more than 30 years ago. Hasn’t the statute of limitations run on his crime?
No. The statute of limitations for a crime requires the state to make a formal charge against the defendant within a certain timeframe. Polanski was charged within a few weeks of the crime and pleaded guilty. At this point, he is a fugitive from justice who is awaiting sentencing. Once you’re a fugitive, the statute of limitations clock stops ticking.

Some articles note that Polanski wants the charges against him dropped because the judge engaged in misconduct. What’s that about?
In 1977, Polanski agreed to plead guilty to unlawful sexual intercourse. The presiding judge, Laurence Rittenband, was to decide Polanski’s sentence after reviewing a report from the Probation Department and holding a hearing with attorneys for each side. All parties expected Polanski to get only probation.

According to a recent documentary, Los Angeles Deputy District Attorney David Wells, who was not involved in the case, intervened with Rittenband. Wells thought Polanski was being cavalier about the charges against him and should serve time for his misdeed. (Wells showed the judge photographs of Polanski partying in Munich with his arms around two young women who Wells claimed were underage.) Rittenband seemed to be convinced and suggested to Polanski’s attorneys that he would send the director to prison and order him deported. At that time, Polanski fled.

While Wells was not himself an attorney of record in the case, he was a lawyer for one of the parties—the state of California. The California Code of Judicial Ethics (PDF) forbids judges to engage in ex parte communications—discussions where only one side is represented.

There is no question that Rittenband violated the ethics code. The question of whether his conversations with Wells are sufficient grounds for dismissal of the charges against Polanski is an open question. There is very little law on the subject to guide the judge who’s now presiding over the case. Outright dismissal is an exceedingly rare remedy for ex parte communications, especially when the communications came after the plea agreement was reached. It’s far more common for the plea agreement to stand, with a new judge brought in to preside over the sentencing. The original judge could also face sanctions. (Judge Rittenband is deceased, so there’s a good chance the unethical contacts will have no impact.)

Got a question about today’s news? Ask the Explainer.

Explainer thanks Gerald F. Uelmen of Santa Clara Law and Charles D. Weisselberg of Berkeley Law.