Posted Friday, Oct. 16, 2009, at 9:48 AM
I've been reading your comments on the Roman Polanski case. Some of you are mischaracterizing what I wrote on Tuesday and Wednesday . But if I'm going to criticize you for confusing the issues, I'd better criticize myself, too.
What we've been debating in "The Fray " are at least three different questions. One is whether Polanski raped Samantha Geimer outright. By this, I mean rape defined by coercion, not simply by the younger party's age. This is a question of fact. Ideally, if we were a jury, we'd hear her testimony and his, and we'd be presented with corroborating evidence for each side, to the extent that it could be produced. Unfortunately, we don't have such a complete case. What we have is her grand jury testimony and a few other bits that have been disseminated over the Internet. Under these circumstances, I can't pretend to resolve the facts, and this wasn't my point anyway. But I should be clear: If the case is ever fully presented and Polanski is proved guilty of rape, he should be put away for a long time, and that's that.
If he isn't proved guilty of rape, we move on to the second question: Should he have been allowed to plead to statutory rape instead? I can understand the desire of prosecutors and the public to nail him for something. But I don't like using rape defined by age as a proxy for rape defined by coercion. (I don't like using sodomy as a fallback charge, either, which the prosecution also employed in this case.) To the extent that elements of coercion are present—and according to Geimer's testimony, they were—it's better to make them part of the statute and the prosecution's case.
The third question is whether to treat sex with a 13-year-old as pedophilia. That was my original question, and my answer is complicated: The age of consent can't really be one number, since people mature in different ways at different ages . This question touches on the claim from Polanski's probation report that I originally targeted: that there was evidence "that the victim was not only physically mature, but willing." Is maturity an arguable factor with a 13-year-old, particularly one who's posing nude in a jacuzzi? Yes. Is Polanski's age, as opposed to Genarlow Wilson's age , an arguable factor in assessing his culpability? Yes again. Is either factor dispositive? No.
Several of you have said that Polanski is a bad case for making my point about pedophilia. You're right. I tried to focus on the third question and then the second, but the first overwhelms the conversation. I don't mean to slight the first question. But I do want to separate the three questions so we can talk about each of them clearly.
On that point, I'm guilty of conflating them myself. In my first post on this subject, I mentioned that the probation report said Polanski's offense "appears to have been spontaneous and an exercise of poor judgment by the defendant." I then wrote: "That's an entirely reasonable assessment of the incident." I shouldn't have written that sentence, because it characterized the whole case and thereby took a position on the first question, which wasn't my point and on which I had no expertise.
I hope that by laying out the issues this way, I've undone some of the confusion I caused and liberated each of the questions for clearer consideration.