Squaring the Culture




"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

09/29/2009 (4:56 pm)

A Little Opportunistic Admonition on the Occasion of the Defense of Roman Polanski

On the whole, I really don’t give a damn what famous people do, except as it affects the central affairs of the culture. I enjoy movies as literature or escape, but I do know the difference between the character in the plot and the actor in front of the camera (not to mention the director behind the camera and the producer behind the project,) and I try not to let my opinion of their loud but usually inconsequential off-screen idiocy affect what I think of the art in front of my face.

That said, the recent arrest of famous movie director Roman Polanski (Rosemary’s Baby, Chinatown) after his having fled sentencing for a statutory rape conviction 30 years ago, followed by the mindless and unfortunate defense of said scumbag by certain media liberals, gives me an excuse to rehearse some of the fundamentals of American legal philosophy, fundamentals about which a truly astonishing number of people are completely clueless. When a case like this hits the public, we hear all sorts of blather from people whose sense of justice has been contorted by noble-sounding phrases they don’t understand any better than a cat understands cosmology. So, here we go, sensible answers to contorted blather:

Blather: The victim has forgiven him, so he should go free.

Nothing could be less relevant. American criminal law is not about obtaining retribution for the victim, nor about protecting the victim, nor anything about the victim. The branch of American law concerning victims obtaining compensation for losses sustained by the acts of others is called “tort law,” and is pursued in civil courts, not criminal courts. In American criminal law, the injured party is society. That’s why criminal trials are always called “the state versus [criminal's name],” or “the county versus [criminal's name],” not “[victim's name] versus [criminal's name].” The criminal is, by virtue of his or her acts, considered to have damaged society by committing acts designated by the legislature as criminal acts, and stands to be punished by society. The victim is important primarily for establishing the fact that a crime has been committed and for furnishing the details of that crime. Consequently, the victim has neither power nor right to stop the state from executing sentence on the criminal who injured him or her — particularly not, as in this case, after the criminal has been found guilty in court.

Blather: we should have compassion, because Polanski has been through so much.

Perhaps. Penalties for criminal acts are established by acts of the legislature, and they are usually established as a range of penalties rather than a specific penalty. For example, the penalty for armed robbery might be imprisonment in a maximum security facility for from 5 to 25 years, and a fine ranging from $1,000 to $50,000. The reason for the large range of possible penalties is so the judge, upon hearing the circumstances of the case, the defendant’s value to society, the unfortunate circumstances leading to the crime, or any other mitigating fact, can adjust the penalty to suit the need. In other words, the judge does have the power to change the outcome in response to things like how hard Polanski’s life has been, if he thinks that is relevant.

However, the judge does not have the power to punish the criminal less than the lowest penalty established by the legislature. Why? Because the legislature has not given him that choice, and it’s the legislature that establishes the law. If we really think the law should allow a person committing a particular act to go free if the circumstances are sufficiently heart-breaking, it is up to the legislature to specify that in the formation of the law. Once the law is established, if you really think the penalty is too harsh and should be less, the correct move is to write to your state representative and lobby for a change in the law. (You also have extraordinary recourse, like petitioning the governor for a pardon.)

Blather: We should forgive Mr. Polanski. This is the Christian thing to do. So, he should not be arrested.

Yes, we should forgive Mr. Polanski, inasmuch as he has sinned against us. Forgiveness is for the offended, and it’s necessary for their mental health (on the other hand, if he did not sin against me, I have neither need nor power to forgive.) We should also have a great deal of compassion for both the criminal, whose life has probably been ruined by the arrest, and the victim, whose life has usually been damaged by the crime, and also for the families of both. And we should continue to express that compassion as the criminal goes through the legal process of having the particulars of his crime established in court, and later through the process of paying the penalty for the crime.

Forgiveness and compassion are personal responses. Exacting a penalty for a crime is a social response. There is no conflict between them. One can forgive the criminal and still cooperate with the process of exacting the penalty for the crime. Cooperating with the state as it prosecutes the criminal does not constitute unforgiveness. Recall the philosophical position discussed in the first Blather/Response, above — the crime is committed against society, not against the victim. Recall the limits of the court system discussed in the second Blather/Response, above — the penalty is set by the legislature, not by the court, nor by the victim. If “we” are going to forgive the criminal, that option must be established by the legislature, or it will not be possible after the fact.

Blather: he didn’t really rape her, it was just statutory rape.

Don’t say this to my face, you’re likely to get something thrown at you. Like a fist.

First of all, the facts of this case, which are not in dispute, establish that despite all the alcohol and drugs there was no consent, so it really was rape. But beyond that, the theory of the law — with which I agree completely — is that children below a certain age are not capable of making sensible choices about sex. Their curiosity, their inexperience, their raging hormones, their unrealistic expectations, their delusions of immortality, their lack of moral maturity, all make them more easily susceptible to agreeing to things that more mature minds would recognize as dangerous and ill-advised. It is always the adult’s responsibility to steer the child (teenager) away from the danger. The adult failing in that responsibility is taking advantage of the teenager’s natural curiosity; that is the crime. The adult is the one who is supposed to know better.

Yes, I know that every teenager in existence insists that they’re fully capable of making sensible decisions about sex. They all also say they’re ready to drive a car; we all know what the safety stats say about that. The sheer inability to comprehend the dangers is part of the immaturity that the law recognizes.

Blather: It was 30 years ago. Isn’t there a statute of limitations or something?

There’s an excellent reason for statutes of limitations; peoples’ memories fade, and it becomes impossible to establish the facts of a case after several years have passed. However, those don’t apply here. The arrest was made, the prosecution took place, Polanski’s guilt was established in a court of law well within the limits of the statute. He just ran away before the court had a chance to pass sentence. So, no, there’s no statute of limitations. And it makes no sense to just let the guy go because he got away with not paying for his crimes for 30 years. That’s 30 years of pretending that the law didn’t apply to him; it’s high time that he was dispossessed of that illusion.

Blather: Polanski is a great artist, and has produced truly amazing art. He should not be arrested.

He also is a rapist, and contributed powerfully to producing an insecure society in which young women are not safe from predators. Polanski has been recognized for his art, and has grown wealthy from it. He should also eat the fruit of the other production I mentioned.

Insofar as you disagree, please reread Blather/Response item #2: the judge already has the power, granted by the legislature, to take the excellence of the man’s art into account when passing sentence. But he does not have the power to ignore the law.

Besides, do we really want to uphold the precedent that says that the laws that apply to the rest of us, do not apply to those who are rich, famous, or particularly good at what they do? Is it not the very essence of justice in a free society that everybody is equal before the law, regardless of their station?

Blather: everybody knows that child predators cannot be cured. We should lock him up and throw away the key.

There are a lot of different types of child predators. Some are very difficult to cure. None are impossible. The recovery rate from pedophilia is roughly the same as the recovery rate from drug addiction; a lot of the issues are the same. The law needs to be able to distinguish intelligently between different circumstances. The issues involving a 40-year-old man who routinely entices small children away from their mothers and keeps a houseful of snuff porn are different from the issues involving a 23-year-old who dates a 17-year-old, though both may be prosecuted under the same law. The law needs to be written to distinguish between them.

If there are particular pedophiles who are judged to be an ongoing danger to the community, that fact needs to be recognized by the legislature and incorporated into the law punishing those particular crimes. The current state of “Megan’s Law” enforcement and state sexual predator registration is abysmal, and ignores vital principles of liberty. Whatever laws we do make concerning child molestation, must conform to the boundaries of the Constitution.

Please feel free to add additional blather points in the comments, below, and I’ll be glad to give my opinion, or to listen to yours. I don’t care all that much about Mr. Polanski. I do care about the law.

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13 Comments »

September 29, 2009 @ 5:31 pm #

How about if we change his name to Roman Catholic Father Polanski…

Think that would change any of the blather?

September 29, 2009 @ 5:33 pm #

“Blather: The victim has forgiven him, so he should go free.”

And if the victim has _not_ forgiven him and wants him to be executed for his crime? should we follow her wishes?

September 29, 2009 @ 5:52 pm #

Suek, I can’t tell if you’re in agreement or disagreement. If you’re in agreement you’re just saying what Phil said. On the other hand if you disagree then I’m flabbergasted. How many times must Phil say that it has nothing at all to do with the victim?

September 29, 2009 @ 6:38 pm #

SueK,

I think “Father Polanski” would face somewhat different blather. It would still be blather, though. The facts about the law would remain the same.

September 29, 2009 @ 9:05 pm #

>>How many times must Phil say that it has nothing at all to do with the victim?>>

Once is enough. I don’t disagree with him…it’s just that if you propose the “execute him” option to those who think the victim’s wishes should be considered, I suspect they wouldn’t be in agreement. You really can’t seriously propose the one without considering the opposite as a valid option. Well…not logically, anyway.

>>The facts about the law would remain the same.>>

True…but I disagree about the blather – it would be of a totally different nature. But I think you know that…!

September 29, 2009 @ 9:59 pm #

Polanski is guilty of a second crime, flight from punishment. Now that he has been captured, the punishment for that needs to be added to the punishment for the original crime.

We hear that he is a great artist. I have to tell you that this claim is truly subjective. What makes a great artist? Many people think this man is a great artist, but I for one do not think so. In any event, great artist or not, it is entirely irrelevant to the matter of punishment for the rape of a child.

Would we really want to make the argument that great artists were allowed to make moral trespasses that lesser men should not make? How many children should a great musician be entitled to rape? Should this be limited to artists only, or should perhaps literary giants also be allowed this sort of license? What about great scientist? Is there any end to that slippery slope?

September 30, 2009 @ 4:45 am #

For Suek, the Anchoress weighs in with something akin to your remark about “Father Polanski”:

http://www.firstthings.com/blogs/theanchoress/2009/09/29/a-study-in-contrasts/

That anyone could rise to the defense of Polanski’s monstrous acts is such a sad testimony to the state of our society. I hope the bright light shown upon his crime will give us the opportunity to reflect upon the values being embraced by those in the media as being moral and excusable.

The shocking lack of understanding of the legal process is just as depressing. You need not be a criminal defense attorney to understand that Polanski’s guilt is not an open question, that his flight to avoid incarceration is itself criminal act.

September 30, 2009 @ 6:44 am #

I was addressing the general ignorance concerning our American legal system, but as the celebrity endorsements for Polanski’s freedom mount, I’m increasingly incensed at the clear message:

If you’re sufficiently “enlightened,” no crime you commit is really a crime.

They really do believe they’re so virtuous that the rules that apply to ordinary folks, do not apply to them.

On what do they base this sense of virtue?

September 30, 2009 @ 8:29 am #

Phil,
I think we could call their outlook on everything as “Subjectivism.”

September 30, 2009 @ 8:41 am #

In response to Blather #1 – there is a difference between forgiveness and mercy and it seems that people who espouse #1 confuse the two.

September 30, 2009 @ 2:20 pm #

philwynk,

Could not agree more with your comment.

Now as to your question, I do not know the answer. But somehow I kind of, sort of suspect that if you have to ask this question, you are not one of them.

September 30, 2009 @ 9:23 pm #

So, is legal penalty supposed to be vengeance, or deterrence?

(Personally, I’m comfortable with vengeance.)

October 1, 2009 @ 10:15 am #

I don’t think it’s supposed to be either, really. I think it’s a way for society to remove the right of vengeance from the individual and place it on society with a goal of preventing ongoing feuds. So – maybe it _is_ vengeance – but it’s a vengeance tempered by removal of emotion, which should allow justice to be imposed. Society sets up the rules, and society gets to decide if the rules have been broken. If they have been, then a penalty can be imposed. Pay to play, so to speak.

One would think that deterrence would also be an effect, but that assumes that a perpetrator is using reason instead of emotion – and I think that isn’t always true.

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