He Says "Scary" Like It's a Bad Thing

The Chicago Tribune reports:

French Culture Minister Frederic Mitterrand was quoted in French media as saying, "In the same way that there is a generous America that we like, there is also a scary America that has just shown its face."

The law is supposed to be scary to criminals -- and the law's persistence, over the span of decades, is scarier still, but rightly so. People shouldn't be able to evade justice by fleeing to a hospitable jurisdiction. Sometimes they in fact can, because of various legal restraints on extradition. But if they slip up and fall outside the protection of those regimes, justice should indeed pursue them, and in the process scare others into realizing that justice is not easy to avoid.

Conversely, generosity here would be a misplaced generosity. The only person who rightly deserves generosity is the victim, who understandably doesn't want a fresh outbreak of publicity. Some victims are emotionally helped by the punishment of those who victimize them, but others might on balance be hurt by it. And indeed this risk is usually greater many decades later, when the satisfaction of knowing that the person who harmed you is being punished is generally less, and the worry about renewed unwanted publicity is the same or even greater.

But we also need to think about not just generosity but also the simple debt we owe to other potential victims, to do what we can to prevent such crimes in the future -- both by deterring potential victimizers and by reinforcing the norm that even fame, money, and talent shouldn't protect one against punishment. And generosity to Polanski? It's hard to see why he is a fitting target for generosity. Some say he has suffered enough; and without doubt he has paid a cost. Practical exile even to a friendly country in which one can still work and be celebrated is something of a cost. But it's not the sort of cost, it seems to me, that criminals of this sort need to pay.

Naturally, much depends on the nature of the crime. The milder the crime, the less of an imperative there is for punishment, and of course the less the proper punishment should generally be. And even this crime, while serious, is not as horrific as some crimes, such as murder or forcible rape of children. (The statement of the victim, to the extent that it is uncolored by the financial settlement with the criminal -- and I can't say in this case whether it is or it's not -- is certainly some evidence of the magnitude of the harm done in this case, which in turn is part of the evaluation of the magnitude of the crime.)

But this was no normal tryst with a 17-year-old, of the sort that might be labeled statutory rape but is generally not prosecuted, may not be much different from legal sex with an 18-year-old, and would in fact be legal throughout most of the United States. This was apparently sex with a 13-year-old girl to whom Polanski had given champagne and part of a Quaalude. By any standard, this is a very serious harm, one for which the "42 days in prison [spent for] diagnostic tests" before the conviction does not seem an adequate punishment, especially given that Polanski's fleeing lost him the benefit of any sentencing discount he might have hoped to get for plea-bargaining (though it sounds like the discount wouldn't have been as much as he'd wanted).

So, yes, it's a scary part of America that tries to pursue justice even 32 years later. And there should be a scary part of France that does the same to those who commit serious crimes in France, and a similarly scary part of all civilized countries.

Thanks to InstaPundit and Megan McArdle for the pointer.

 

 

Comments

[camches]

"And even this crime, while serious, is not as horrific as some crimes, such as murder or forcible rape of children."

Do you believe that someone can legally give consent under the influence of alcohol or drugs? Do you believe that a 13 year old can legally consent to have sex with an adult? If you don't, please retract this. This WAS the forcible rape of a child.

[sunnybunny]

I don't know exactly what happened with Mr Polanski, but I can remember being a teenager. I believe that I can and have given consent under the influence of drugs and alcohol, and I also believe that at 13 , I was capable of deciding who to have sex with. So therefore I would have to concede that depending on the individual victim, the situation might vary. In my opinion, these cases should be treated according to the victims wishes.

[camches]

I'm afraid we'll have to agree to disagree because I don't believe that a child can consent to have sex with an 44 year old adult. Especially not when the adult has given her quaaludes. Maybe you should read the victim's testimony, where she asked to be taken home and said no multiple times before Polanski anally raped her.
http://www.thesmokinggun.com/archive/polanskicover1.html

The case was pled down in accordance with the victim's wishes so that she wouldn't have to testify at a jury trial and Polanski pled guilty. If he hadn't run, this would be over by now. If the victim said "I think he should be forcibly castrated with a rusted knife" would you still agree that these cases should be treated according to the victim's wishes? Of course not. These cases are brought by the state because people who commit violent crimes against members of society hurt society.

[Tallulah Morehead - Huffpost Blogger]

You looked at the Huffington entertainment page, saw the 7000 blog pieces on Prolanski, and thought "It needs one more"? If I see ONE MORE POLANSKI PIECE on this page, my eyeballs will explode!!!!

Move on, writers! Hey, didn't Jon Gosselin do anything stupid today? What is Susan Boyle up to?

Time to LET IT GO. The story will be around for MONTHS as Roman fights extradiction, since manning up is clearly not in his playbook. But as of today, if we put together all the two cents that each writer and commenter (including me) has tossed in, we could pay off the National Debt.

[sdskelton03]

You just gonna cut and paste this on any Polanski themed post?

[tkondaks]

One of the best of the now 6 or 7 blogs on this website on this subject.

Thanks for your very well thought out article, Mr. Volokh.

[Javani]

Very interesting, thank you.

Here is an article in French that may interest you,

http://www.lematin.ch/actu/suisse/roman-polanski-garde-moral-prison-172231

Polanski is held in Zurich where they speak German, I do not.

The French article details Polanski's incarceration circumstances. Also, he has obtained a French law team who seem to think they can negotiate directly with the "American judge" themselves while extradition is delayed.

[Javani]

I add, I see many comments elsewhere noting he has a home in Switzerland.

Given that the house is in Gstaad, he may have driven to it from France through the French speaking region where his passport is not checked, or if so, the local border sentry salutes him and waves him through. Or flew to Geneva or private air strip.

This time, he entered via Zurich International, a different matter altogether.

Another possibility is he was knowingly tolerated by the Swiss, or the local canton continuously "misplaces" the paperwork. But this time his entry was to brash, too well publicized. The police could not ignore it--this time. Speaking of Hollywood, I recall reading about the arrest of the "Hollywood Madame". The police knew of other madames, but this one made the mistake of hubris--bragging publicly about how she beat the law.

Hubris on Polanski's part? Maybe, but he was enticed by the Swiss government itself. At Le Matin there is an article describing the culture and foreign minister protests that they did not know ahead of time.

The Justice Minister admitted the opposite.

Best part, the Culture minister was literally left waiting for a late Polanski, uniformed about the arrest.

[gerald4]

Look at the actions of the French people during World War II. They surrendered without much of a fight, made money feeding and supplying the German soldiers to whom they surrendered. The French citizens happily provided sex, wine, food, shelter and all sorts of other assistance to their German conquerers. The French people were allies with the NAZI government of Germany, and happy to be making money off of the Germans.

Why would you expect any different actions from the French today? The French moral compass points in a different direction than the normal US citizen's moral compass. How did the French people treat their Jewish Citizens during WWII?

There were some very honorable French citizens in France during WWII.

[jules23]

The american moral compass points in peculiar directions as well. France, as far as I know, doesn't support torture, or indefinite detention. You should be careful with your generalizations.

[gerald4]

Why does the victim have any say in this case?

The LA taxpayers paid a lot of money to convict Polanski, maybe even more money than Polanski paid the mother of the rape victim.

Did Michael Jackson paying his victim's parents a lot of money set any legal precident?

[poomplet]

He wasn't convicted of anything.

His lawyers & the DA agreed on a slap on the wrist, but the judge threw that out. Then he fled.

What is his current legal status? I'm hoping someone can clear that up for me.

[Tallulah Morehead - Huffpost Blogger]

He pled guilty. When that plea was entered into the record, he was convicted.

[ClosedEyesOpenMInd]

According to her statements, she just want to left the heck alone....

[benrod1]

Unfortunately for her, every time the man gets an award or appears on some tv show proclaiming himself a victim, this will come back to her. The only way to finally put this all to rest and give her back her sense of peace is for him to finally man up and take responsibility for his actions and face the sentence that he cowardly avoided for all this time.

[poomplet]

Help me/us out here, professor...

People keep saying that he plead guilty back in the 70's, then fled. But wasn't that plea wholly contingent on the plea bargain agreed to between the DA & his lawyers? Ergo, when the judge threw that plea out, Roman went back to being a suspect who could face trial or discuss another plea...but he could NOT have been deemed legally guilty of anything without a trial, could he?

I certainly don't recall/haven't read of him being tried in absentia, so if he were to return, it wouldn't be just for sentencing, there'd have to be a new trial or a new plea agreement. Knowing the victim won't cooperate, what can actually happen here?

[slaxx]

apparently he plead guilgty to statutory rape, but fled before sentencing.

[dpiyjrtmfr]

If the victim won't cooperate she will be compelled to testify as a hostile witness.

[WhatWouldJesusBomb]

A plea agreement is a contract between the prosecutor's office and the defendant. It is not binding on the court. Typically, the court makes this clear to a defendant before accepting his or her guilty plea. The court will tell the defendant that it is not bound by the plea agreement, that it may reject from the agreed-upon sentence, and that the defendant may not withdraw his or her guilty plea (except in narrow circumstances, such as prosecutorial misconduct).

[WhatWouldJesusBomb]

Here is the official transcript of the plea hearing:

http://www.thesmokinggun.com/archive/years/2009/0928091polanskiplea1.html

He admitted the rape charge (under oath). The court also informed him that it was not bound by the plea agreement.

[j2wade]

"This was apparently sex with a 13-year-old girl to whom Polanski had given champagne and part of a Quaalude."

The 13-year-old girl was drugged and repeatedly asked him to stop. Which means it was not sex. It was rape. Please don't further the media's habit of pretending that rape=sex. It is not "very serious harm". It is rape.

[cgde]

I agree, and am a bit surprised that a UCLA law professor would write about a case and not read the grand jury testimony of the girl. Throughout the evening she asked to be taken home, even pretending that she was having problems with asthma and needed medication from her home. She said no throughout the encounter. This was rape. If she was 43, this would still have been rape.

[JTHC75]

I think he's being careful when he says "apparently" because the part about forcible rape is only in the victim's testimony. She may or may not have been telling the truth, but that was never evaluated in trial by a jury. Polanski admits to certain details, but still claims it was consensual.

[sallythewerewolf]

Hear, hear! This WAS the "forcible rape of a child".

[Schmeckly]

Not according to Whoopie who said it was not rape just rape....I am still doubled over for that insightful comment.