Is Roman Polanski a Rapist?

[major_clanger]

I was asked by a friend whether, in my legal opinion, it was accurate to describe Roman Polanski as a rapist, given that what he actually pleaded guilty to was a lesser charge that was in effect that he had consensual sex with an under-age girl. I thought about this, did some more research, and have come to the following conclusions. In particular, I've now had the opportunity to read Polanski's plea transcript, and the letter from the victim's lawyer supporting it:

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

From this it is clear that he definitely admitted sex with a 13-year-old, and knowing at the time that she was 13. The letter from the victim's lawyer is also interesting, as it is evident that the reason her family supported the plea was not that the evidence was weak but that they wanted to avoid the victim being further traumatised by having to give evidence in court. (I don't know what procedural safeguards the Californian courts had 30 years ago regarding cases where there were child witnesses and victims of sex offences. It seems though that all parties here agreed there would be extensive publicity. In the UK now such a case would attract very tight reporting restrictions as well as strict limits on the form and nature of questioning allowed of such a vulnerable witness.)

A further complicating factor is what is meant by 'rape'. In the US at the time, what Polanski undoubtedly did was often termed 'statutory rape'. What he plead guilty to was what in England now we call 'sexual activity with a minor'. However, as I think I've said, I do not see on the evidence presented that the CPS here would not have charged him with rape, mainly because of the evidence that he gave his victim drugs and alcohol (has Polanski ever denied this? I'm not seeing any claims that he has.)

For me, the crucial point that comes out of reading the plea transcript is that it was not irrevocable. The court could still have decided on the basis of the outcome of further investigation to withdraw the plea bargain (bottom of p15 to top of p16). Thus even though Polanski plead guilty to the lesser offence he could still have been prosecuted for the more serious ones. The importance of this is that the legal process did not make a final determination that he was *not* guilty of rape. If it had, then I would have to say that he could never have been found to have committed rape, but that's not the case.

In summary, Polanski admitted sex with a 13 year old, who he knew at the time to be 13, with a number of what in English law at least count as aggravating factors. He has not, so far as I am aware, denied elements of the evidence that raise a very strong presumption that the victim did not consent. The plea bargain was accepted in order to protect the victim, not because of any weakness in the evidence. And it was not a final determination of his innocence of the more serious charges.

In the strictest legal sense, Polanski was never convicted of rape. But then Fred West was never convicted of murder, but nobody doubts that in both moral and practical terms he was a murderer. West cheated justice via suicide; Polanski fled it.

Was he actually convicted of rape? No.

Is he a rapist? Yes. As a descriptive label, rather than a formal legal classification, of him, he is.

Comments

[secretrebel.livejournal.com]

Interesting post. Did you read Kate Harding's article on Salon? Similar topic.

[swisstone.livejournal.com]

It was reading that which prompted my question to MC. Harding was writing as if, by pleading guilty to unlawful sex with a minor, Polanski had effectively admitted that all the testimony laid before the Grand Jury by the victim was true. I wasn't sure that was the case.

[(Anonymous)]

I'm troubled by the number of posters (elsewhere) who seem to be claiming just that: that a plea bargain amounts to an admission of guilt in the more serious charges.

[watervole.livejournal.com]

Thank you for a clear, level-headed, non-emotional assessment of the case.

Most LJ comments have been emotional reactions rather than logical assessments.

[cdave]

I see that this is locked. Can I repost it as an comment (attributed to an anonymous source) on chiller's post?

[major-clanger.livejournal.com]

I'll unlock this post so you can post a link to it.

I reserve the right to relock it if any subsequent discussion becomes uncivilised, although I'll be trusting and assume it won't.

[cdave]

Thanks

[the-maenad.livejournal.com]

Don't worry -- I know Chiller. She's very civilised.

[the-maenad.livejournal.com]

An excellent summary which I endorse fully. The only thing I'd add is a query as to what additional offences he may have committed by fleeing justice in the way he did.

[ciphergoth.livejournal.com]

The only factor that gives me any sympathy for Polanski here is the whole plea bargain thing. They told him he'd walk free if he pled guilty so he did - which means we don't know much about what a court would actually have decided.

If he did what her testimony said he did, then a long jail sentence would be appropriate.

[zotz]

Plea bargaining always strikes me as a very corruptible process. Also, I tend to think that French governments are actually the most villainous party here, for refusing to extradite him for so long.

In response...

[(Anonymous)]

Sympathy for Polanski? He pled guilty because he WAS guilty. And then he fled punishment. The young girl who got raped will never be able to flee the effect that Polanski had on her life.

Plea bargains are reneged all the time, and the judge reserves the right to do so. While it may not be routine, reneging on a plea bargain certainly isn't unheard of. The victim of the rape was so traumatized by the media coverage of the trial (read: further victimization of the rape victim) that she simply wanted the ordeal to end. That doesn't mean she wanted Polanski to flee from justice.

I agree with you that a long jail sentence is appropriate, and I don't mean to insinuate that I think you are trying to defend Polanski, a rapist. However, I simply have zero sympathy for a man who pled guilty to a crime he did commit and then fled when the judge decided to pursue appropriate charges.

[liadnan]

The plea bargain hearing itself (link in the post above) went into detail about what the consequences might be and what was and was not settled and it is perfectly clear from that he was not guaranteed to walk free. Even if inaccurate representations were made to him sub rosa he had the opportunity to retract.

[major-clanger.livejournal.com]

Well, except they didn't. As that transcript makes clear, the plea bargain was revocable by the court depending on the outcome of the assessment to be made of him (in particular, whether he was a pathological sex offender). His plea was akin to what in English law is termed an 'Indication of Plea' and would only have been formally confirmed later. It never was, because he fled, and so he is still legally in limbo.

[swisstone.livejournal.com]

I shall come clean. It was me that asked the question. I should make clear that I'm not trying to defend Polanski, and I'm not going to quarrel with describing Polanski as a rapist. But I think there may be a distinction here between what he was originally charged with (and probably did) and what he admitted to and was convicted of, a distinction which not all commentary is observing. And that distinction I think sheds light on why Whoopi Goldberg can talk about what Polanski did as not being 'rape rape', i.e. not a non-consensual sexual assault, as opposed to statutory rape.

[ms-cataclysm.livejournal.com]

It seems pretty clear that his victim did not consent and that this would still have been rape had she been an adult woman.

I think WG's comments are more a case of taking a friend's side - right or wrong- it is very hard to believe that someone whom you have met and liked has done something appalling -you tend to bend over backwards to give them every possible doubt, even if this means doing an injustice to someone else.

[swisstone.livejournal.com]

It seems pretty clear that his victim did not consent and that this would still have been rape had she been an adult woman.

Indeed. My point is not that he didn't do this, but that (possibly) he hasn't been convicted of doing it.

[andrewducker]

He gave a guilty plea - and was sent for psychiatric evaluation before sentencing. I'm not sure at what point conviction occurs under the US system. I don't even know if a guilty plea can be retracted once you move to the sentencing stage.

[swisstone.livejournal.com]

This is exactly the confusion I'm talking about, between what he was originally charged with, and what he was ultimately convicted of. He was charged with rape, but he was not convicted of that rape charge; he was convicted of the lesser charge of unlawful sex with a minor.

[ms-cataclysm.livejournal.com]

I think it may be more a matter of putting a greater emphasis on what he did rather than the subsequent legal shenanigans. Surely he's a rapist if he did the deed whether he's convicted of it or not ?

[major-clanger.livejournal.com]

Well, part of the problem is that as far as I can see he never was actually convicted of anything, because he fled before the plea bargain could be confirmed. His guilty plea was thus provisional, hence the discussion in that transcript about how he could withdraw it if the court withdrew the plea bargain on the basis of the outcome of the psych assessment of him. In effect, he's in legal limbo, neither convicted nor cleared.

[(Anonymous)]

It troubles me that in much discussion this distinction is not being acknowledged. Nor is the distinction between opinion and fact.

[ms-cataclysm.livejournal.com]

The victim's testimony makes very grim reading indeed.

[redbird]

I have one question, for anyone who is saying that maybe it wasn't rape because Polanski didn't plead guilty to forcing the victim, only [sic] to having sex with a thirteen-year-old who he knew to be thirteen: Has Polanski ever publicly denied raping her? That is, has he ever denied the substance of the accusations: giving her drugs (including alcohol) and pushing her to have sex when she repeatedly said no and tried to leave?

It seems to be that a genuinely innocent man or woman, safely outside the jurisdiction, who had been convicted of something they hadn't done, would say they were innocent. For that matter, most guilty people, if they wanted to be treated with sympathy, would say the same: the accused mugger, bank robber, or murderer doesn't say "it was only one bank," they say "it wasn't me" or that the death was an accident or self-defense.