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Issue 38: Nov 2009
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Issue 38 Articles, Issue 38: Nov 2009

Justice Delayed is Justice Denied…

BY Hearsay
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polanski_intro.jpg
Wednesday 21st May, 2008
Justice Delayed is Justice Denied…

Renowned cineaste Roman Polanski’s decision to skip bail in the United States to avoid a jail term in 1978 after pleading guilty to unlawful intercourse with a 13-year old girl, and his arrest last month on an extradition warrant at the Zurich Film Festival, has yielded a melting pot of perspectives — political, generational, cultural and gender-based — largely obscuring the (possibly less exciting) legal issues that arise.

But what is at risk for Polanski now? What role does sentencing play in the context of the history of this case? And what would happen if, instead of molesting the victim in Jack Nicholson’s Jacuzzi, Polanski had been filming on the Gold Coast at the time? In the following article, Paula Morreau discusses these very questions.

Roman Polanski was originally indicted on rape, sodomy and drug charges but his plea of guilty to the lesser charge of unlawful sexual intercourse with a minor was part of a plea bargain.1 The evidence at proceedings before the grand jury in 19772 reveals that Polanski had arranged to take photos of the complainant for an upcoming Vogue spread. He knew that she was 13 years old, albeit that she looked to be in her late teens. On the second shooting day, Polanski supplied her with champagne and the prescription drug Quaalude. She had tried it before. He had her undress and ultimately had vaginal and anal sex with her, despite her protest. She did not struggle and there was no violence. He drove her home afterwards. Her mother overheard her telling her boyfriend what had happened and contacted the police.

How does a 21st century court sentence upon a 20th century crime?

The offence to which Polanski pleaded guilty does not require proof of lack of consent or force.3 Californian case law from the 1970s4 and now5 show a range of penalties, from non-custodial to custodial orders of several years, depending upon the ages involved and whether there was consent or any violence or threats. At the time, correctional authorities recommended probation. But with the disparity of ages in Polanski’s case and the lack of consent, a non-custodial term for such an offence today would be unlikely.

prison_time.jpgIn Queensland, the conduct in relation to which Polanski pleaded guilty is known as unlawful carnal knowledge. It only applies when the conduct is ‘consensual’. The sentencing range for a single offence of comparable nature now is in the realms of one to three years’ imprisonment.6 Factors affecting the range include the age of the complainant, the age disparity, any breach of a position of trust and the offender’s criminal history. In the 1970s, probation or releases on good behaviour bonds were often ordered.7

To a sentencing court in Queensland, because the delay was caused by Polanski’s flight, it would be difficult to conclude that this has caused him any relevant unfairness. Neither the stress of the pending proceedings (including being unable to attend the Oscars) nor any difficulties arising from his old age would provide reasons for leniency.8 However, the passage of time does give rise to some features of importance in the sentencing process now:

  • He would be sentenced by reference to the maximum penalties that were in place at the time of the offence. Comparable sentences would be those imposed under the previous framework.9
  • His conduct in fleeing the jurisdiction, whether in contempt of court or in breach of bail, could of itself potentially result in up to some months of imprisonment. This would be a cumulative penalty.10
  • His conduct in the time since i.e. demonstrated rehabilitation, lack of further offending, and otherwise good character can be taken into account, particularly in terms of assessing ongoing risk to the community.11 He is reportedly of otherwise good character: he has a tragic family history; he has made a significant contribution to the arts; and had not offended either before or apparently since.

The complainant’s attitude and the prosecution position

The sentencing judge ordered that Polanski be institutionalised for psychiatric assessment before sentence.12 A plea bargain was reached that he be sentenced to time already served in the institution (42 days) in respect of the lesser charged offence. Despite this, the indication from the judge was that a jail term would be imposed, prompting Polanski to flee, rather than to invoke the appellate processes.13 Polanski’s victim felt his internment (and the extensive publicity he suffered) was sufficient penalty. She agreed to the lesser charge and does not wish to see him imprisoned.14 What relevance, if any, ought these features have to bear on the process?

In Queensland, there is little room to facilitate a victim’s wishes on penalty.15 It is considered of less relevance than the public interest in consistency in sentencing, particularly for domestic violence and sex offences, where the victim might be taken to be vulnerable to intimidation.16 This is, to a lesser extent perhaps, also the case in respect of the decision to prosecute. A complainant’s attitude is one of 20 factors relevant to assessing the public interest in prosecutions.17 With sexual offences there is a more recent trend to proceed against a victim’s wishes if the allegation is maintained as true due to the seriousness or risk of repeat offending.18 Indeed, it was recently reported that a woman was fined for failing to attend court in Central Queensland to give evidence about her rape complaint.19

The plea bargaining process in the US may alter this somewhat. Whilst not binding upon a court because it was not approved,20 it was at the time a binding agreement between the parties (including the victim). In 2003, when The Pianist was in contention for an Oscar, prosecutors reportedly considered an offer for Polanski to return to face court under the former agreement.21 The complainant supported this. However, in defending the recent extradition proceedings, the Los Angeles County District Attorney’s office reiterated that the more serious charges remained pending.22 As to this, perhaps the documentary alleging misconduct by the DA’s office in originally prosecuting him and Polanski’s unsuccessful application to have the case dismissed in absentia earlier this year (now under appeal), were more than a little provocative.

The circumstances of the case are such that a penalty involving no custodial time was rationally open in the 1970s. But the reality is that Polanski is now facing significantly longer time in custody awaiting extradition proceedings23 even before proceedings in the United States begin. The spectre of more serious offences and a hardened sentencing approach for this type of offending mean that whilst the complainant’s position has thus far not been determinative, she may yet be his greatest support in the processes to come.

Paula Morreau

Footnotes

  1. To read the transcript of his plea: http://www.thesmokinggun.com/archive/years/2009/0928091polanskiplea1.html.
  2. To read the complainant’s testimony: http://www.thesmokinggun.com/archive/years/2008/0610081polanski1.html. And the probation report: http://www.thesmokinggun.com/archive/years/2008/1203081roman1.html.
  3. Section 261.5(d) Californian Penal Code; People v Johns, 173 Cal. App. 2d 38; People v Brown, 35 Cal. App. 3d 317.
  4. E.g., see People v Arrendondo, 52 Cal. App. 3d 970; People v Creighton, 57 Cal. App. 3d 314.
  5. E.g., see People v Garcia, 161 Cal. App. 4th 475; People v Manchel, 163 Cal. App. 4th 1108.
  6. E.g., see R v C [2002] QCA 046; R v AS [2004] QCA 220; R v T; ex parte AG [2002] QCA 132.
  7. E.g., see the criminal histories in Saunders v QCCB [2003] QSC 397 and AG v Murry [2007] QSC 121.
  8. R v L; ex parte AG [1996] 2 Qd R 63 at 66; R v Phillips & Woolgrove [2008] QCA 284; R v NJ [2008] QCA 331.
  9. R v McArdle [2004] QCA 7.
  10. Bail Act 1980, s 3. For example, see R v Reti [1992] QCA 283; R v Hillier [2007] QCA 279.
  11. Penalties & Sentences Act 1992, s 9(4)(a), (b), (g); R v C [2003] QCA 510; R v D’Arcy (2001) 122 A Crim R 268.
  12. “A 90-Day Psychiatric Study for Roman Polanski”, Washington Post, 20.09.77. All Washington Post articles referred to can be viewed at: http://www.vachss.com/ mission/roman_polanski.html.
  13. “Polanski Sentencing”, Washington Post, 15.02.78.
  14. See the complainant’s 2003 article for the Los Angeles Times, “Judge the Movie, not the Man”, at http://www.latimes.com/news/nationworld/wire/la-oe-samantha-geimer23-2003feb23,0,4716430.story.
  15. Seeking Justice: An Inquiry into how sexual offences are handled by the Queensland Criminal Justice System, Crime and Misconduct Commission, 2003, p 153.
  16. R v Freestone [2009] QCA 290 at [24].
  17. Director’s Guidelines, Office of the Director of Public Prosecutions, part 4(ii).
  18. Responding to sexual assault: the way forward, Criminal Justice Sexual Offences Taskforce report, AG’s Department of New South Wales, 2005, p 14.
  19. N Bita, “Woman fined after rape case no-show”, The Australian, 09.10.09, p7.
  20. People v West (1970) 3 Cal. 3d 595. 604.
  21. T O’Neil, “Oscars 2003: Did Roman Polanski miss his best shot at freedom?” Los Angeles Times, 02.10.09 http://goldderby.latimes.com/awards_goldderby/2009/10/roman-polanski-oscars-entertainment-news-article-story.html.
  22. J Leonard “LA County District Attorney defends pursuit of Polanski case,” Los Angeles Times, 02.10.09 http://www. latimes.com/news/local/la-me-polanski2-2009oct02,0,5978736.story.
  23. J Henley, Should Roman Polanski be above the law? Guardian UK, 28.09.09 http://www.guardian.co.uk/film/2009/sep/28/roman-polanski-french-government. 

 

Photo: Roman Polanski with Crystal Globe Image provided by Film Servis Festival Karlovy Vary