Saletan and Polanski

>> Thursday, October 15, 2009

Though alerted by both emailers and commenters about this, I was hoping to avoid it. But then, via Patterico (who deals with it well enough), I saw the followup, and...they pull me back in. First, let's consider this, when Saletan responds to commenters who noted the fact that he completely ignored the fact that the sex in the Polanski case doesn't seem to have been even nominally consensual:

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.
Even leaving aside the fact that in context at best removing her underwear represented consent to nude photography rather than sexual intercourse, this really isn't a very complicated question either legally or morally. If she repeatedly said "no" to having sex with Polanski subsequent to removing her underwear, he was obligated to stop, and if he didn't it's rape. Period. If her testimony is accurate, there can be no question that Polanski was guilty of sexual assault irrespective of the victim's age.

Then there's this:

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.
A couple points:

  • Polanski, given the credible evidence that he was guilty of sexual assault, did not receive anything remotely resembling a stiff sentence. Even had the judge set aside the informal agreement, he did not seem at risk for serving anything more than 90 days.
  • It is true that California made a plea agreement to a lesser offense. Although the sentence was far too lenient, given the context (no rape shield law, and a not-coincidentally reluctant-to-testify victim) I'm not inclined to second-guess the decision without knowing more, and pleading to lesser offenses that the defendant concedes to is banal. But since nobody is saying that Polanski should be re-tried, that's not the issue. Rather, what's going on is that Polanski's apologists are arguing that the director should be given special treatment. If a normal person skipped out on a plea agreement, nobody would find his arrest unusual or claim that his going to jail was unjust. Surely, the victim's credible testimony under oath that she was sexually assaulted is relevant to determining whether Polanski should not have to face consequences that virtually anyone else in his position would have to, even if the state of California is formally obligated to treat him as if he was guilty only of statutory rape.

Update (Paul): Like Scott I also hate to get pulled back into this, but it's appalling that Saletan treats statutory rape in this context as significantly different from forcible rape. Obviously statuory rape creates difficult line-drawing problems, but it's hard to believe that many people find the idea of a 45-year-old man having sex with a 13-year-old girl to be anywhere near such lines. Even leaving aside the fact that the victim was intoxicated, Saletan's reference to the victim as a "teenager" obscures this. Would he be making the same argument if she had been 12? 12 is a lot closer to 13 for these purposes than 13 is to 17 or 16, and not just mathematically speaking.


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