Legal Lessons from the Polanski Case

by Ronald Rychlak - October 2, 2009

Reprinted with permission.

Most law professors who have had the opportunity to teach criminal law agree that it is a fun course. There is much discussion of morality, intentionality, deterrence, and other intellectually stimulating topics. On the other hand, you also have to deal with rape, which is both difficult and uncomfortable.

One rape case that we always discuss in my class is that of Roman Polanski. In 1977, Polanski, a well-known 44-year-old filmmaker, had sex with a 13-year-old girl. In fact, he drugged, raped, and sodomized her while the two were at actor Jack Nicholson's house. Polanski was indicted for furnishing a controlled substance to a minor, committing a lewd or lascivious act upon a child under 14, unlawful sexual intercourse, rape by use of drugs, perversion (oral copulation), and sodomy.

Polanski's lawyers got him a great deal. He pleaded guilty to having had sex with a minor, and the other charges were dropped. Prior to sentencing, however, Polanski fled the country and went to France. That nation refused to extradite him, but in September 2009, while in Switzerland to pick up a "lifetime achievement" award, he was arrested by Swiss authorities. He now faces extradition to the United States for sentencing on the statutory rape charge and to confront potential charges relating to his flight from justice.

Even before his recent arrest, the case illustrated many important legal issues. For instance, some people wonder what a 13-year-old girl was doing alone with Polanski at Nicholson's house. Why the girl's parents let her go unsupervised is an unanswered question, but that does not exonerate Polanski, nor does the fact that she was not a virgin at the time of the rape. Nothing – not provocative dress, nor being alone with a man, nor the victim's being sexually active – justifies rape. Her testimony to the grand jury was that she repeatedly told him "no." He overcame her with intimidation and by giving her champagne and quaaludes.

Even if the victim had agreed to have sex with Polanski, it would have been rape. A 13-year-old girl is legally too young to give consent, so in the eyes of the law he had sex without her consent. That is the legal definition of rape. Some commentators have noted that she looked and acted older than 13, but Polanski admitted in court to having known that she was only 13. (Later, in a radio interview, he defended himself by saying that no one had been harmed.)

Some people want to cut Polanski slack because his wife, Sharon Tate, was carrying his unborn son when she and the child were brutally murdered by the Charles Manson gang. Others note that although Polanski's mother was a Catholic, she perished in a Nazi concentration camp. (Polanski himself survived the war with the help of a Catholic family.) These are tragedies, but they do not provide him with a "Get-Out-Of-Jail Free" card.

Polanski fled because he came to believe that the judge would not follow the plea agreement and might impose something longer than probation. As we learn in criminal law class, however, sentencing is for the judge. A prosecutor may recommend a sentence as part of a plea agreement, but the judge does not have to follow it.

With the recent arrest, there is a new legal point to be learned from this case: The victim says that she does not want to see Polanski incarcerated. A criminal case is brought by the state, however, not the individual. In this case, moreover, the victim settled a civil case against Polanski. In all likelihood, he paid her money so that she would oppose criminal prosecution. It sometimes happens, but do we really want rich defendants to be able to buy their way out of trouble?

One legal issue that does not matter in this case is the statute of limitations. Normally, it is difficult to provide someone with a fair trial if too many years have passed since the crime took place. Accordingly, the statute of limitations imposes a time limit on prosecutions. There is no statute of limitations in this case, however, because Polanski has already entered a guilty plea.

That might lead to a final teaching moment: Polanski has people wanting to ignore the law (or revise it) so that he can escape punishment. That's quite different from the treatment so many Catholic priests have had. Accusations against them have been made on the basis of very speculative "recovered memories"; the press have treated them as if they are presumed guilty; and lawmakers have tried to change statutes of limitations for the express purpose of letting them be prosecuted for alleged crimes that are decades old.

Guilty priests should be punished as should guilty filmmakers, but statutes of limitations, evidentiary rules, constitutional protections, and the presumption of innocence all exist for legitimate reasons. Changing the law to accommodate a particular defendant or class of defendants is the wrong way to run a legal system. Justice should be blind. The Polanski case may reveal whether it is.

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).