John W. Dean

What Kind Of Sentence Is Roman Polanski Facing?

By JOHN W. DEAN
Friday, October 16, 2009

Film director Roman Polanski's fate has been much debated recently. Polanski, as readers are likely aware, was arrested in Switzerland and now faces extradition to California, where he pled guilty to having had sex with an underage woman in 1977, but fled before being sentenced. The most exceptional current reporting on this case has been in The Daily Beast, by former Los Angeles County prosecutor Marcia Clark. She revealed that her former colleague's claim that he had improperly contacted Polanski's sentencing judge was false, thus killing Polanski's alibi for fleeing. And more recently, she has reported on the truly voluntary nature of the Polanski plea.

Facts, however, have had little impact on Polanski's supporters -- who include Ann Appelbaum at the Washington Post (whose husband is a Polish official lobbying for Polanski's release, a fact she failed to mention), Joan Shore at the Huffington Post (who is a friend of Polanski), and many in the Hollywood community. Others, like Kate Harding (who has no ties to Polanski) at Salon, believe that this captured fugitive should face the music for his admitted criminal behavior. I feel confident that Harding's view represents that of the overwhelming majority of those who have thought carefully about this subject.

A front-page story entitled "In Polanski Case, '70s Culture Collides with Today," which ran in the October 10, 2009 New York Times raised, but did not answer an interesting question: Assuming Polanski is finally sentenced, what sexual standard would the judge apply – the standard applicable at the time of the crime or today's tougher standard?

Late 1970's Sexual Mores Were More Lenient

The Times story notes that Polanski's lawyers are arguing that "Polanski does not even qualify for extradition from Switzerland, because he was set to be given a jail term of less than one year when he fled to France in 1978." This "soft deal," the Times noted, was "in tune with the more permissive times, when sex with the underage was often winked at, especially among entertainment world sophisticates."

"The sort of thing that would get guys arrested now was very common back then," Michael Walker told the Times, based on his study of the Los Angeles sex-and-drugs scene of that era in his book Laurel Canyon: The Inside Story of Rock-and-Roll's Legendary Neighborhood.

The Times reviewed Polanski's probation report, citing it to show how times have changed, and reporting that it "presented a broadly sympathetic portrait of Mr. Polanski and his behavior," notwithstanding the grand jury testimony of the 13-year-old victim, who had been forcibly raped and sodomized by Polanski. The report recommended against further jail time (Polanski had thus far spent 42 days in a state facility, undergoing psychiatric examination), and noted that "the present offense appears to have been spontaneous and an exercise of poor judgment by the defendant."

Most remarkably, by today's standard – a standard that rape victims have fought hard to obtain -- the 1979 probation report, written by a male probation officer, concluded, "There was some indication that circumstances were provocative, that there was some permissiveness by the mother," who had allowed her daughter to spend time with Mr. Polanski. As the Times noted, most jarringly of all -- and in contradiction to the victim's testimony -- the report concluded "that the victim was not only physically mature, but willing."

That was then; this, fortunately, is now. Stephen Cooley, the Los Angeles County district attorney who is seeking Polanski's extradition to California, noted after Polanski's arrest in Switzerland that he had received a "very, very, very lenient sentence" that "would never be achievable under today's laws." And the expert to whom the Times turned, Stanford criminal law professor Robert Weisberg, thought similarly: He explained that Polanski would face far stiffer punishment today, even for the single unlawful sex with a minor charge to which he pled. "If he were sentenced for just that crime today, a good prediction would be he would get three years in state prison," according to Weisberg.

To which standard will Polanski be held for purposes of extradition? And assuming he is extradited, to what standard will he be held by the California sentencing judge?

The Likely Sentencing Standard for Polanski's Extradition and Sentencing

It is my understanding that, for purposes of extradition, the Swiss will likely look to the penalty and sentence under California law. While Polanski's fleeing probably voided his plea agreement, and he may be charged with that crime as well as the others with which he was first charged, for purposes of discussion I will assume the Los Angeles prosecutors will seek to enforce the plea agreement. The statute under which Polanski pled guilty has remained largely unchanged as it relates to the offense to which he admitted. Below are the relevant parts of the California Penal Code:

§ 261.5. (a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age....

(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.

(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.

In one regard, Polanski is fortunate: Shortly before he engaged in unlawful sex with a minor, the statute I have quoted was amended to remove what had been up to a very heavy 50-year prison term for this offense, and reduce the penalty to three, four or five years in prison, along with registration as a sex offender.

Ironically, Polanski is better off under the current unlawful sex law, but what about the very different societal and cultural climate he faces, where judges hand out near-automatic three years in state prison for such sex offenses?

An Expert on Sentencing and Corrections Law

To answer this question, I needed an expert, and consulted Lynn Branham, currently a visiting professor at Saint Louis University School of Law. Professor Branham, with Michael Hamden, has recently published Cases and Material on the Law and Policy of Sentencing and Corrections – a leading work for students and practitioners.

Branham explained that the Constitution's bar against ex post facto laws – that is, retroactive criminal laws -- would mean that Polanski "can't be punished more severely than the law in existence at the time of his crimes allowed"; therefore, his sentence could not exceed the statutory maximum that existed in 1977. Given the change in the law, however -- which reduced the statutory maximum -- this is not Polanski's problem.

What about the influence of changing mores? Professor Branham noted that "changing views and norms on the severity of sex crimes with minors appropriately could affect the terms of any plea agreement into which the prosecutor might agree to enter. And these changed attitudes potentially and constitutionally could influence how the judge exercises his or her sentencing discretion within the parameters set by the 1977 statutes. In other words, the judge might sentence Polanski more severely within the range set by the statute than the judge would have if the case had come before her in the 1970s."

Finally, Professor Branham added, "Polanski's escape, which can be interpreted as reflecting an unwillingness to acknowledge responsibility for his crimes and a lack of remorse for them, can be a factor that will aggravate his sentences for the sex crimes, though not beyond the maximum sentence permitted in 1977." And, of course, his escape was another crime.

Based on Professor Branham's analysis, not to mention his fugitive status, sentencing will no doubt be much worse for Polanski now than it would have been in 1977-1978, a fact that he and his attorneys surely appreciate. No doubt Polanski is looking for some way, any way, to get back to France, which refuses to extradite its citizens. Last time, Polanski escaped by simply jumping on a plane. This time, it will require all of the creative directing talents he can muster, given the script of this story.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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