Robert Halford made a compelling point yesterday, which I will rephrase as a question:  given that the absolute best thing that we can say about Roman Polanski’s conduct is that he raped a drugged and drunk thirteen-year-old and that grand jury testimony by design is one-sided, why should we even bother considering it?  What he’s done is bad enough and the jerk should be in prison, runs the argument, and what he might have done is speculative enough, that the prudent thing to do should be to focus on the agreed upon facts lest speculation become a distraction.

I disagree.  While we can’t know what the facts are with a high degree of certainty, I think that knowing what the grand jury testimony said, and that although the victim forgives him, she has not recanted her claims, is highly relevant to how we think about this case.  My reasoning, such as it is, after the jump:

Here are three general principles that I think are underlying some of this conversation.

  1. Of what one is legally convicted and of what one is morally guilty generally come apart. OJ Simpson was found not guilty of murdering his wife.  I think he did it and wouldn’t recommending dating him.  Corey Maye was found guilty.  I think he didn’t do it.   I don’t think Willingham set fire to his house to kill his kids, and I think it was wrong to execute him for it.  John Yoo is never going to face trial, yet we’re pretty confident he did very, very bad things.  You get the idea.  We generally accept that the criminal justice system is not perfect, and while we agree as a society that we should abide by what it’s determined or work within the system to fix it, we often question whether the legal result matched our moral intuitions, which means that a legal conviction is at best a rough guide to moral guilt.
  2. Plea bargains make the distinction between legal and moral guilt even more salient.  A plea bargain is when one pleas to a lesser crime or crimes than were believed to have been committed in exchange for some leniency, meaning that the crime that’s recorded and the punishment is received might not match our intuitive sense of what is done.   I should stress that I don’t think that if one pleads legally to a lesser crime as part of a deal one is automatically pleading morally to a more serious crime; quite the opposite in many, many cases.  Nor is the strength of sentence a reliable guide to what the law considers a serious crime, given judicial discretion. My only point is that we can’t use what Polanski plead to as a perfect guide to the severity of his crime, and that there’s nothing particularly unusual about this case.
  3. Statutory rape is often presented as a case in which someone is morally innocent but unfairly legally guilty. Neddy’s covered this well, to which I’d add that most of the media attention on statutory rape focuses on Romeo-and-Juliet or near Romeo-and-Juliet types of cases, where someone’s life has been ruined because of an act that most of us would describe as consensual-but-for-the-law.  We think it’s bizarre and horribly wrong that a 19-year-old guy (say) who has consensual sex with his 16-year-old girlfriend now has to register as a sex offender because of the seemingly arbitrary laws of one state.  As a result, when many people hear “statutory rape”, they hear “I’ll need more information before I decide whether the perpetrator is a bad guy” or “not a real rape, where someone was forced, just a technical one.”

All three of these principles explain what’s going on with Polanski’s defenders.  (LGM has a good round-up of both sides here.) They hear “statutory rape”, and a plea agreement that maybe had some judicial shadiness (it’s not clear to me that this is anything but an assertion), and they conclude from that that whatever happened, it wasn’t a big deal, and surely it’s the sort of crime that can be overridden by being an excellent dinner guest, or having had a truly horrific past, or making some well-known movies, or being the appropriate sort of rich guy, or having had to live in Europe.  (It’s not my fault their arguments aren’t sense-making.) There’s a documentary that paints his story very sympathetically.

This is why the grand jury testimony is fair game.  The context is such that pointing to what he actually plead isn’t thought to be sufficient to establish that it’s a crime worth pursuing.  The grand jury testimony, while it can’t be treated as settled fact, shows us where on the continuum of the things that count as statutory rape the original charge was.  The thirteen-year-old’s testimony did not, for example, describe the encounter as consensual or sober, or as something that was a lot of fun and she’s really sorry Mr. Polanski’s in all this trouble.  Far from it.  While she now forgives him, she’s telling the same story thirty years later.  And his response, while it denies that she said no, doesn’t deny that she was drunk or drugged, or claim that she was enthusiastic.

So, no, in a broader context where people are denying that legal guilt means anything important, as we often do when considering cases and especially in cases of statutory rape, I don’t think it’s unfair to consider the grand jury testimony at all.

Another thing that is maddening about Polanski’s defenders is that their arguments seem all too familiar.   Are you sure?  You were drunk.  Maybe he didn’t hear you say ‘no’.  You were flirting with him earlier in the evening.  You’ve had sex at parties before. What were you wearing?  Did you give him any indication that you were interested?  Are you sure?  It’s not like he hit you or anything, right?  You didn’t scream. You know, he’s a nice young man from a good family.. this allegation could ruin his lifeHe wants to go to medical school. He’s a good guy.   Are you sure? It’s similar to the questioning any acquaintance rape victim might face from others or ask of herself, with a side dose of well, she had a pushy stage mom.

And we allow ourselves to think, well, these college acquaintance rape cases are tough (which they are), and maybe if the case had been really clear, people wouldn’t be so quick to give him the benefit of the doubt because he seems like one of us..

it’s not like he raped a child or anything… Oh, look, space monkeys…