Roman Polanski's Big Mistakes
By: Dana M. Grimes, Esq.
Published: May 2010 "Trial Bar News"
While the scandalous facts of the 1977 Roman Polanski case garner most of the media attention, the case actually involves some interesting legal issues, a number of which are yet to be resolved. Will Switzerland honor the extradition request of the Los Angeles County D.A., even though the extradition treaty applies only to sentences longer than the amount of time Polanski is probably facing? If sentenced in Los Angeles, what will his sentence be and what custody credits is he entitled to under Penal Code §§2900.5 and 4019? He is clearly entitled to the 42 days of actual custody he served when undergoing his Penal Code §1202.4 diagnostic study. He will receive additional good time credits under Penal Code §4019 and will likely be entitled to credit for custody in jail in Switzerland and possibly for the time that he is doing in home detention in his chalet after posting bail.
The international attention to this case has brought attention to a type of prosecution that is common in California: sex between an older man and an underage female (we sometimes see an older man and underage man, and very occasionally see an older woman and underage male).
Statutory Rape: Penal Code §261.5
The typical case we handle is a male teacher (or coach), in his 30s or 40s, who had a consensual relationship with a 16 or 17-year-old girl. The psychological evaluations of the teacher very consistently portray a man who is responsible and law abiding, popular with the students (which can be part of the problem), and who cares about the girl. Often he cares about her more than she cares about him; we have seen a few cases in which the girl breaks our client’s heart when she starts a relationship with another teacher.
The basic charge in these cases is Penal Code §261.5(c): engaging in sexual intercourse with a minor more than three years younger than the defendant—statutory rape. The case usually starts when a parent or friend of the victim reports that they suspect the relationship and the police contact the victim. Initially, the victim typically does not want to cooperate with the police, but eventually she makes a statement, provides evidence including clothing that might contain DNA, and cooperates with the detectives in a tape recorded phone call in which she is given a script and she asks the teacher to reminisce with her over their intimate moments together.
The teacher is fired and loses his teaching credential, and if convicted, usually ends up on felony probation, serving a period of perhaps four to six months in jail or work furlough. Sex offender registration under Penal Code §290 is mandatory with many sex convictions, but it is discretionary under Penal Code §261.5, and is generally not ordered in these cases (assuming the above facts of one relationship with a girl who is 16 or 17). California is one of the approximately 14 minority states with an age of consent of 18, rather than 14, 15, 16 or 17. In contrast to forcible rape and many other sexual offenses, statutory rape is not categorically a crime of moral turpitude.
The Ninth Circuit recently addressed this issue in Quintero-Salazar v. Keisler (9th Cir. 2007) 506 F.3d 688. Mr. Quintero-Salazar was convicted of Penal Code §261.5(d), which makes it illegal for a person over 21 years of age to have sexual intercourse with a minor under 16 years of age. The court held, in reference to Penal Code §261.5, that “California’s purpose in passing the law reveals that it was not moral, so much as pragmatic – they were attempting to reduce teenage pregnancies” Id. At 693, emphasis added. The research, accepted by the Supreme Court of California, demonstrates that teenage pregnancies are more likely when the males involved are over 18 years old.
The Quintero-Salazar ruling explains that the act of having sex with a person – even a minor under 16 – cannot categorically be considered morally repugnant. The Ninth Circuit overturned the BIA’s finding that Penal Code §261.5(d) is categorically a crime of moral turpitude, nothing that “[f]or there to be moral turpitude, ‘the crime must involve some level of depravity or baseness “so far contrary to the moral law” that it gives rise to moral outrage.’” Quintero-Salazar, supra, 506 F.3d at 692 (quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1071, quoting Jordan v. DeGeorge (1951) 341 U.S. 223, 237 n. 9). The Ninth Circuit held that “[w]here an act is only statutorily prohibited, rather than inherently wrong, the act generally will not involve moral turpitude.” Quintero-Salazar, supra, 506 F.3d 688 at 693.
Thus, the conduct of the defendants in these cases is often criminal simply because the victim is one year younger than California’s consent laws allow. Penal Code §261.5 is referred to colloquially as “statutory rape” because it is a malum prohibitum offense, a strict liability crime requiring no showing of scienter. If the young lady in many of these cases were one year older, or the relationship had occurred in most other states, the relationship would have been good cause for being fired from a teaching job, but not a crime. As the Quintero-Salazar court explained, “We know it is malum prohibitum and not malum in se because some conduct under section 261.5(d) would be legal in other states.” Id.
The Status of Roman Polanski’s Case in 1977
After Polanski pled guilty to statutory rape, Judge Rittenband sent Polanski to Chino state prison for a diagnostic study under Penal Code §1202.4, not to exceed 90 days, and Polanski was released from the study after 42 days. Before Polanski’s approaching sentencing date, Judge Rittenband indicated that Polanski was going to serve additional custody. (One of the things Judge Rittenband was mad about was a photo taken of Polanski in Munich celebrating the Oktoberfest with two frauleins, while he was out on bail awaiting sentencing. The judge was also displeased that Polanski was returned from the diagnostic study after only 42 days).
In Polanksi v. Superior Court (2009) 180 Cal. App. 4th 507, the Court of Appeal discussed at length the erratic and improper comments of Judge Rittenbrand alleged by Polanski’s attorney Doug Dalton. Deputy District Attorney Roger Gunson agrees with Dalton regarding most of these allegations. The facts are complicated and some of the statements and conduct of Judge Rittenbrand (who is now deceased) were inappropriate, but the bottom line is that Polanski was likely going to serve no more than another 48 days in custody, if he agreed to deportation (a more typical condition of probation would have been to “enter or reside in the United States only if in compliance with Federal Immigration law”). That was a lenient sentence for the conduct Polanski admitted to, even in 1977.
Bad Judgment After the Crime
It was a mistake for Polanski to jump bail, and through the years, he continued to make other mistakes. In his autobiography, he admitted having sex with the victim, but showed no remorse, and instead contended that all men want to sleep with young women. He admitted that after jumping bail and returning to Europe, he had relationships with schoolgirls from 16 to 19 years old, who would sneak out of their dorms at night and come to his house.
According to a declaration by Polanski’s attorney, Dalton, he and Deputy D.A. Gunson spoke with another judge of the Los Angeles Superior Court about the case and that judge indicated that if Polanski returned for sentencing, he would be sentenced in accordance with the initial plea agreement, and with no additional custody. However, the judge declined to roder that the press not be present, and to Polanski, the prospect of having the proceedings televised was a “deal breaker.” It was a mistake for Polanski not to return to California to be sentenced at that time.
Polanski was embraced by the film community and lived in Europe; he continued to make films such as The Pianist, a portrayal of Jewish-Polish musician Wladyslaw Szpilman’s autobiography, which mirrored some of Polanski’s childhood during World War II. Like Szpilman, Polanski escaped the ghetto and the concentration camps while family members were killed. In 2002, The Pianist won three Academy Awards including Best Director, the Cannes Film Festival’s Palm d’Or, and seven French César Awards including Best Picture and Best Director. Harrison Ford accepted the awards on Polanski’s behalf.
Then Polanski made another big mistake. He directed his new lawyers to file a motion to dismiss the case for judicial and prosecutorial misconduct. There was evidence of judicial misconduct (the allegations of prosecutorial misconduct did not involve Deputy D.A. Gunson, but rather another D.A. who admitted inappropriate ex parte communications with Judge Rittenbrand). The evidence in support of his motion was substantial, and is given serious discussion in Polanski v. Superior Court, supra. However, the risks that Polanski took in filing the motion were foreseeable. It was predictable that the response of the Los Angeles D.A.’s office was going to include some of the unfortunate facts of the case that most people had forgotten, including the fact that the victim was only 13 years old, and that he had given her drugs and a controlled substance. (These facts take this case out of the malum prohibitum category, both under the Quintero-Salazar line of cases, as well as the court of public opinion.) It was also highly predictable that the Los Angeles D.A.’s office might feel forced to play its hand and gain a renewed interest in serving him with his arrest warrant, which is what happened when he got off a plane in Zurich to attend a film festival in 2009. It was also highly predictable that the trial court would decline to rule on Polanski’s motion to dismiss or so long as he remained a fugitive, and that is exactly what happened. The Court of Appeal in Polanski v. Superior Court, supra, affirmed that decision of the trial court. Polanski is appealing that decision to the California Supreme Court.
Extradition?
It is hard to predict what the outcome will be of the appellate process in Switzerland regarding Polanski’s extradition (Another legal twist in this case is that Polanski pled guilty in 1977, just before the indeterminate sentencing laws of California were abandoned and the determinate sentencing system that we have today was adopted.) The irony of Polanski’s current situation is that he may end up spending months or years in house arrest, whereas if he surrenders and comes back to Los Angeles, he probably would be released almost immediately, because if Polanski does end up being sentenced in Los Angeles, it will almost undoubtedly be consistent with his original plea bargain. It may sound like fun to be under house arrest in a Swiss ski chalet, but Polanski lives in France and that’s where his wife and children are.
According to his aide, French President Nicolas Sarkozy is behind Polanski and the French culture minister, Frédéric Mitterrand, made a statement in Paris that he was astonished by the arrest. (Mitterrand’s autobiographical novel “La Mauvaise Vie” (“The Bad Life”) was a best seller in 2005. In the book he details his delight whilst visiting boys in the brothels of Bangkok, but the scandals of French statesmen require more than an article to list.) It is probably fair to say that the general attitude in France and Switzerland toward Polanski is more forgiving than the public opinion in the United States.
Roman Polanski escaped the liquidation of the Krakow Ghetto. He lost both of his parents in the Holocaust; his mother died at Auschwitz. In 1969, his pregnant wife, actress Sharon Tate, was murdered by the Manson family. In 1977, he gave a 13-year-old model a glass of champagne and a Quaalude before they had sex at Jack Nicholson’s house. The only thing that seems certain is that his life will continue to evolve in a way that is more fraught with trauma and scandal than any character in one of his movies.
UPDATE:
On June 12, 2010, Swiss justice officials denied the request to extradite Polanski, and released him after seven months of house arrest. A justice ministry official stated that American authorities had not provided all requested information, and that "in these circumstances, it is not possible to exclude with the necessary certainty that Roman Polanksi has already served the sentence he was condemned to at the time."
The Los Angeles District Attorney's Office still wants to extradite him, but Polanski will be safe from extradition in certain countries, including France and Poland.
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