Should Roman Polanski get a tougher sentence for sex with a 13-year-old girl than he would have gotten 30 years ago?
The New York Times suggests he might:
Manners, mores and law enforcement have become far less forgiving of sex crimes involving minors in the 31 years since Mr. Polanski was charged with both rape and sodomy involving drugs. He fled rather than face what was to have been a 48-day sentence after he pleaded guilty to unlawful sex with a minor. But if he is extradited from Switzerland, Mr. Polanski could face a more severe punishment than he did in the 1970s, as a vigorous victims' rights movement, a family-values revival and revelations of child abuse by clergy members have all helped change the moral and legal framework regarding sex with the young.
The Times portrays the differences between then and now as reflections of a shameful past. And some of the attitudes reflected in the original Polanski prosecution really were stupid. For example, a 1977 report by two probation officers on Polanski mentioned "some permissiveness by the mother" of the girl in question, since she had let the girl spend time with the director. How is a mother's permissiveness relevant to the culpability of the guy who bangs her daughter? It isn't. It's straight old-fashioned cultural bigotry, blaming a crime against an individual on the morals of her family.
But what about other factors cited in the probation officers' report? The Times notes that "in a conclusion that might particularly jar readers today, [the report] pointed toward evidence 'that the victim was not only physically mature, but willing.' "
Hold it right there. Why exactly should we be aghast that the legal system of the 1970s considered such evidence relevant to Polanski's culpability? Why aren't the physical maturity and willingness of the girl—or boy—significant?
In fact, they are. As I've pointed out before , over the past 150 years in the United States and Europe, the average age of menarche—a girl's first period—has fallen two to four months per decade , depending on the country. In 1840, the age was 15.3 years. By the early 1980s, it was 12.8. It's quite plausible that the 13-year-old girl Polanski had sex with in the late 1970s was, to some degree, sexually mature.
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.
And that's exactly what Polanski's judge and probation officers were inclined to do. The Times reports that the authorities treated Polanski "not so much as a sexual assailant but as ... a normally responsible person who had shown terrible judgment by having sex with a very young, but sophisticated, girl." The probation officers' report "quoted a pair of psychiatrists as saying that Mr. Polanski was not 'a pedophile,' " and it concluded that his offense "appears to have been spontaneous and an exercise of poor judgment by the defendant."
That's an entirely reasonable assessment of the incident. There's a difference between pedophilia and taking advantage of somebody who's old enough to be interested in sex but too young to judge the physical and emotional risks of messing around. If the legal officers and moral critics of the 1970s saw that distinction more clearly than we do, the shame is ours.
(See Wednesday's follow-up post on Polanski.)