Saletan on Polanski: “Failing to regulate a natural attraction”

William Saletan thinks that pedophilia is sick but that wanting to have sex with pubescent girls is “natural,” and therefore not as wrong. This makes no sense.

Aside from the prurient interest, the Polanski case is fascinating because of the sheer dunderheadedness it brings out in Polanski’s defenders.   The man took a thirteen-year-old girl whose mother was trying to make a career for her as a model, offered to take photos of her, asked her to take her clothing off, gave her drugs, and repeatedly had sex with her (that much is conceded) over her protest (according to the victim’s account).  There’s really nothing to say in his defense that isn’t nonsense.   And a depressing number of people seem to be willing to show how liberated or subtle-minded they are by spouting such nonsense.

I understand why the Hollywood crowd is rallying around one of their own*, though in doing so they confirm all the charges the right wing throws at them and thereby toss away influence that might have been used in a better cause.  But what’s William Saletan’s excuse?  He put up two posts on the topic on successive days, one even dumber than the other.

Saletan, while he’d like “to punch the guy in the mouth,” thinks it would be wrong to punish Polanski as a pedophile.  After all, says Saletan, diddling little children is sick, but doing it with pubescent girls is understandable:

Having sex at 13 is a bad idea. But if you’re pubescent, it might be, in part, your bad idea. Having sex with a 13-year-old, when you’re 40, is scummy. (Personally, I’d be stricter. If I ran a college, I’d discipline professors for sleeping with freshmen.) But it doesn’t necessarily make you the kind of predator who has to be locked up. A guy who goes after 5-year-old girls is deeply pathological. A guy who goes after a womanly body that happens to be 13 years old is failing to regulate a natural attraction. That doesn’t excuse him. But it does justify treating him differently.

Huh?  I’m sorry, but this is gibberish.  What is it about the “naturalness” of the attraction that makes acting on it less morally culpable?   In terms of sheer culpability, you might flip it around:  it’s easier to feel sorry for the poor guy whose “deeply pathological” nature means that only gets turned on by little children than it is for someone who simply gives in to a temptation he might easily have resisted, since the world is full of people he desires and can have sex with on the right side of the law.  In terms of deterrence, it’s more important to deter harmful behavior that more people might want to engage in.

Is there evidence that a man who gets caught once having sex with a pubescent girl is less likely to do so again than a man who gets caught once having sex with a pre-teen? I’m not aware of any.   So why is it less urgent to lock up someone like Polanski?  Surely it can’t count as a moral argument that Saletan feels empathy for Polanski, as he wouldn’t for what he thinks of as a “real” child molester, because Saletan might have felt the same temptation.    By that standard, we shouldn’t punish poor Bernie Madoff too harshly, because it’s “natural” to want money.

The only premise that would fill in Saletan’s argument is that it’s not that bad for a 13-year-old girl to be molested by a 40-year-old man.   I suppose Saletan is entitled to his opinion on that point.  But his opinion isn’t the law.

The law makes what Polanski admitted to doing – having sex with a minor – a very serious crime.   Though he was clearly guilty of statutory rape (since the girl was under the age where her consent, even if she gave it, would have any validity) and rape-by-drugs, and very likely guilty of straight-up rape, Polanski was allowed to plead to a lesser but still very serious charge of having sex with a minor (which could have applied to sex with somewhat older girl but still below the age of consent) to spare the victim the trauma of having to testify.

Polanski then took advantage of the fact that sex with a minor is not a crime in France [see comment for corrective details], and therefore someone convicted of that crime can’t be extradited from France, to skip out on his sentencing, after getting word that the judge might not give him the slap on the wrist he thought he’d bargained for.

Saletan thinks that the 1970s, when a judge might have cut someone like Polanski some slack, were simply capable of finer moral distinctions than we Puritanical moderns can handle.  Well, I suppose that’s one way to think about it.  Maybe so.  Whatever distinction Saletan thinks he’s making is certainly too subtle for me.

*  Though I’m glad to see one of my favorite starlets isn’t having any.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

76 thoughts on “Saletan on Polanski: “Failing to regulate a natural attraction””

  1. Saletan, as anyone who reads his writings on abortion knows, is something of a moral moron. He's an excellent example of the dangers of free-range moralizing without any skill or training in the matter, and is almost never worth reading.

    To my mind the definitive statement on the case can be found here:

    http://www.thenation.com/doc/20091026/trillin

  2. Slate is a nest of contrarianism, a poser look-at-me-I'm-so-cute-and-brave stance, where somebody pretends to be brave and clever by afflicting the afflicted and comforting the cofortable. Kinsley brought this in from the beginning, from TNR (which was and is owned by a flat-out whackjob, Peretz). Frankly, anybody who edited TNR under Peretz is deeply flawed; normal people didn't get positions of responsibility there.

  3. I agree with Mark Kleiman's criticism of Saletan's position, and I would in no way minimize Polanski's crime. Yet I have mixed feelings about imprisoning him 31 years later, at age 76, when the victim asks that the case not be reopened. I would agree that fleeing the jurisdiction and not getting caught for a long period of time does not entitle Polanski to any rights; he has no grounds to complain about being imprisoned now. Yet, perhaps (and I emphasize "perhaps"), the government, in the exercise of its discretion, might write this one off. And I think that it might have if Polanski were not so famous; to that extent only do I believe that his Hollywood supporters might have a point (although that does not seem to be the point that they are making; they are, instead, minimizing his crime).

  4. Henry: isn't this what the pardon power is for? More than prosecutorial discretion? It's a pity that pardons have become rare, as politicians prefer to be seen as "tough on crime" even when mercy is called for.

  5. Polanski then took advantage of the fact that sex with a minor is not a crime in France, and therefore someone convicted of that crime can’t be extradited from France, to skip out on his sentencing, after getting word that the judge might not give him the slap on the wrist he thought he’d bargained for.

    In the interest of nitpickery, that's not quite right. Sex with a minor is an offense in France, and was a "crime" (in the French sense) at the time – it was "decriminalized" (reclassified from "crime" to "delit") inm 1982.

    However, statutory rape was not included in the US-France extradition treaty. Which, of course, gave France a convenient excuse to refuse to extradite one of its celebrated intellectuals.

  6. Henry: regardless of the victim's desire to close the case, a crime is not just an offense against the victim but an offense against the State. Also, "flight to avoid prosecution" is a crime in and of itself.

  7. Seth: I was aware of both your points. They are legal points, and my argument was not that Polanski has any legal case, but that perhaps the government should not enforce its case against him.

  8. Henry:

    The government (mostly) wasn't enforcing his case against him. Polanski's lawyers filed a motion demanding the the government enforce its case or drop it entirely.

    What bugs me about Saletan's maunderings is that the question of consent (whose non-existence is pretty well established when you give your victim alcohol and a depressant, and she still reports protesting) doesn't seem to enter into it. Legally, Polanski had sex with a minor, but morally — the arena Saletan gets into once he starts in on "natural attraction" — he committed rape. And most people aren't willing to characterize rape as something that might just merit a speeding ticket.

    (From Saletan's other writings on sexual matters, one might get the idea that he's of the large contingent who want Polanski to be "exonerated" because doing otherwise would call into question the entire culture of coerced sexual availability of young women.)

  9. Paul,

    Well, that was a dumb thing for Polanski and his lawyers to do. He had it pretty good, except, as Calvin Trillin said, he'll never get to see the Lakers. Thanks to Matt (second response in this thread) for the link to Trillin.

  10. I should add that the 1982 reclassification was not the last word on the subject: the French can be pretty hard-assed about sex crimes, too. But that's getting way OT.

    As a more on-topic comment, the accusations (and the victim's grand jury testimony) would have supported extradition becuase the treaty did cover rape, and included abuse of a position of authority as an aggravating factor.

    And I think the rest of your post is spot on: solid prosecution case, serious harm, plea bargain (as I understand, to protect the victim from nasty defensive tactics), and then flight to avoid enforcement? Jail.

  11. I was pubescent at the age of 12 when the first of what would become a string of three adults sexually molested me. Salatan is certainly right about one thing, at the time, as a 12-17 year old boy I was curious about sex and when it was offered to me by an adult I trusted (music teacher, church pastor, camp counselor) I did make a decision to participate, repeatedly. The same is true for the drugs they offered me. Alcohol, pot, nitrate inhalents, cig’s etc

    But as the child in the coupling, it was not my decision to make. The burden of making adult choices falls squarely with the adults. It is simply not a good idea for teenage humans to have sex with adults 20 or 30 years their elders. It also happens to be illegal. I was sexually precocious, and experimented with a half dozen or more other kids of my own age group at an early age, none of which traumatizes me as an adult today because I understand that to be a natural curiosity. I live with the trauma of these events with adults everyday of my life, because I understand as an adult today, just how terrible wrong those other adults were in their choices.

    I think it entirely possible, if utterly unlikely, that we could choose to become a society which considers it the norm for such sexual interaction between adults and pubescent children to occur. If we were that society, perhaps I would not be traumatized by what happened in my youth.

    But we are not. And I am. And that is why Polanski has to be held accountable for his actions. He was the adult, operating under the existing social norms, who decided to take actions that had a high potential to leave the child involved traumatized.

    In this case we have the twist that the child involved says as an adult that she would prefer that her molester not be prosecuted at this time. Speaking as a fellow victim of molestation as a pubescent teen I have to support the notion that it is the victim’s wishes in their own adulthood that justice should direct us to respect. Unless we know that this particular offender is serial, an all that goes with that tangential issue.

    I know the whereabouts of the music teacher who began touching me inappropriately at the age of 12 and whom finally crossed the line into full molestation when I was 16-17. He has even had the nerve to send me a friend request on Facebook. But the trauma of seeing him arrested and me having to go to trial to participate in his prosecution is a less attractive option than forgiveness and leaving him out of my life.

    Polanski is guilty of a second crime. He became a fugitive. While it is true that officials had incorrectly allowed the case to go for too long, it still serves justice for him to face the consequences for that act. A just system would take into consideration the life he led as a fugitive (he was not out there knocking over the kwick-e-mart for enough money to feed his ‘jones’, and to the best of my knowledge he did not go on to enjoy a life long occupation as a predator of pubescent girls. This just system would also place value on his unique potential to aid in spreading information. Surely his potential for community service is immense.

    But, were Polanski returned to the US today to face the charge of being a fugitive of the law, our society & ambitious political prosecutors along with the noise machine would whip up such a frenzy that he would be hung out as an ‘example’ and a chance to ‘prove’ that the wealthy get away with different rules than the common man.

    Well none of the three men who molested me ever faced a single penalty for their actions. And I am poor. So don’t worry, there is equity to balance it all out if Roman is allowed to go without some punishment. But it would seem to me that his punishment ought be creative in nature, force him to create commercials about related issues at no pay. Make him do a documentary about the issues at hand without earning any profit from the venture.

  12. Richard Cohen in the Washington Post: "It’s alright with me if Roman Polanski is freed by the Swiss authorities who have detained him at the request of the United States — if first I get a chance to bust him one in the mouth."

    Saletan, from the linked column: "Viscerally, I'd like to punch the guy in the mouth."

    There is nothing that weakens an argument more than this type of pathetic fantasy of righteous vigilante action, especially when it comes from behind a keyboard. As soon as I read a comment like this in a column or comment, I know that I can safely discount anything further from the writer.

  13. And by Saletan's illogic, it would be natural to treat "a guy who goes after a womanly body that happens to be [an adult woman of 32 years]" as "failing to regulate a natural attraction. That doesn’t excuse him. But it does justify treating him differently."

    Whaaaa???? Because a man is naturally attracted to the victim, it's not rape?

  14. Also, Saletan's rationale is just a variation on the "she asked for it" defense. Five-year-old girl? Innocent victim. Thirteen? Beginning to mature sexually — therefore, like all women, the conniving seductresses, not so innocent.

  15. This is tangential at best, as it has nothing to do with Saletan's views, but . . . Over the past 30 years, there were several opportunities for the authorities to do what they recently did — have a European government grab Polanski, demand his extradition. The victim preferred that situation to what now obtains and to what will happen if he's extradited and tried. So my question is who benefits and who is harmed.

  16. What Betsy said.

    Why do people who claim to find Polanski's actions despicable ("I'd punch him in the mouth!") still feel the need to defend him? I don't get it. Why is it a "yes, but …" situation for them? The ones that do, end up like Salentan, at best making complete fools of themselves or, worse, showing themselves to be morally repugnant.

  17. Plus, I love how "failing to regulate a natural attraction" frames the crime as one of omission and not of commission.

    Which is another variation of the "I just couldn't help myself" defense of rape.

  18. I think everyone is asking the wrong question in this Polanski debate. The right question to ask is

    "is this a good use of our law-enforcement resources ?" Because what is anyone hoping to achieve

    by arresting Polanski now ? To deter him from further rapes ? He's a different person now, and

    he's married, and no-one thinks he's likely to repeat what he did 35 years ago. To avenge the victim ?

    She has said it's time to let this go. To deter other rapists ? I'd bet that putting the resources

    into solving more recent crimes would be vastly more effective. To give Polanski what he deserves ?

    But without in any way diminishing his crime, surely we can acknowledge that Polanski suffered the

    brutal murder of his wife and unborn child, and then has had spend half his life exiled from the

    center of the industry he works in. Nothing that happens to Polanski is going to resemble "justice",

    there isn't going to be any neat moral to his life story.

    What he did was awful. But two wrongs don't make a right.

  19. Who benefits and who is harmed? I don't know– think about the Marc Rich case. Do we want rich and powerful people to think that they have a chance to skip out on justice? I suspect that deterring fugitives is a pretty big deal.

    I would also say that the next 13 year old to be sucked into the Hollywood vortex of semi-coercive sex with old creeps who can advance one's career might benefit from even a belated prosecution of Polanski.

    But one more thing to bear in mind is that it isn't as though his 13 year old victim in this case is the only teenage girl that Polanski ever preyed upon. He immediately took up with 15 year old Nastassja Kinski once he fled to France, and he once gave an interview in which he belittled the whole rape prosecution and said that of course he wants to **** young girls, doesn't everyone?

    So actually, we are pretty much talking about a pedophile here.

  20. I am amazed that this case excites our political and academic establishment while the cases of Americans who tortured people to DEATH

    at Bagram are basically given a pass. Moreover, the important thing about this case at this time is not the crime but the passage of time and the question of whether it should all be opened up again. There are good reasons for statutes of limitation and the fact that there is no statue of limitations applicable here has to do with our fury at this kind of crime. We allow our fury to override the reasons for statues of limitation.

    The desire for revenge is not an ennobling human trait especially when we express ourselves vicariously and not as actual victims. I am reminded of former Nazis hunted down and dragged into court 60 years after their crimes. Often incoherent and approaching death from old age we try them and execute them. Does anybody really feel better after this? I must say, I don't trust people who want to stone Polanski.

    The time for that has passed.

  21. "Do we want rich and powerful people to think that they have a chance to skip out on justice?"

    Personally, I'm vastly keener to see us enforcing our laws against torture and obstruction

    of justice. After 7 years of torture ordered from the White House and carried out by

    government employees, resulting in *many* deaths, I'm much more interested in seeing

    someone brought to trial for that than dredging up the details of a movie director's

    sex life from the early 1970s.

  22. Richard Cownie,

    The deterance isn't to deter Polanski's future criminal activity but to set the example to others that that behavior won't be tolerated no matter how wealthy and famous.

    If the miscreant were a truckdriver I don't think anyone would speak up for him.

    Someone here mentioned a trial. I was of the understanding that Polanski had been covicted and left the country before sentencing.

  23. Richard:

    What Fred said. And in addition, this is not about anybody's "sex life", unless you consider drugging, raping, and sodomizing a 13 year old girl who was placed in your trust and care by her mother falls within your definition of a permissible "sex life".

  24. Richard Cownie:

    I don't think it "wrong" to hold the powerful to something approaching the same standards we demand of the weak.

    The brutal murder occurred before Polanski's crime. Yes, it was terrible. No, it does not so diminish Polanski's culpability that he should be excused after the fact. To argue otherwise implicitly is to argue that any criminal with a tragic history (and there is no shortage) should be given the same treatment. That is a separate discussion, and one that still does little for Polanski: he was not insane, and he already benefitted from a generous plea deal. The fact remains that most victims of circumstance still are required to account for their actions, not given a pass because life is unfair.

    Moreover, his "exile" is entirely self-imposed. Had he not fled in order to avoid punishment, he no longer would be in prison.

    And, Dilan: 15 is (and was, at the time) the age of sexual majority in France. So he may have been a pedophile, but he was a locally-legal pedophile.

  25. TheBadness:

    The point of the Kinski affair isn't that it was legal or illegal in France– it's that California had and has a perfectly reasonable justification for locking this guy up (and short of that, never dropping the charges against the guy) because he has demonstrated repeatedly that he is a pedophile.

    Think of it this way. Suppose a Somali national is convicted of mutilating the genitals of one of his six daughters in California. Then, he skips before he can be sentenced, and in Somalia, where it is presumably legal, he arranges for the mutilation of the genitals of another of his daughters. It seems to me that in that instance, the fact that his conduct might be legal in Somalia is of absolutely no relevance to the issue of how California should treat him.

    Same here. His going on to have a legal relationship with a 15 year old in France still constitutes evidence of the danger that he poses to teenagers in California (especially since he has access to them in the entertainment industry).

  26. "The deterance isn’t to deter Polanski’s future criminal activity but to set the example to others that that behavior won’t be tolerated no matter how wealthy and famous."

    Surely everyone knows that already ? After all, it's not as though Polanski's behavior was "tolerated" in the USA:

    he had to run away and live in exile. Doesn't research indicate that people are far more effectively

    deterred by a high probability of being caught and punished promptly, rather than by a low probability

    of a heavy punishment ? If you thought you'd be caught, you wouldn't do it, right ?

    On the other hand, torturing detainees, often to death, is just A-OK and is not merely

    tolerated, but actually official government policy for years. Go figure.

    "your definition of a permissible “sex life”."

    Of course not. Polanski is f*cked up, no doubt about it. And if you'd locked him

    up back in 1975, then I'd have applauded it. But to try to do it *now* is just stupid

    and pointless.

    And if you get all worked up about the torture statutes in 2045 and try to lock up

    a 90-year-old GW Bush, I'll probably feel the same damn way then. Having the law

    work 35 years behind the times is a sure way to make it look like an ass.

  27. "Same here. His going on to have a legal relationship with a 15 year old in France still

    constitutes evidence of the danger that he poses to teenagers in California

    (especially since he has access to them in the entertainment industry)."

    Well, that's an argument for not letting him back into the USA. And I'm

    fine with that. But it's not an argument for extraditing him: as long

    as he's in France he poses zero threat to teenagers in California.

  28. The point of the Kinski affair isn’t that it was legal or illegal in France– it’s that California had and has a perfectly reasonable justification for locking this guy up (and short of that, never dropping the charges against the guy) because he has demonstrated repeatedly that he is a pedophile.

    It also is probative of his being willing to adjust his pedophilia to fit local legal norms. In a sense, that he "learned his lesson."

    I don't think it necessary or useful to make the case for extradition, because the case is airtight as is.

    And Richard Cowie, unless you're proposing we cease all criminal prosecutions until we own up as a society and prosecute torture by Americans, I don't see how America's double standard regarding atrocities really does much to argue against extraditing Polanski. He did a horrible thing, pled guilty (to a lesster horrible thing, largely in the interest of sparing his victim further hurt), and then ran off. That he had the means to avoid justice does not mean he should be allowed to avoid justice.

  29. "unless you’re proposing we cease all criminal prosecutions until we own up as a society and prosecute torture by Americans"

    I'm saying that a whole lot of crimes go unsolved and criminals go unpunished,

    and that spending a whole lot of resources to extradite and sentence Polanski

    for what he did in 1977 seems like a really poor choice, when the authorities

    have the discretion to accept the perfectly good status quo: Polanski, married

    for 20 years with 2 children, living the rest of his life outside US jurisdiction.

    The particular example of Bush/Cheney's torture policy gives the lie to the

    idea that this is about enforcing respect for the law, or about enforcing

    the law for the rich and powerful. We don't do either of those, even in the

    most egregious cases.

  30. At the risk of diminishing Polanski's crime by mentioning a criminal who makes Polanski look like a model citizen: I thought it was a great day in jurisprudence when a Chilean court found a loophole in the laws giving immunity to Augusto Pinochet, and indicted the former dictator for at least some of the atrocities he was responsible for. Too bad they figured this out five or ten years too late, but hopefully the wheels of justice will grind faster for the next retired war criminal.

    There is a good jusitification for the statute of limitations for all but the most serious of crimes–evidence gets lost, witnesses' memories get fuzzy, etc., and at some point you should just draw a line and tell prosecutors "if you haven't found enough to indict by this date, stop trying". But once the defendant has turned into a convict, those justifications no longer apply. I would much rather be part of a society that tells fugitives "you can run, but you can't hide" than one that tells them "if you keep ahead of the law for thirty years, we will reward your bad behavior by giving up".

  31. The particular example of Bush/Cheney’s torture policy gives the lie to the

    idea that this is about enforcing respect for the law, or about enforcing

    the law for the rich and powerful. We don’t do either of those, even in the

    most egregious cases.

    I don't think we'll come to agreement on this, but suffice it to say that arguing that because A does X without being prosecuted, B should not face the music for doing Y is not one I find very sympathetic.

    And I disagree that the status quo was "perfectly good" : to whit, I think that Polanski should have been extradited a long time ago. He'd have served his time, and moved on. Instead, he got a pass because France had a convenient excuse to avoid extraditing him.

  32. Let me summarize the arguments for extraditing Polanski:

    1) We should lock him up to protect Californian teenagers, who

    otherwise might accidentally fly to France to be molested by him.

    2) We should lock him up to prove that we're always really really serious

    about enforcing the law (if you're a foreigner with an American

    victim, rather than an American with foreign victims).

    "B should not face the music for doing Y"

    My view is that the law doesn't exist in isolation. We don't prosecute

    and punish merely because the law allows it; we have discretion, and

    we should prosecute and punish only when it serves a purpose

    (and at times and with methods that serve such a purpose).

    Punishing Polanski in 1977 would have served many purposes: keeping

    him away from other possible victims, deterring him from future crimes,

    showing others that such crimes will result in prompt punishment.

    Punishing Polanski *now* does none of those things – it just calls attention

    to the ineffectiveness, sluggishness, and stupidity of the criminal

    justice system.

    Punishing Polanski now ? Pointless. It screws up his life (and

    deprives his two children of their father) and does no one any good.

  33. "But once the defendant has turned into a convict, those justifications no longer apply."

    Blah. My understanding is that Polanski's conviction occurred not after a

    lengthy perusal of the evidence, but because he pled guilty after making

    a deal, and then the judge said he wasn't going to stick to the deal.

    Under those circumstances, I don't think you can place much weight on the

    distinction between a suspect and a convict.

  34. Polanski's deal was with the prosecutors, not the judge. The judge always has the discretion to reject a plea bargain that the prosecution has signed off on.

    And in this particular case, nobody is disputing the evidence that Polanski had sex with an underage girl and therefore is guilty in fact of the crime that he pled guilty to as a matter of law.

  35. Surely everyone knows that already ? After all, it’s not as though Polanski’s behavior was “tolerated” in the USA:

    he had to run away and live in exile. Doesn’t research indicate that people are far more effectively

    deterred by a high probability of being caught and punished promptly, rather than by a low probability

    of a heavy punishment ?

    That may be the ideal solution, but the problem is, the fugitive has deliberately through his own actions prevented the ideal scenario from happening. So the next best thing is to come down like a ton of bricks on fugitives so that nobody thinks that their wealth and privilege will be able to buy them a comfortable exile in France.

    Of course not. Polanski is f*cked up, no doubt about it. And if you’d locked him

    up back in 1975, then I’d have applauded it. But to try to do it *now* is just stupid

    and pointless.

    The "point" has been pointed out to you several times– the guy's a pedophile, he's still dangerous, even if he weren't, there's still deterrence value both to other pedophiles in Hollywood and to other wealthy fugitives. You just ignore it.

  36. "You just ignore it"

    I've always though deterrence is vastly overrated. If criminals thought they'd get

    caught, they wouldn't do it. And if they don't think they'll get caught,

    heavy punishments don't make much difference.

    On that view, Polanski *did* get caught. And he *has* been punished, by being

    forced to live in exile. I really don't think any rational person is going to

    look at Polanski's case and think to themselves "ah good, I can go ahead and rape

    a girl and all I'll have to do is go and live abroad for the rest of my life".

    Bringing him back and locking up doesn't seem likely to add much to the deterrent

    value of his case.

    Of course, this assumes that potential criminals are somewhat rational. But

    then the problem of deterring an *irrational* criminal is beyond us: such a

    person is immune to the logic of deterrence.

    If you want to improve deterrence, focus those resources on catching more

    people and applying punishment promptly.

    It seems to me a lot of the argument is "but raping juveniles is really bad,

    look at how much I despise that". Well sure, I despise that too. But locking

    up Polanski now isn't going to do a damn thing to stop it. And when his

    *victim* thinks it's time to let it go, maybe the rest of us should accept

    that as well.

  37. On that view, Polanski *did* get caught. And he *has* been punished, by being

    forced to live in exile. I really don’t think any rational person is going to

    look at Polanski’s case and think to themselves “ah good, I can go ahead and rape

    a girl and all I’ll have to do is go and live abroad for the rest of my life”.

    That's not really it. It's rather that a wealthy and powerful person who is engaged in shady activities might look at a justice system that catches and punishes other wealthy and powerful people for their misdeeds and say to themselves "I may not be able to get away with things that I thought I would get away with".

    Take the other side of this equation. Do you doubt that in jurisdictions where the powerful and connected routinely escape punishment for misdeeds, there will be LESS deterrence than in jurisdictions where wealth and power does not buy you immunity?

    Further, I think it's really offensive that you pretend that living in comfort and making movies in France, while being repeatedly honored by one's peers, constitutes any sort of a sufficient punishment for sodomizing a child. Really, there's a quite strong argument that he should have gotten life in prison for what he did. The punishment he was going to get– even if the judge did change his mind and back away from the deal– was going to be quite light in relation to the offense.

    He committed a very, very, very serious act, one on the same level or almost the same level as a premeditated murder. Anything short of a pretty long jail sentence should reasonably be seen as leniency, and having to stay in France and not come to America is no punishment at all.

    It seems to me a lot of the argument is “but raping juveniles is really bad,

    look at how much I despise that”. Well sure, I despise that too.

    I get the feeling that you don't really despise this particular incident nearly as much as you should. I wonder if you would feel the same way if it were your daughter.

  38. A number of commenters consider the wishes of the victim to be a factor. There is a problem with this reasoning. If you are consistent about this, all sufficiently rich criminals would be able to pay the victim for happy wishes, and receive a get-out-of-jail-free card. (I think that the girl got a settlement, although Polanski welshed.) And no spouse abuser with a steady paycheck would ever go to jail, if the victim were a low-skill homemaker.

    There are a whole bunch of good reasons why criminal justice is public and are kept very separate from private tort justice. These moral monstrosities are just two of them.

  39. The distinction you find lacking in weight is actually pretty heavy. It's the distinction between being GUILTY and being INNOCENT. The vast majority of those convicted of crimes are convicted after a plea; you seem to think that makes them, somehow, "less guilty." I don't think many people are going to be convinced by such a distinction, unless they also think that this is a special "only for pleading guilty to statutory rape 30 years ago" exception. Which I hope you don't. Seriously, that's the only reason to think the length of time should matter; if you just don't think raping a 13 year old girl is that big a deal.

    As far as the statute of limitations is concerned, nothing distinguishes Polanski from a convict who jumped off the bus taking him to jail after sentencing. Nothing distinguishes Polanski from a convict who grabbed a deputy's pistol and shot his way out of the courtroom seconds before the judge sentenced him. He's a fugitive from justice. Unless you think his crimes are not a big deal (and you are free to argue that), I'd say screw him.

  40. "Further, I think it’s really offensive that you pretend that living in comfort and making movies in France,

    while being repeatedly honored by one’s peers, constitutes any sort of a sufficient punishment for sodomizing a child"

    But punishment isn't a good in itself: punishment is an evil that is sometimes worthwhile for

    its positive side-effects. So I don't see that "sufficient punishment" is a meaningful

    phrase, unless there's some positive goal which *will* be achieved by a certain level

    of punishment, and will *not* be achieved by less. Satisfying the victim might be such

    a goal: but in this case the victim does not favor further punishment, so that's out.

    Deterring the perpetrator from further crimes might be such a goal: but Polanski, now 76,

    and having stayed out of legal trouble for decades, hardly seems likely to repeat the

    crime. Deterring others might be such a goal: but as I said, nobody sane is going to

    look at Polanski's history and think it's a good idea to break that law.

    Actually, I'm pretty skeptical in general of the theory of deterrence in relation to

    crimes that are the result of perverse physical or psychological urges. I can see

    how you might deter a burglar or a drug-dealer or an insider-trader: they're operating

    for economic gain and presumably are weighing risks and consequences rationally.

    But a drug-taker or a rapist are obviously operating under the influence of

    urges which make them irrational. [Aside: no, that doesn't excuse their actions –

    it just means that we need to think carefully about whether our laws and policies

    will have the desired effects on particular kinds of crime].

    "The vast majority of those convicted of crimes are convicted after a plea;

    you seem to think that makes them, somehow, “less guilty.”"

    Not what I said. But really, you're putting Polanski in a situation that Kafka

    would be proud of: he makes a deal with the prosecutor to plead guilty in return

    for a lenient sentence; the judge tears up the deal but keeps the guilty plea;

    and now you're saying we should pursue him 35 years later because of that plea ?

    This makes a mockery of due process.

    And yes, in general I think the plea-bargaining system is quite a mess, not

    that I'm an expert on it.

  41. "I get the feeling that you don’t really despise this particular incident nearly as much as you should.

    I wonder if you would feel the same way if it were your daughter."

    Who's to say how much despising is the right amount ? They used to say that you could never

    get an English jury to convict for bestiality, because half the jury would think it

    was impossible, and the other half would have done it. I'm a lot more interested in

    reading about policies that might actually reduce the amount of sex slavery, pimping,

    prostitution, and rape, than playing some stupid "you don't find this offensive enough"

    game. Bad stuff happens. Beating your chest about how bad it is doesn't help much:

    thinking analytically about laws and policies to make less of it happen is a lot more

    useful IMO. Usually this blog is a good source of that kind of analysis. I'm disappointed

    that doesn't seem to be happening on this particular issue.

  42. I am somewhat puzzled by some of the directions the Commentariat has taken. In particular, Paul and TheBadness appear to be convinced that the prosecution had a solid case. It was nothing of the sort. The only reason we have any sense of what happened is the plea bargain that was never consummated. And even that leaves some questions open.

    There can be absolutely no doubt that Polanski was guilty of statutory rape–it's strict liability and there is no dispute that there was sex. But proving anything from sexual assault to full rape is never an easy proposition. Sure, a 13-year old victim makes the prosecution's job easier because it makes the older man appear that much more wicked, but it does not make the case. Her sexual history (and she had one) would have come in, as would her past drug use. Since the bone of contention in that charge is consent, the defense can throw the kitchen sink in to prove that there was neither coercion nor force involved. The problem for the prosecution with a sexually active minor is that they can't argue that was too young to know what was going on and that she did not know what she was doing until after it happened. This is not the same as the frequent defense attempts of putting the victim on trial–promiscuity is not consent, even if the claim is true. But it does go to credibility. Most 20-somethings think sex with 40-something is creepy, but it's not illegal. So mere creepiness of the offender is not sufficient for a conviction. It was this consideration AND the explicit attempt to protect the victim that went into the prosecution's agreement in the plea bargain. For Polanski's part, statutory rape does not normally carry as harsh a sentence as rape when you don't have both. I suppose, the logic of sentencing in this case is that even though a victim of statutory rape is not a "legally consenting" participant, she could have provided a response that the offender may have interpreted in good (but ill-informed) faith as consent. So seeing two-year probation to two-year imprisonment and anything in between is not uncommon (think, Rob Lowe, Frankie Rodriguez). In this case, the sentence was expected to be two-year probation plus time served (43 days).

    But this is where the other part of the equation comes in–and the part that has not been mentioned in this discussion, and is often left out, in general. The judge effectively sabotaged the case by threatening to ignore the plea bargain. Although it is perfectly legitimate for a judge to overrule prosecution's judgment of appropriate sentence even in a plea-bargain agreement, it is rarely done for a number of procedural and psychological reasons. If a judge is known for changing the terms of the agreement, it discourages others from entering into plea agreements. It increases the costs as the probability of an appeal–something that a plea agreement is meant to avoid–skyrockets. We are not likely to get the full details with strict accuracy, but, given the agreement terms, it is highly unlikely that Polanski would have skipped out merely to avoid probation. This does not excuse his flight, but it does show why the prosecution has been reluctant to go after him for 30 years.

    What bothers me about Saletan's position is that it explicitly endorses Polanski's nudge-and-wink comment in several interviews that he "likes them young". His excuse is "Doesn't everyone?" According to Saletan, the answer is yes. That seems to say more about Saletan than it does about the case. Does Saletan really believe that the desire or teenage flesh is natural and only constructed social opprobrium makes it inappropriate? If so, Saletan is as much a pederast as Polanski is. And, in such a case, his opinion really doesn't matter–he has no credibility. It is possible that this is his crass, inartful way of expressing the fact that there is no hard and fast rule on age of consent–age of consent in states and developed countries ranges from 12 to 17, with frequent (but not obligatory) special provisions for age proximity. Even then, the AoC is supposed to set a threshold between those capable and incapable of offering legal consent (which is why statutory rape also includes physical and mental incapacity, and not just age–e.g., coercing a drugged person to have sex is also prosecutable, no matter the age). This has nothing to do with actual capacity or with psychology–the cut-off is meant to make the court's job easier. If Saletan has a problem with it, he sure found an odd way of expressing it.

    Finally, @James–pardon is quite obviously not a viable option. No executive–state or federal (and it is state, here)–would ever agree to pardon someone who is perceived as pedophile (not quite an accurate term here, as the girl was outside of formal pedophilia age, but it's close enough–and Polanski clearly likes them pubescent but very young). So waiting for a pardon is a losing game. On the other hand, prosecutors have rather wide discretion to pursue or dismiss cases. Judges further have legal obligations, but also discretion to allow a dismissal or not. But the prosecutor's office easily could have settled the case by a formal plea (no contest, perhaps) and an agreement that effectively would have made the past arrangement formal–Polanski would not be extradited, but would have to stay out of the country (so flying into California would not subject him to the original arrest warrant, but would be a violation of the plea agreement). Such an agreement would have made sense as it was already de facto in place. But, it appears, Polanski and his lawyers wanted more–they actually wanted him to be allowed to come back. Once the lawyer claimed that the prosecution has not done anything about the case for 30 years, he simply invited an extradition order. It was a stupid thing to do and, to me, suggests that Polanski still thinks he's done nothing wrong–or, at least, nothing criminal.

  43. "only constructed social opprobrium makes it inappropriate?"

    This seems rather obviously true. First, let's not get fuzzy with

    terms like "teenage flesh": in most states of the USA, it's legal

    to get married at 16 with parental consent, or even younger. Check

    out these summaries at http://www.coolnurse.com/marriage_laws.htm.

    "New Hampshire: A female between the age of 13 and 17 years and a male between

    the age of 14 and 17 years can be married only with the permission of their parent

    (guardian) and a waiver. A female below the age of 13 and a male below the age of 14

    are not allowed to marry under any conditions. If both parties are nonresidents of NH

    and are below the age of 18 they cannot be married in NH under any conditions."

    "Alabama: If either of you are under 18, you will need a certified copy of your birth

    certificate. Both parents must be present with identification, or if you have a legal

    guardian they must be present with a court order and identification. If one or both

    parents are deceased, proper evidence of such must be provided. Individuals under

    the age of 14 may not marry."

    Got that ? In New Hampshire, a 13-year old female can get married. Now explain to

    me again how we as a society find the idea totally abhorrent. It sure doesn't look

    that way when we allow 13-year-olds to get married and our magazines are full of

    Miley Cyrus and the Olsen twins and fashion models who, even if they're really 17,

    are starving themselves to preserve a stick-thin figure (and then being photoshopped

    even further).

    It's not my cup of tea. But look around honestly and you have to admit that the

    USA's culture is positively schizophrenic about the idea of early-teen female

    sexuality. And really about the position of women in society altogether. On

    the one hand, we claim to value women as full members of society with equal rights;

    on the other hand we give Hillary Clinton a hard time about her hair and her

    pantsuits. We pass laws about the age of consent; and then we market cosmetics

    and revealing clothes to 10-year-olds. Polanski is (or was) f*cked up; but he's

    sure as hell not the only one.

    Now I myself think age-of-consent laws are a good thing that promote some very

    good ideas in our culture: that sexual relationships with a big imbalance of

    power are generally harmful, that women should have the chance to grow and

    get educated and participate fully in society without suffering psychological

    harm and STDs and preganancy at an early age, that immature individuals should

    be protected. Those are good goals IMO, but they're not universally held to be

    true, and they're not rooted in human physiology or "nature". Many cultures

    basically treat women as property, to be owned first by their father and

    then by their husband, and have no independent existence at all.

    Anyway maybe the people who purport to be in a big huff about Polanski should

    be trying to rein in the promotion of Miley Cyrus and get changes to the

    marriage law in New Hampshire, rather than chasing down a now-harmless old

    man with a bad attitude.

  44. The question isn't why we would extradite Polanski — the question is, why we shouldn't. Arrest and extradition are the normal responses to flight. That the defendant had the cachet and resources to evade capture for a long time isn't normally a point in his favor. The crime was nontrivial, he pleaded guilty, he was arrested in a third nation with an extradition treaty for the kind of crime he committed. To just let him go subverts the normal order — and you need a compelling reason to do that — like risk of harm to a third party or fear that the defendant would be tortured or executed upon return.

    Polanski can seek mercy from the court that will have to deal with him in California, where all the arguments that have been raised here and elsewhere can certainly be made. I can't think of many if any situations where justice demands that all the arguments get resolved in your favor so that you don't have to even bother to show up and give some proof. Seriously, the degree of favoritism Polanski seeks is shocking — not just a light sentence, as originally demanded, but complete immunity from legal process.

  45. Richard — So, essentially, you are arguing that the widespread oppression of women makes Polanski's act less abhorrent in comparison.

    And, your last paragraph advances the most predictable anti-feminist argument: anyone who cares about women should be off solving all problems of women's oppression before complaining about any one problem of women's oppression.

  46. "So, essentially, you are arguing that the widespread oppression of women

    makes Polanski’s act less abhorrent in comparison"

    No. I'm saying that what matters is not whether Polanski's act was

    "abhorrent", but whether chasing him down *now*, 32 years later,

    will have any positive results that outweigh the very considerable

    costs (not least the cost to his wife and two children, who of

    course bear no blame for his earlier actions).

    In my view, the judgment about what's "abhorrent" or "immoral" or

    "unnatural" or "evil" is one for Polanski's God, if he has one,

    to make. The purpose of the criminal justice system is to help

    the victims and to reduce the frequency of future crime. And chasing

    Polanski *now* offers little or nothing on either of those counts.

    Meanwhile, there are real problems with the way we treat women now

    that we might be able to fix or ameliorate, if we weren't wasting our

    time and effort on the Polanski case.

    Another way of looking at it is to ask "what do we hope to achieve

    when we imprison a criminal ?" We want the victim to feel better;

    we want other potential victims to be protected; we want the criminal

    to be rehabilitated and become a useful law-abiding citizen.

    Well, the victim has forgiven Polanski; he has kept out of trouble

    for 30 years, has been married for the last 20 and is prominent and

    successful in his career. That's what we want; we've won. Declare

    victory and move on.

  47. Really, this whole debate has the same flavor as the arguments before the Iraq War.

    If you thought it was a dumb idea to go invade Iraq, all the Serious People

    would say you were pro-Saddam, or pro-terrorist, or not showing sufficient

    resolve. And that wasn't it at all: it was just a dumb idea. And this is a

    dumb idea, with big costs and no benefits. You spend time and money bringing

    Polanski back; he hires a lot of expensive lawyers to say that the case was

    badly mishandled the first time round (which it very probably was); there's

    a big legal fight and a long-drawn-out appeal; the victim is dragged back into

    the public eye; and most likely at the end of it all Polanski gets a short

    sentence and then is deported (which seems to have been what he feared the

    first time round), essentially getting us back to the status quo.

    It didn't mean Saddam was a good guy. It doesn't mean Polanski is a good guy.

    It's just that sometimes it's better to live with an imperfect outcome than

    to kick up a big fuss that's likely to achieve nothing of value.

    It's a dumb idea.

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