Michael's Daily Bread

Rape.

The thought of actually being raped brings chills to any normal woman. It is an egregious and devastating violation of body, soul and spirit. It is equally so for men, who by some accounts, because of the modern penal system, experience 50,000 more rapes per year than women.

It is serious issue not to be trifled with either by those who make false claims of rape; or those who want to downplay rape when it does occur as somehow being the victim’s fault; or those who want to ignore the gender blind nature of rape because it happens to a politically incorrect class of people. In fact it is so serious that under the ancient Mosaic moral code of the Hebrews it could elicit the death penalty. I imagine that The Biggest Loser reality show trainer Jillian Michaels speaks for many people in the video below when she says,

 

If somebody drugged and raped my 13-year-old I’d shoot them.

 

So having said all of that, what should we make of the Roman Polanski case?

Admittedly I hadn’t been following the affair very closely, since it seemed to feature the usual suspects in these types of cases. On one side you have a portion of the Hollywood elite and one of the foreign national governments under which Polanski is a citizen claiming it is a case of overreach and low priority and should be left alone (the French government has since withdrawn its support of Polanski). On the other side you have those who are claiming that the rule of law is at stake and Polanski must be brought to justice.

Then there are the pronouncements by people like Whoopi Goldberg who on national television said it wasn’t really “rape-rape,” as if non-consensual sex is based on a hierarchy of order. Her statement has been roundly booed in many corners and she has since clarified her comments by stating that she was only referring to the legal charge against Polanski and nothing else.

Suffice it to say that I didn’t think the usual combatants would shed any light on the fundamental issues at stake, so I kind of ignored it.

In fact to be honest, the first thing that came to my mind was what kind of backroom deal went on between the US Government and Switzerland that lead to Polanski’s arrest? He had been traveling freely for years throughout Switzerland where he owns a Swiss chalet. Why was this time any different? Clearly, at least in my mind, there was some kind of quid pro quo.

The official reason offered by the US Government doesn’t make any sense, as Swiss authorities could have easily arrested Mr. Polanski on numerous other occasions. The government needs little time to put you under their radar and detain you if they are so inclined, especially if you are moving about with no fear of arrest, as was apparently the case with Mr. Polanski.

That all changed the other day when I read some posts from several bloggers whose theological, political and economic musings I normally find interesting and challenging, even when I am in disagreement. One of those bloggers, recently writing about politics in general but not the Polanski affair specifically, noted in an otherwise fascinating article that rightfully skewers those who think politics is the hope of mankind, that

 

our problem is not the Nanny State. It is, rather, the Nanny Marketplace, whose commercials are broadcast these days on the dark side of our foreheads (emphasis in the original).

 

Say what? As a Christian voluntaryist who thus believes the initiation of violence by anyone is sin and denotes a profound lack of love, you can imagine my consternation at such a statement. How can anyone compare the coercive power of the State with voluntary actions in the market among people who are free?

Moreover, while nannies can play a positive role in society and offer their services as part of a mutually agreed upon voluntary contract, the State is not a nanny but a fully armed bully, rolling over its “constituents” night and day. Bill Anderson notes this in his series of articles on the Duke Lacrosse case:

 

As I survey what is left of this case – some civil suits against Nifong, Duke University, the City of Durham, and some police officers – I realize more than ever that the United States has become a country that is run by political rogues, and no more is that apparent than with federal and state prosecutors, and “law enforcement” officials. Indeed, if one wishes to be a lifelong criminal – and get away with it – I would strongly recommend going to work either in a prosecutor’s office or become a member of a federal, state, or local law enforcement agency.

 

He further notes in the same article:

 

The lawlessness of “law enforcement” personnel in the Duke case was and is breathtaking. People wearing badges or working as prosecutors fabricated evidence, lied to judges, lied to grand juries, lied to the public, hid exculpatory evidence, used federal funding fraudulently, intimidated witnesses, suborned perjury, ran a rigged “lineup,” and obstructed justice. Once upon a time, these things were considered to be crimes, but in the world today in which police and prosecutors rule, they simply are another day at the office.

 

Which is to say that states don’t influence, they force. That is what makes them the State. That is why the State is a predation upon society, causing all kind of perturbations that would otherwise never occur in a voluntary association of people. Any State influence is bound to make things that much worse. It is, as you will see in a moment, why the Polanski affair is still a live issue over 30 years after Polanski pleaded guilty to unlawful sex with a minor as part of the plea bargain.

Yet this affair with Polanski, while political in nature, is not primarily a market issue in a conventional economic sense, but rather one of penology, that is a question of how justice is meted out when someone has been found to have engaged in criminal behavior. Just as we should tread carefully when evaluating the writings of clergyman and theologically oriented laymen in the area of economics, we should tread just as carefully, if not more so, when it comes to the subject of penology. Too often they simply adopt the penal code of their particular society, which usually is neither appropriately just or appropriately merciful, and it certainly isn’t penitential in its function, something that rightfully belongs only to the Church and God.

A proper penology, as reflected in the Mosaic code of the Hebrews, is very specific about how these matters ought to be handled. The principle of true justice as expounded by Moses so many centuries ago is that of victims’ rights. It is not society that is harmed but a particular person. It is not the State which has had its “peace” upset but rather the life of a particular person that has been turned upside down. Fines paid to the State, for example, do not meet the principle of true jurisprudence, as they go to fill the coffers of a group of people who are already operating with stolen funds, and true justice seeks through restitution to make the victim whole, not lead to the further aggrandizement of the State.

Under true justice, it is the victim, and the victim alone, that determines the application of justice once guilt has been established. Thus any call for justice now in the Polanski affair that leaves out the wishes and desires of the victim is illegitimate and immoral. It seeks to place the State in a position that belongs only to God.

Contrast this approach with a statement from one of the aforementioned writers, who goes by the name Gabriel on his site:

 

His decision to flee his sentencing hearing and remain a fugitive is an affront to the people of California and the legal system intended to protect them. It is for this reason alone that he has been arrested in Switzerland and is awaiting extradition back to the U.S. After that, it is up to the appropriate prosecutorial authorities to decide what (if any) case to press against him. He can still be sentenced for the crime he plead guilty to. Now it must be decided what action his other criminal act warrants.

 

We should note a few things regarding Gabriel’s comments. First, it was not an affront to the people of California (i.e. society) or the legal system (i.e. the State) which routinely violates God’s principles of justice on a daily basis, rather it was an affront to Samantha Geimer, who if the plea bargain negotiations were made in good faith, is the victim here, not the “people” of California and certainly not the government of the state of California, which is essentially representing its own interests in light of the fact that Samantha Geimer has apparently formally filed to have all charges dropped against Mr. Polanski.

In the Polanski affair we have a rape victim.¹ That a rape occurred is not really in question. Attempts to explain away or bring back into play the original charges are superfluous. That is not the issue. The perpetrator was apprehended and at the request of the victim and her family agreed to a lesser charge in a plea deal. Under the Old Testament code a victim of rape had the right to compensation up to and including the death of her victimizer. The key factor here is that upon a finding of guilt it was the victim’s choice and not the enforcement arm of the society.

Mr. Polanski obviously angered the state of California by fleeing, but apparently not the victim. At the time she said she was happy to see him go because of all the unwanted attention the media brought to the case. Leaving that aside, today as an adult woman she wants the case to end. The state of California, exerting its illegitimate (though legal) moral authority, wants to carry on.

The Los Angeles District Attorney’s Office has said this case is no longer about the victim but rather is between the state and Mr. Polanski:

 

This is an issue between Mr. Polanski and the court,” said Sandi Gibbons, spokeswoman for the district attorney’s office. “All I can say is that the warrant for Mr. Polanski’s arrest was issued by the Superior Court of Los Angeles in 1978 because Polanski fled the jurisdiction. The court issued a warrant for his arrest that is valid to this day.

 

This is emphatically not true. It is always about the victim and not the State. In this particular instance, the victim is claiming the State has done more harm to her than Mr. Polanski.

Under Old Testament jurisprudence, once guilt was established the penalty was immediately applied. It should be noted that in almost all cases of capital crimes in the Old Testament, with the exception of murder (because the victim was no longer alive), there is little record of anyone seeking the death penalty. Compensation was normally of a financial nature, and when it was completed the case was over.

In the Polanski affair the conditions of victims’ rights have been met. But wait you say, didn’t Polanski flee the agreed upon plea bargain? So we should just let him go? No, not quite. Polanski was not fleeing the agreed upon plea (which involved no jail time) but rather a different punishment that he thought the judge was going to impose that involved significant jail time (more about this below).

Polanski also (albeit many years later) negotiated a civil settlement with the woman for $500,000. The modern bifurcation of a monetary payment as being distinct from “doing time” (as in jail time) is unjust, immoral and improperly perceived by many as “buying off the victim.”

When a person (or his surrogate) pays a monetary penalty for a crime that was committed, they are forfeiting the fruit of the life energy that was necessary to earn the money in the first place. It is in effect “time served” because the hours that were used productively to earn the money, have now been forfeited to someone else. Penology should not be primarily about denying someone’s freedom as a penalty for what he/she did, but rather should be about monitoring the freedom of the perpetrator to make the victim whole.

In other words, penology is about the victim and only secondarily the victimizer. We (which includes the State), are not to seek vengeance but rather restitution, i.e. making whole the victim. Restitution brings peace among men, but “vengeance” is a prerogative that belongs only to God. ²

Further, the woman wants the case to be over. She didn’t want the initial trial to go forward and her family negotiated a plea bargain. She as an adult has negotiated a civil settlement. And since victims’ rights, and not the “rights” of the State or “society” is the genuine arbiter of godly justice temporally speaking, the case for all intents and purposes is over.

Let’s listen to the other writer who caught my attention on his blog:

 

In any other cultural context what Ms. Hemingway describes is nothing less than rape, heinous rape. It should have been prosecuted as such, though the family of the girl in question wrote that the plea be accepted to save their daughter the further trauma of a trial. However, minimally, he should be tried on flight from justice charges – flight from his plea, not for rape, but for the far lesser crime of unlawful sex with a minor. This child rapist couldn’t even stick around to be ‘punished’ for that. Just as murders shouldn’t be granted clemency for being ‘born again’ or accepting the schema and changing their lives in prison, neither should talented artists be granted clemency from child rape.

 

The point obviously missed, downplayed, or just flat out misunderstood by this writer and others is that Polanski is not being granted clemency, he has negotiated a proper settlement with the victim in this case, and like it or not, that should be the end of the matter. In accordance with victims’ rights Mr. Polanski is free to go. The real terror comes from those who seek to implement and/or support policies which in effect attempt to make the State holier than God, i.e. stand in the place of God.

While this is the normal course of argument for many an otherwise sound thinker, this type of utilitarian thinking should be greatly resisted, for it enables the state to continue further illegitimate and immoral intrusions into the lives of the people it claims to protect. It is not much different from the utilitarian economists who say they believe in property rights but establish as their starting point what the state has already declared as valid title to property.

Obviously under such a scenario anyone who has been the victim of theft properly defined and yet the state upheld the thief’s title to the property is out of luck. It is equally true that just because the state of California has a law against fleeing “justice” doesn’t mean that law is just or more precisely being justly applied. When it comes to the legal declarations of the State accepting the status quo as a starting point can often be a dangerous enterprise.

How then should the situation be handled now based on victims’ rights? The State, acting as a holding agent for Samantha Geimer and not the state of California and its people, basically has three choices to place before the victim:

1. Do you want us to honor the original plea agreement?
2. Do you want us to negotiate a financial settlement?
3. Do you want us to just let him go?

We know she does not want to pursue this, and we know she has negotiated a financial settlement with Mr. Polanski; therefore the State has no moral authority in which to detain or imprison Roman Polanski. He thumbed his nose at them many years ago, but it was never about the State, it was always about Samantha Geimer.

The more profound question about Mr. Polanski’s flight is why was he in a situation where he had the opportunity to flee. He was in the custody of the state of California after pleading guilty. Any person who was being held for a heinous crime pending sentencing would be detained in prison and not allowed to roam free. People who are subject to being sentenced for a heinous crime are naturally flight risks, especially ones who have the means and wherewithal to disappear at a moment’s notice.

So why was Polanski free? He had negotiated with the state of California and the victim’s family a plea bargain that was based on a probation report that would not involve jail time. The State let him go free until sentencing because the State did not expect any jail time to be handed down. Mr. Polanski had an agreement with the victim and her family and all sides assumed that would be the end of the case.

What many people may not know is that plea bargains and settlements are subject to the approval of the presiding judge in the case. Two sides can negotiate in good faith only to walk in court and have the judge decide on something totally different. Mr. Polanski fled California because he had reason to believe that the judge was going to override his negotiated plea bargain. In other words Polanski feared the judge was going to replace the judgment of the victim and her family with his own judgment.

This is a clear violation of the doctrine of victims’ rights and can easily lead to (and has already done so in many instances) judicial tyranny. Roman Polanski fled because of the actions of an agent of the state of California interfering in the process of victim negotiated justice. Rather than try Polanski on a fugitive warrant, the State ought to ban judicial intervention in all good faith negotiated settlements.

The words of Samantha Geimer are quite telling at this point:

 

People don’t understand that the judge went back on his word.

 

Now it is unclear whether or not Mr. Polanski has paid the negotiated settlement (although a simple check by the state of California with the victim would clear things up assuming they don’t already know the answer). In that instance, and that instance alone, the State can act as a holding agent for Samantha Geimer until Mr. Polanski pays the agreed upon settlement. Once the settlement has been paid by Mr. Polanski justice demands that the State must let Mr. Polanski go.

Gabriel further contends:

 

In addition to the severity of his offense, I have little doubt that the potential message his arrest, extradition, and possible conviction could send to the majority of low-profile international fugitives out there will be taken into consideration. There are pragmatic concerns worth taking into account.

 

Yes there are some pragmatic concerns, but probably not the concerns Mr. Gabriel is considering, but here they are in no particular order.

1. The State pursuing a case where financial compensation has been made
2. The State pursuing a case where the victim does not want a prosecution to be made
3. The State pursuing a case that has the earmarks of a quid pro quo (i.e. selective justice)

In other words the State pursuing a case where God’s standard of justice temporally speaking has already been met.

One of the great evils of our age is the increasing ability of the State to pursue criminal charges without the consent of the victim which is the very antithesis of victims’ rights. It is evil. The State is ultimately saying that it has been harmed, that it occupies a position separate from the victim not as a mediator of justice but as an aggrieved entity. It is behavior like this, often sanctioned by otherwise well intentioned individuals, that leads to totalitarian behavior on the part of those who are supposedly protecting our society.

One final comment from Gabriel:

 

It’s not in my interest to say whether or not “we,” as a society, ought/ought not to forgive Roman Polanski his moral transgression. It was always his victim’s place to do that and she has. He should be grateful.

 

Indeed. Since she has forgiven him and most likely received a large sum of money it is now no longer the interest or concern of the State. Rape is heinous. There should be nothing but disapprobation for such an act. The quote from Jillian Michaels at the beginning of this article is certainly one way of expressing such feelings. More apropos to the current state of the Polanski affair is the final comment by Miss Michaels that is not shown in the brief video snippet embedded above:

 

If she’s [the victim] OK and feels that they are resolved then who are we to say

 

She is right. The case is over. This is not a question of liberal versus conservative or the Hollywood elite versus the people. This is a question of justice as defined by victims’ rights. It may have played out differently had my daughter or your daughter been involved, but in the case of Samantha Geimer, Roman Polanski and the state of California the issue is settled. It is time to move on.

 

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Michael Miles is the editor of Michael’s Daily Bread. He is also the editor of Nutrition and Physical Regeneration, a website devoted to restoring health and wholeness by returning to the traditional foods of our ancestors and disavowing the “displacing foods of modern commerce.”

Copyright © 2009 Michael Miles

 

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Notes

1 Legally, Roman Polanski admitted to consensual sex with a minor (statutory rape), he did not plead guilty to forcible rape. The reason given for the plea bargain by the family is that they did not want their daughter to go through the trauma of a trial. No doubt. My guess is that the LA District Attorney’s office made a strategic decision in conjunction with the family not to go to trial. This was a high profile possibly career defining case for a prosecutor. It involved a 13 year old girl being plied with drugs and alcohol by a man 3 decades her senior. Prosecutors don’t normally leave cases like this on the table, no matter the victim’s feelings. The case has slam dunk written all over it, so why the plea?

According to the court records Samantha Geimer had already experienced drugs, alcohol, and was sexually active before she met Roman Polanski. She attempted to down play it in her grand jury testimony but being in open court under the fire of cross examination is a whole different ball game. Most juries in America would want to put a 40 something man under the jail for sexually exploiting their 13 year old daughter. Equally, most juries in America would be suspect of a 13 year old girl who was already doing drugs, alcohol, and engaging in sex of her own free will. They would probably tell their own daughters not to hang out with such a girl.

In my opinion, the trauma the family and the DA’s office wanted to avoid was going through a trial only to come up empty handed due to extraneous factors (like those mentioned above) that were not a part of the incident in question. Neither would Polanski, if he could avoid it, want to subject himself to a potential guilty verdict on a much more serious charge. Thus the plea bargain.

2 It should be noted that anthropomorphic terms applied to God like anger, vengeance, etc. are pedagogical terms. God is not subject to the passions like men. Roman Polanski meeting the requirements of genuine justice does not mediate his act before God. It speaks only to the temporal nature of the matter as a way to provide civil peace. If his act of restitution is not a reflection of a deeper change in his heart, it will only provide peace for him in this life. Being in the presence of God’s love in the next life will be a terror to him. In that sense God exacts “vengeance” because while the truly penitent experience God’s love as joy, the impenitent will experience God’s love as a consuming fire.

 

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