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

[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.