Jim says it all -- or at least 90% of it

[swan_tower]

Fellow author Jim C. Hines has posted on numerous occasions before about rape -- its causes and consequences, our cultural attitudes surrounding it -- based on his experiences as a rape counselor. It's unsurprising, therefore, that he would post about the Polanski situation, and utterly demolish the various defenses on Polanski's behalf.

(He does overlook the Hitler/Manson one. To which we can quote the comment thread: Your own victimhood doesn't give you a right to make somebody else a victim.)

I don't have much to add to that. Only an incomplete thought on what should happen now.

What do we stand to gain by imprisoning the man, or otherwise punishing him? There are three obvious possibilities. One is vengeance: make him suffer because he made someone else suffer. (No, thirty years of gilded exile as a well-respected filmmaker does not count as suffering. Not in my book.) But our justice system is, at least in theory, not about vengeance, and the victim -- the one with the most claim to this angle -- has said she doesn't want it. Another is prevention: lock Polanski up so he can't do this again. We're a bit late, seeing as how he's had thirty years plus in which to do it again, but there's perhaps a faint bit of merit left in this one. The third angle, of course, is deterrence: we lock Polanski up so some other guy (whether a prominent filmmaker or not) will think twice before he drugs and rapes a thirteen-year-old. But it seems to be sadly true that prison-as-deterrence is not nearly so effective as you'd like to think.

I see a fourth angle, though, hiding in the shadow of deterrence, very similar but not quite the same. Call it principle. This is the bit where the community of the United States, and more specifically the state of California, as manifested in its criminal justice system, stands up and says very publicly that THIS IS NOT OKAY.

It is not okay to drug and rape a thirteen-year-old girl, over her continued and consistent protests. Even if you've had a bad life. Even if you thought she was older. Even if her mother shoved the kid at you. Even if you've made some art that people really like. It is also not okay to plead guilty and then flee before your sentencing. Even if you think the judge was going to be harsh. Even if you were afraid of going to jail. And if you do these things, you will suffer consequences.

It isn't just about scaring the criminals off. It's about teaching all the rest of society, all the ones who aren't criminals, that these crimes are something they can and should do something about. It's a lesson I fear too much of society still hasn't learned, where rape is concerned, because we still hear all the usual defenses. She shouldn't have gone there. She shouldn't have trusted him. She shouldn't have been wearing that dress, that makeup, those shoes. And you know, it isn't that big a deal anyway, let's feel some sympathy for the poor guy who raped her, because now he's being blamed for what he did.

When the day comes that somebody like Polanski rapes a thirteen-year-old and nobody says "He thought she was older" as if it would have been okay for him to rape an eighteen-year-old, then I'll feel like we're making progress. And maybe then I'll feel it's okay to show him leniency after thirty years of escaping justice. Maybe. But we're still light-years away from that, apparently.

In the meantime . . . I don't know what's the right punishment here. I find myself wondering what the penalty is for fleeing sentencing after you've pled guilty. It would make a good minimum to start with.

Comments

[mrissa.livejournal.com]

Yah. I mostly don't feel like making my own post about this, because my impulse is not to talk to you lot, but to my adolescent friends. To assure them that they do matter, that I do care, that they are not like Kleenex to be used by people who have cast themselves as more powerful, more talented, more interesting, simply more.

How many high school age boys try to convince their girlfriends or the young women they know that they themselves are brilliant, geniuses, going to turn the world on its ear, going to really change things? If it's okay for one guy because he's supposedly Just That Great, how is it not okay for some guy who's absolutely sure he's going to be Just That Great any minute now? You wouldn't want some whining little slut to stand in the way of his certain future greatness, would you? Would you?

The girls in my life need to live in a world where they never, ever think that someone will cast them as the whining little slut standing in the way of some boy's future greatness. Ever.

[swan-tower.livejournal.com]

YES.

Not just because that isn't a valid excuse for such behavior, but because of what it says about the future greatness (or insignificance) of those girls.

[ckd]

This. In some sense it's deterrence/counterpressure to the cultural forces that make life easier for rapists. (The far too common cultural forces, alas.)

[swan-tower.livejournal.com]

Deterrence will only happen in any measurable strength if all the people around the proto-rapists enforce the message that IT IS NOT OKAY.

[ckd]

Wholeheartedly agreed.

[amysisson.livejournal.com]

I already commented on Jim's post with a "well said", but your post here merits another such comment.

Thank you.

[miintikwa.livejournal.com]

May I link to this? Because you have eloquently stated everything that I was rounding up in my head to state, concisely and clearly.

[swan-tower.livejournal.com]

Feel free. It's a public post, after all.

[miintikwa.livejournal.com]

Thank you. :) I prefer to ask, just to be on the safe side.

[d-c-m.livejournal.com]

It is not okay to drug and rape a thirteen-year-old girl, over her continued and consistent protests. Even if you've had a bad life. Even if you thought she was older. Even if her mother shoved the kid at you. Even if you've made some art that people really like. It is also not okay to plead guilty and then flee before your sentencing.
Yup. Pretty much.

[kurayami-hime.livejournal.com]

Upfront, I don't really know the facts of the case at all. But one thing that's sticking in my head is that the societal standards then and now are very different. Then it was the victim's fault: no doesn't mean no, what was she wearing, did she try to fight, etc were all relevant facts in the case. Hence fixating on age. If you can't prove non-statutory rape because she was wearing a short skirt and didn't fight tooth and nail, all you can do is get the perpetrator on age grounds. Thus a focus on "I didn't know she was 13."

We've come a long way, but we still have a long way to go. I think I just wanted to point out that the same facts then and the same facts now would reach very different outcomes. If he's smart, Polanski won't ask for a retrial.

[swan-tower.livejournal.com]

I'm all for cultural relativism, but not in this case. What he did was a crime, even back then; there were harsher charges they could have pushed for, and the point of his plea bargain was to reduce it down to only the one, statutory rape. And NOTHING excuses people clinging to the same weak excuses thirty years later.

[kurayami-hime.livejournal.com]

I agree. What he did was a crime, and excuses then are even weaker excuses now. My comment was mostly to highlight that there is some amount of culture relativism going on here. Not to support it, just to point out it's existence in relation to the original case.

[mastadge.livejournal.com]

I agree with you, and with Jim, so I do not in any way seek to get Polanski off the hook when I ask: why now? What message does the United States send its people when, having known where he was and having had access to him for years, they've only now finally decided to do anything about it?

I also want to point out that he did not flee, apparently, to avoid sentencing. He fled after the judge's alleged misconduct. If he was not fleeing justice but rather fleeing perverted justice, then I do have a lot more sympathy for him. What could he do? Write a letter to the court saying, "I'll repatriate and submit to trial if you get me a new judge"? When the judicial system is not working right, what can a guilty man do to ensure what he's receiving is justice?

[swan-tower.livejournal.com]

They haven't had access to him for years, as I understand it. He's generally been very careful to avoid countries whose extradition treaties with the U.S. would put him in danger of being sent back. Even to the point of testifying in a UK court via video link -- the first time they ever permitted anyone to do that.

Mind you, the recent documentary may also have something to do with it, in terms of shaming them into action.

When the judicial system is not working right, what can a guilty man do to ensure what he's receiving is justice?

Being not a lawyer, I don't have the technical answer, but I believe there are options that begin with "lawyer up." Even if he had no way of escaping that judge, he could have returned after the man died; instead, he tried to get Espinoza (the new judge) to cut him a deal without Polanski ever setting foot back in the U.S. To which Espinoza told him, politely, that fugitives don't get to dictate the terms of justice -- but that he was welcome to come back and handle it via proper legal channels.

In other words, I don't buy that defense in the slightest.

[kurayami-hime.livejournal.com]

In short, you appeal. And if your first lawyer was a terrible one, you get a new one, and while appealing the first case, go after the old with a malpractice suit (assuming that if he'd been on the ball, whatever you original case's outcome was, it would have been different). Possibly bring an ethics violation against the prosecutor or judge. The problem is knowing the options and having the time and financial means to go after them. And not giving into the deeply ingrained run away impulse, of course.

[swan-tower.livejournal.com]

I'm pretty sure Polanski had the time and financial means.

[kurayami-hime.livejournal.com]

Yes. That said, he'd most likely have been sitting in jail while any appeals happened, which makes running away very appealing. Again, doesn't excuse the behavior, but it does explain it to a certain degree. The running away, not the behavior that landed him in court in the first place.

[swan-tower.livejournal.com]

Gee, wouldn't it be nice if criminals were allowed to avoid punishments they don't like. </sarcasm>

I mean, SERIOUSLY, people. That's what punishment IS.

Question: I saw it said elsewhere that a judge is not actually obligated to abide by the terms of a plea bargain when it comes to sentencing. Is this true?

[kurayami-hime.livejournal.com]

That sounds right to me, but I've not found anything to back that up because I need to go run errands and not research crim law (which I hate, despite it being the best topic for cocktail parties). The plea bargain is between the defense and the prosecutor; the judge is not a party to it. The judge gets final say on how the case finishes, so if, for some reason, he or she thinks the plea bargain is no good, the judge could force the people to go to trial/wait for the jury verdict/whatever. If a judge can reject a jury's verdict, he should extra be able to reject a plea bargain. In either case, I assume it doesn't happen that often because justice is severely constrained where resources are concerned. The sooner a case is out of the courtroom, the sooner the next one gets in.

[swan-tower.livejournal.com]

Found a decent discussion of the legal situation:

http://james-nicoll.livejournal.com/2041602.html?thread=35812098#t35812098

(Fair warning: you'll have to wade through some pretty infuriating attempts by one commenter to say that we don't really know if Polanski's guilty because his guilty plea doesn't mean anything and apparently the stuff that came out before the grand jury doesn't count, or something.)

[zunger.livejournal.com]

Also, another good summary of the legal facts:

http://www.slate.com/id/2229853/

What you thought about the sentencing is right. In fact, a plea agreement never includes an agreement about the sentence; it's an agreement between the prosecutor and the defense, neither of which has the power to decide that. As part of the agreement, the prosecutor may ask the judge for a harsh or lenient sentence, but the judge is under no more obligation to do so than if the prosecutor had asked without an agreement.

[kurayami-hime.livejournal.com]

Judges can and do reject plea bargains: http://www.bangordailynews.com/detail/123088.html

[mastadge.livejournal.com]

They got him in Switzerland. It's been no secret that he's worked and had a home in Switzerland for years. Maybe some extradition thing has changed. I don't know. As with Michael Jackson a few weeks ago, I reached Polanksi saturation early on Day 1 of this circus and have stopped listening to the extent possible. I hope they manage this thing justly, and I hope it happens in as painless and unobtrusive a way as possible for the victim and her family.

[celestinenox]

As far as I'm concered, there is only one point in this whole thing that matters:

Roman Polanski raped a child.

Anyone who tries to argue with me about why we should be lenient with him will receive that sentence over and over again on broken record repeat until they shut up or the message sinks in.

[swan-tower.livejournal.com]

Their arguments pretty much boil down to desperate games of Twister in an attempt to avoid that exact sentence.

[celestinenox]

I've noticed in myself an ability to see through the bullshit and get straight to the point. Can't always articulate it so concisely, but I can see it.

[mindstalk.livejournal.com]

Word.

[jimhines.livejournal.com]

Thank you for this distinction, as it's something I've been trying to sort out in my brain. The situation exists on multiple levels. The personal, between Polanski and the victim, but also the societal, in that it speaks to how we respond to these crimes, how we proclaim what is and is not acceptable behavior. Well said, and thanks.

[swan-tower.livejournal.com]

Thank you for making your post, so I didn't have to. :-) But I was debating the question of "what's to be gained" with my husband last night, and it really kept niggling at me that there was some good to be had by pursuing this. Took me until today to really put it in words, though.

[shveta-thakrar.livejournal.com]

This. Thank you.