On Roman Polanski
Roman Polanski raped a child.
Kate Harding starts her article with this important and powerful reminder of what Polanski has done. It is an impassioned and lucidly argued piece on why no one should be above the law, not least Polanski. Rape is rape. There is no issue of consent, because the child’s age makes it statutory rape. In any case, consent had not been given.
But Polanski has his supporters. Patrick Goldstein asks if “at a time when California is shredding the safety net that protects the poor and the unemployed, not to mention the budget of the public school system, you’d hope that L.A. County prosecutors had better things to do than cause an international furor by hounding a film director for a 32-year-old sex crime, especially one that Polanski’s victim wants to put behind her.” In so doing he evokes a most compelling allegory, describing Polanski as a modern day Jean Valjean from the classic “Les Miserables” by Victor Hugo about an ex-convict trying desperately to be a good man but perpetually haunted by tenacious constable. I am not entirely convinced by the Les Mis analogy, not least because Valjean’s crimes were far less disturbing than Polanski’s.
Still, Polanski’s capture has triggered much debate, with the NYT’s Room For Debate Post highlighting the different perspectives. Now, just as there is no doubt as to Polanski’s guilt, let it be said too that there is also no doubt as to Polanski’s brilliance. The Pianist(2002), his powerful, wrenching tale for which Polanski a won Best Director Oscar is a testament to his craft. My personal favourite however, is his “Death and the Maiden” which is one of the most brilliant psychological thrillers i have ever had the chance to watch.
But should brilliance, however great absolve one of wrongdoing? And what of judicial misconduct? Should the fact that the then trial judge intended not to honor the plea bargain reached between Polanski and the Prosecutor be a redeeming factor? And should the victim’s subsequent forgiveness count for anything?
Having recently watched Michael Sandel’s thought provoking classes on ethics in http://justiceharvard.org/, this episode actually pits two competing school of thoughts, that of Consequentialism, which derives its ideas from utilitarianism. The idea is to look at the welfare of society as a whole and decide if it is beneficial. As Robert Harris, someone who does know Polanski questions in this NYT editorial questions:
“He is no threat to the public. The original judicial procedure was undeniably murky. So cui bono, as the Romans used to say — who benefits?”
In short, what is the point of jailing an old man for a crime committed 30 plus years ago when that man can better contribute to society as a director?
In contrast a Deontological approach takes a view that the ends do not justify the means. Again, back to Kate Harding who reminds us that:
“It works on behalf of the people, in fact — the people whose laws in every state make it clear that both child rape and fleeing prosecution are serious crimes. The point is not to keep 76-year-old Polanski off the streets or help his victim feel safe. The point is that drugging and raping a child, then leaving the country before you can be sentenced for it, is behavior our society should not — and at least in theory, does not — tolerate, no matter how famous, wealthy or well-connected you are, no matter how old you were when you finally got caught, no matter what your victim says about it now, no matter how mature she looked at 13, no matter how pushy her mother was, and no matter how many really swell movies you’ve made.”
And so, we are back to a grey area where whether Polanski should be extradited depends really on whether you follow a consequential reasoning or a deontological reasoning. For my part, i do believe that Polanski should be punished for his crimes, but the fact that there was judicial misconduct in the proceedings and the time lag should thereby entitle him to significant reduction in sentence because it is a strong mitigating factor. The victim’s forgiveness is a relevant point to be taken into consideration.
The reason why i believe that judicial misconduct and the failures of due process should either entitle a guilty accused to be acquitted or have his sentence discounted is because the rule of law is itself dependant on the justice system following the rules which it has set. Because of the seriousness of Polanski’s crime, it would be unwise to give a full acquittal, but the lack of due process should entitle him to a discount in sentence. As Justice Louis Brandeis opines in one of the most famous dissents in OLMSTEAD v. U.S., 277 U.S. 438 (1928) :
“Will this court, by sustaining the judgment below, sanction such conduct on the part of the executive? The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. 16 The maxim of unclean hands comes [277 U.S. 438, 484] from courts of equity. 17 But the principle prevails also in courts of law. Its common application is in civil actions between private parties. Where the government is the actor, the reasons for applying it are even more persuasive. Where the remedies invoked are those of the criminal law, the reasons are compelling.
…
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face. “
