Sex, Drugs and Roman Polanski

[2 articles]

Sex, Drugs and Roman Polanski

http://www.truthdig.com/arts_culture/item/sex_drugs_and_roman_polanski_20100713/

Jul 13, 2010
By David Coleman

Should a crime be viewed through a lens adjusted to the era during
which the crime was committed­or viewed through a lens conformed to a
later time, after social values and laws have changed?

This seems like an easy question to answer when the adjustment in the
view of the crime's seriousness is downward.

Take, for example, marijuana. Thirty years ago, possession of
marijuana in California was punishable by a sentence to state prison.
That was a sentence sometimes­even if infrequently­imposed. People
who possessed marijuana for personal use in the '70s were sent off to
prison to serve "hard time" in comparison to a probationary, local
county jail sentence.

Today, of course, one cannot be sentenced to prison in California for
possessing marijuana for personal use. Indeed, since the passage of
Proposition 36, a marijuana user cannot be sentenced to a day in
jail. A fine of $100 is the maximum punishment. And if enough voters
in California express a preference in November to legalize possession
of marijuana, no punishment whatsoever will be exacted.

Now, test your opinion about bringing Roman Polanski to further
justice with this mind experiment: Imagine that his doppelganger,
let's call him Truman Polanski, was arrested and an old, outstanding
arrest warrant was found. Lo and behold, assume it was discovered
that Truman had not served his prison sentence for a conviction of
marijuana possession imposed 40 years ago!

Would the public, would the Los Angeles district attorney, would
conservative law-and-order advocates argue that Truman Polanski
should serve a prison term for the drug crime he committed­but has
not as yet been punished for­under the law as it existed in 1978?

I think you know what the answer would be. And that answer frames the
Polanski sentencing problem.

The 34-year-old lens through which we view Roman Polanski's crime is
clouded because society's viewpoint about his "sex crime" has swung
in the opposite direction from that of a drug crime. Standards for
evaluating whether sex occurred consensually have evolved in the past
four decades on campus, in the workplace and in the law.

Even the language employed to discuss serious crime has changed.
Despite the fact that the same office he now heads agreed to a plea
of a charge of having underage sex, or statutory rape as it was then
called, Los Angeles District Attorney Steve Cooley now describes the
case as one where, "Mr. Polanski [was] … convicted of serious child
sex charges."

Really, Mr. Cooley? That does not appear to have been the view of
your office in 1978. The Los Angeles district attorney's office
agreed to a plea deal then that probably would result in a
probationary sentence for what Cooley now calls a "serious child sex"
offense.

The facts of the case haven't changed. But attitudes, language and
the politics of crime have escalated quite drastically when a sexual
offense is involved. Thus, the question remains: If society's view of
the crime changes, should the offender be punished under the new,
more condemning view or the more tolerant one prevalent at the time
of the crime?

What would have happened in 1978 in adjudication of Polanski's case?

I was a new deputy public defender in a Northern California county in
1978 when Polanski was charged. I have recently read the police
reports, including that of a Sgt. Phillip VanAtter, who was last
heard from as the investigating detective in the O.J. Simpson case
and who, Zelig-like, seems to crop up in every notorious West Los
Angeles crime investigation.

On the one hand, based on the facts from that investigation that the
prosecutor could prove beyond a reasonable doubt, sex with an
underage girl (aka statutory rape) would have been a slam dunk. On
the other hand, what about sex with a precocious teenager in Jack
Nicholson's hot tub when the girl's mother had encouraged Polanski to
use her daughter for a risqué photo shoot? Based on any theory of
criminal liability­other than that it was a crime to have sex with a
girl of her age­it was far from a slam dunk. A trial would have
produced the exact outcome the DA obtained by agreement: a conviction
on the underage sex charge and nothing more. Everyone, including the
DA and the judge, would have shared that opinion.

What role did Polanski's celebrity play then?

An indigent public defender client with no sex offense record would
most likely not have been sent to prison on an underage sex
conviction plea in 1978. Need I say that an award-winning Hollywood
director­who barely escaped the Holocaust and whose pregnant wife,
Sharon Tate, was slain in the Hollywood Hills by the Manson family­is
far from the profile of a defendant who would have been sent to
prison in 1978 for the crime of statutory rape?

Based on 35 years of experience as a California criminal defense
attorney, my professionally educated guess is that the agreement
between the judge, the deputy DA and defense counsel for Polanski was
that he was only going to prison for a 90-day diagnostic observation
period. In that era, the 90-day diagnostic was used by judges (and
acceded to by prosecution and defense) to give a defendant a
two-to-three-month "taste of steel," in the criminal justice argot of
the day.

But all criminal justice lawyers and judges knew that a more
important reason for such a sentencing step was to convey to the
public (and the defendant to some degree) that a prison sentence
might be imposed. The strong expectation of all involved was usually
that in 90 days, upon returning to court, the defendant's real
sentence would be a shorter county jail sentence with credit for the
time served in custody during the diagnostic observation period.

Polanski's lawyer had the resources to propose a "local diagnostic"
carried out by doctors and experts in Los Angeles while he remained
free. That step could have been taken­in lieu of shunting him off to
prison­if there was really any need was for diagnostic, psychological
review to justify (i.e. furnish "expert" cover for) not punishing
Polanski as a potentially recidivist sex offender. But it wasn't. No
new information or insight was expected. Unsurprisingly, none
materialized during the prison observation period.

The real need was for it to appear to the public that the judge and
the DA were dealing sternly with Polanski. Undoubtedly, Polanski's
counsel told him­and he had every right to believe­that the 90-day
diagnostic was almost certainly for appearances' sake and he would
most likely receive credit for the time it took, combined with a
sentence of probation after the diagnostic period in prison custody
ended. If that was not the expectation of Polanski and his attorney,
there was little reason for him to have agreed to the guilty plea to
statutory rape he entered.

Having fled, does Polanski deserve the benefit of that retro sentence?

This is a different question. This question is whether the act of
fleeing itself should be punished.

If it should be punished, it should (and could) be charged as a
distinct and different crime from the underage sex charge. The L.A.
district attorney or federal authorities can prosecute Polanski for
this separate crime of failing to appear or other crimes relating to
persons who flee the jurisdiction of state or federal authorities.

But the offense of fleeing should not be conflated with the cries for
Polanski's scalp that emanate from the victim's rights advocates and
from those groups that advocate harsher treatment for any offender
who commits an offense related to sex. Despite their purported
victim-centric viewpoint, they overlook the inconvenient truth that
the "victim" in the Polanski case does not wish to be dragged into an
advocacy group's agenda. When a convicted offender flees the
jurisdiction, the "victim" is the state.

That, to be sure, is not the victim they have in mind.

The renewed focus on Roman Polanski's immorality and karma also ought
not obscure something about this case that may be fishy in
California's system of justice.

The smell may have reached Switzerland, reading between the lines of
news reports of the decision.

Over the past three decades, pursuit of the extradition of Roman
Polanski by the Los Angeles district attorney could at best be
described as fitful. Predecessors of the current district attorney
seemed to have taken the case somewhat less seriously, an observation
quite apparent to the Swiss decision-makers. Whether Mr. Cooley's
imminent run as the Republican candidate for California attorney
general is a factor is something that only Cooley and his staff would
know. If it is, they are unlikely to say so.

Despite today's fulminations by the L.A. district attorney and the
U.S. State Department, the behavior of both prosecutors and of a now
deceased judge of the Superior Court of Los Angeles has created
questions about the administration of justice. There has been no
coherent explanation by a series of deputy district attorneys
associated with the case in 1978 about what was said privately (or
not said) to the judge who would sentence Polanski. Those questions
should have been resolved years ago. Or better yet, they should have
never arisen in the first place.

The need for justice to be administered equally and transparently has
not changed with the times. In 1978, or now, the behavior and
contradictory statements of many of the public officials involved in
the adjudication of Polanski's case created questions other than the
ones about the prurient Polanski behavior upon which the public and
the media are fixated.

Those questions are sleeping dogs. Prosecutors and judges in the
courts of Los Angeles County may take some solace from the decision
not to extradite Polanski. Switzerland­the home of the St.
Bernard­has given those officials room to let those dogs lie.

--------

Polanski and Unmitigated Gall

http://www.truthdig.com/report/item/polanski_and_unmitigated_gall_20100712/

Jul 12, 2010
By Eugene Robinson

For Roman Polanski, the long, unspeakable nightmare of being confined
to his three-story chalet in Gstaad, the luxury resort in the Swiss
Alps, is finally over. The fugitive director is free once again to
stroll into town, have a nice meal, maybe do a little shopping at the
local Cartier, Hermes or Louis Vuitton boutiques.

Or he could just scurry like a rat into France or Poland, the two
countries where he has citizenship­and where authorities have a long
history of acting as if Polanski's celebrity and talent somehow
negate his sexual brutalization of a 13-year-old girl.

I'm betting on the rodent option, even though Swiss authorities are
doing their best to convince Polanski that he can relax and enjoy the
fondue without ever having to answer for his crimes. After all, they
did force him to wear an electronic ankle bracelet for several whole
months. The horror. The horror. After authorities announced Monday
that they were denying the U.S. request to have Polanski extradited,
one of the famed auteur's lawyers called the decision "an enormous
satisfaction and a great relief after the pain suffered by Roman
Polanski and his family." That statement should stand as the
definitive textbook example of unmitigated gall.

Anyone tempted to feel Polanski's pain should take a closer look at
the case. In 1977, when he was 43, Polanski lured a 13-year-old girl
to a house in the Hollywood Hills owned by Jack Nicholson­the actor
was not home at the time­and plied her with drugs and champagne
before having sex with her.

Polanski and his lawyers claimed that the sex was consensual. That's
absurd as a legal argument, since the girl was too young to give her
consent. But the girl's grand jury testimony makes clear that this
was anything but a no-fault romp. She testified that Polanski, on the
ruse of photographing her and wanting to make her a star, convinced
her to pose nude and then assaulted her.

She testified that Polanski raped and sodomized her, against her
will, and that she was distraught before, during and after the act.
The director was indicted on six felony charges, including rape by
use of drugs and child molestation, but was allowed to plead guilty
to one count of unlawful sexual intercourse. Polanski, who spent
about a month and a half in jail, thought he had a deal that would
get him off with nothing worse than 90 days in confinement under
psychiatric observation. But when the judge had second thoughts about
going through with such a lenient deal, Polanski fled. He has been on
the lam ever since.

Polanski is a great filmmaker, and his Hollywood friends and
supporters have blithely taken the position that his genius outweighs
his crimes. Whoopi Goldberg opined last year that what happened
between Polanski and the child "wasn't rape-rape." More than 100
movie-business luminaries­including Martin Scorsese, Mike Nichols,
Harvey Weinstein and, yes, the inappropriately libidinous Woody
Allen­signed a petition asking Swiss authorities to set Polanski
free. I hope they're satisfied now that their prayers have been answered.

The decision by Switzerland to release the artist from his gilded
cage was based on a technicality. The issue was "not about deciding
whether he is guilty or not guilty," Justice Minister Eveline
Widmer-Schlumpf said. She's right; Polanski is guilty by his own
admission. What the Swiss have decided is that despite admitting his
crimes and fleeing from U.S. justice, Polanski will never have to be punished.

It's relevant that Polanski has never shown remorse. He claimed in a
1979 interview that he was being hounded because "everyone wants to
[have sex with] young girls." It's irrelevant that the victim, now a
middle-aged woman, has no interest in pursuing the case and reliving
a traumatic episode. What matters is what Polanski admitted doing to
her 33 years ago­and the fact that Polanski decided to run away
rather than face the music.

Swiss officials noted the obvious: that Polanski never would have
visited Switzerland if he had thought he was putting himself in legal
jeopardy. Since he's not a legitimate candidate for kidnapping and
rendition by the CIA, he's now home free­unless he somehow makes
another mistake. He'll always have to look over his shoulder.

That's punishment of a sort, but not nearly enough. How about this:
As long as he steers clear of U.S. justice, why don't we steer clear
of his movies?
--

Eugene Robinson's e-mail address is eugenerobinson(at)washpost.com.

.