Sex Crimes

Swiss Delay Polanski Extradition

Switzerland has decided not to extradite Roman Polanski until a California court first resolves whether the fugitive film director can be sentenced in absentia. TalkLeft has more. From the UK Press Association:

Justice Ministry spokesman Folco Galli said that a judgment on sending Polanski back to Los Angeles was still pending, but provided the clearest timeline to date for when Swiss authorities may close their examination.

If it grants Polanski's request to be sentenced in absentia, it could mean that the 76-year-old director avoids a forced return to the US. The Swiss will not extradite him unless he is given a sentence longer than six months.

But rejection from the California court might mean that time has run out for Polanski, who fled the US in 1978 after admitting to having sex with a 13-year-old girl. The Swiss arrested him on September 26 as he arrived in Zurich to receive a lifetime achievement award from a film festival, and imprisoned him for over two months before moving him to house arrest at his chalet in the luxury resort of Gstaad.

Polanski's extradition is a complicated and diplomatically sensitive decision for the Swiss, as it deals with a three-decade-old case with accusations of wrongdoing by a Los Angeles judge, a confused sentencing procedure and the director's own flight from justice. There is also Polanski's status as a cultural icon in France and Poland, where he holds dual citizenship, and his history as a Holocaust survivor whose first wife was brutally murdered by crazed followers of cult leader Charles Manson in California.

Student Post - You Can Run, but You Can't Hide

The New York Times recently published an article rehashing the story of Roman Polanski, who was detained in Switzerland for deportation. Polanski now faces punishment for a 32-year-old conviction on one count of having unlawful sex with a minor—that was once viewed as a “lapse in judgment” by an otherwise clean individual. In 1977, at the age of 13, Samantha Geimer was drugged and raped by Polanski. Mr. Polanski fled the United States when the possibility of jail time and deportation was indicated by Judge Laurence J. Rittenband.

The most interesting part of this seemingly “normal” case of unlawful sex with a minor is the astoundingly relaxed manner in which sex crimes were viewed in the 1977 era. A report prepared by Polanski’s probation officers characterized the rape as an exercise of bad judgment and suggested that Polanski receive probation rather than actual punishment. This “slap on the wrist” recommendation was perpetuated by the laissez-faire view of sex crimes in this era, in addition to the victimization of Polanski. From the New York Times article:

[His probation officer’s report] described his birth to a Polish national father, Riszard Polanski, and a Russian national mother, Bula Katz, and told how his Jewish family was confined behind barbed wire in a Krakow ghetto during the German occupation.

In 1941, the report noted, Mr. Polanski’s mother was taken to Auschwitz, not to return. Later it said, “the defendant’s father cut the wires permitting the defendant to escape” the ghetto, to spend the war with Polish families.

Recapping the defendant’s background, the report said Mr. Polanski was blocked from attending advanced art school after the war “because of his Jewish origins,” lost his religious faith, and twice suffered a fractured skull, once as the result of an assault in Poland, once after a car accident. It noted a first marriage in Poland, and a second to the actress Sharon Tate, who, it said, “was killed by members of the Manson gang in Los Angeles in the well-documented case in 1968.”

I am sure these devastating life events endured by Polanski were riveting to his probation officer and certain Hollywood VIP’s who put effort into securing Polanski’s good character, but they are not by any stretch of the imagination justification for rape. In fact, as there is no justification for rape, Polanski’s broken past is completely irrelevant in defending his actions toward Geimer. It is alarming when rapists are victimized in this manner. Through the eyes of Polanski’s former probation officer, the emphasis is placed on the trials and tribulations of the rapist, rather than what the victim has endured for the past 32 years. Furthermore, cultural differences, the alleged provocation by the 13-year-old victim, and the speculative unlikelihood that Polanski would commit a subsequent offense are absolutely no reason that this monster should have been gifted with the lesser punishment of probation—not in that era, and certainly not in this era. Luckily, current trends are working towards stricter punishments for sex offenders, although modern day law enforcement and judiciaries constantly struggle with policing the parole of sex offenders.

CA Appeals Court Rejects Polanski Request for Dismissal

Recently, Roman Polanski, the award-winning filmmaker, suffered a legal setback when a panel of the California Court of Appeals rejected his request to re-open his 1977 child rape case. The appellate court ruled that the lower court judge did not abuse his discretion when he refused to consider Mr. Polanski's request for dismissal request based upon his fugitive status. But the court also urged the LA DA's office to investigate alleged judicial and prosecutorial misconduct. The WSJ Law Blog, TalkLeft, and the NY Times have more. You may read the full 70-page opinion here. From the opinion:

In another chapter of what surely must be one of the longest-running sagas in California criminal justice history, Roman Polanski, a fugitive since 1978, asked the trial court to exercise its discretionary authority to dismiss the criminal prosecution against him that has been pending since 1977. The trial court declined to consider Polanski‟s request until Polanski submitted to the court‟s jurisdiction by returning to the United States and appearing in court. Polanski asks this court to compel the trial court to dismiss the action or, at least, to conduct an evidentiary hearing on Polanski's request. We conclude that the trial court did not abuse its discretion in applying the fugitive disentitlement doctrine and refusing to consider dismissing the action. In so doing, we do not disregard the extremely serious allegations of judicial and prosecutorial misconduct that have been brought forward, but urge the parties to take steps to investigate and to respond to the claims. 

 * * *

Although there is no basis for extraordinary relief here—Polanski retains remedies in the ordinary course of the law, and the trial court did not abuse its discretion in relying on the disentitlement doctrine to deny Polanski the opportunity to seek relief—we remain deeply concerned that these allegations of misconduct have not been addressed by a court equipped to take evidence and make factual determinations as to the events in 1977 and 1978. Fundamental fairness and justice in our criminal justice system are far more important than the conviction and sentence of any one individual. “[F]or my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.” Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting).

Polanski's allegations urgently require full exploration and then, if indicated, curative action for the abuses alleged here. Time continues to pass, and the delay in addressing this matter has already removed one participant from the ranks of available witnesses for an evidentiary hearing on the judicial and prosecutorial misdeeds that have been alleged here. The passage of more time before this case‟s final resolution will further hamper the search for truth and the delivery of any appropriate relief, and it will also prolong the agony that the lack of finality in this matter continues to cause Samantha Geimer. We exhort all participants in this extended drama to place the integrity of the criminal justice system above the desire to punish any one individual, whether for his offense or for his flight. As Justice Murphy wrote in dissent in Eisler v. United States, 338 U.S. 189, 194-95 (1949), “Our country takes pride in requiring of its institutions the examination and correction of alleged injustice whenever it occurs. We should not permit an affront of this sort to distract us from the performance of our constitutional duties.” We encourage all participating parties to do their utmost to ensure that this matter now draws to a close in a manner that fully addresses the issues of due process and fundamental fairness raised by the events of long ago.

Polanski Wins Bail Request

Oscar-winning director Roman Polanski has been granted bail while he awaits a ruling on his extradition request by U.S. authorities for rape charges in California. Above the Law and WSJ.com Law Blog have more. From the Wall Street Journal:

A Swiss court agreed Wednesday to release Roman Polanksi on bail of 4.5 million Swiss francs ($4.5 million), persuaded that the large sum was enough to keep the Oscar-winning film director from fleeing the country while he awaits a ruling on whether he would be extradited to the U.S.

In granting Mr. Polanski's request, the Swiss Federal Criminal Court reversed a decision last month by the Swiss Justice Ministry to reject his offer to put up his ski chalet in the tony resort of Gstaad as a guarantee. At the time, the ministry said the lack of a cash guarantee might not keep Mr. Polanski from attempting to flee the country. The ministry now has 10 days to appeal the court's decision, but a spokesman said it would make a decision much sooner.

Swiss Justice Minister Eveline Widmer-Schlumpf said she saw "no reason" to appeal Mr. Polanski's release, the Associated Press and Swiss TV reported. The ministry had no further comment on the court's ruling. Mr. Polanski's lawyer in France had no immediate comment.

Mr. Polanski has been in a Swiss jail since police arrested him Sept. 25 upon his arrival in Zurich, where he was slated to receive an award at a film festival. He was arrested on a U.S. warrant issued in 1978 when he fled California after pleading guilty to having had sex with an underage girl. In late October, U.S. authorities filed a formal request for him to be extradited. The Swiss Justice Ministry is still processing that request, but is expected to make its decision within about a month, according a person familiar with the situation.

Polanski Loses First Bid For Release

Roman Polanski lost his first bid for release from a Swiss jail while he awaits a formal request for extradition by U.S. authorities. The Wall Street Journal has more. From the WSJ Law Blog:

Polanski on Tuesday lost his first appeal to be released from a Swiss jail while the U.S. prepares its formal request for extradition. (How long does it take to prepare a formal extradition request, anyway?) 

The ruling was prompted by a request last week by Polanski’s lawyers to allow him to be held under house arrest while the situation developed. Polanski’s house arrest isn’t, as you might imagine, the house arrest of your average Swiss commoner — Polanski had requested to chill out at his ski chalet in Gstaad, a tony Swiss resort town.

In any event, the Swiss Justice Ministry rejected the request on fears that Polanski might flee — as, mais bien sur, he’s done before.

According to the WSJ, Polanski has one more chance to secure his release while his fate is decided. Last week, his lawyers filed an appeal with a Swiss federal criminal court to release him.

NYT: Why Arrest Roman Polanski Now?

With the recent arrest of fugitive film director Roman Polanski, the New York Times has an article asking: why now?  Polanski, who resides in France, was arrested in Switzerland where he owns a home and frequently visited. From the article:

The sudden move by Swiss authorities to arrest Roman Polanski for possible extradition to the United States after 31 years as a fugitive — and countless visits to Switzerland in the interim — has roused diplomats, offended supporters of the filmmaker and left more than a few onlookers asking themselves the same question: Why now?

Law enforcement officials here have said it was a simple matter of opportunity. 

But supporters of Mr. Polanski have said that this has been true many times since he fled the United States in 1978 to escape sentencing in a sex-crimes case involving a 13-year-old girl.

Piqued by claims that it had not pursued Mr. Polanski in the past, the district attorney’s office circulated a list of actions and queries by which it had monitored his travels in at least 10 countries, including what appeared to be a near miss, when officials relayed a request for information from Israel about a visit in 2007. “Polanski had left Israel and was not arrested,” by the time the information arrived, said the advisory.

Mr. Polanski’s lawyers, in an appellate court filing in August, said the district attorney’s office had avoided attempts at extradition, which might have resulted in hearings at which judicial misconduct would have been raised as an issue.

Call for Papers: Sexual Violence In Conflict Zones

Thanks to Feminist Law Professors, we see this call for original papers. The topic is: “International Efforts to Address Sexual Violence in Conflict and Post-Conflict Zones." From the post:

President Obama has vowed to put women’s issues at the core of American foreign policy. His decision to institute an Ambassador-at-Large for Global Women’s Issues is unprecedented and reflects the elevated importance of global women’s issues to the State Department. Secretary of State Clinton has drawn attention to women at nearly every stop in her travels, most recently on a visit to eastern Congo to speak out against mass rape. Clearly Obama’s Administration recognizes the urgency of this crisis surrounding the use of rape as a tool in armed conflict in Africa and worldwide. Feminists in the academy have an opportunity to help shape the questions leaders will answer as they formulate policy to address: (1) sexual violence as a weapon of war; (2) sex trafficking as a by- product of war; (3) services to help victims of these atrocities.

In this spirit, we invite papers for an anthology on international efforts to address sexual violence in conflict and post-conflict zones. The twentieth and twenty-first centuries have witnessed historically unprecedented levels of violence against non-combatants as well as a concomitant rise in international and local efforts to assist survivors of conflict-related sexual violence. While a growing literature documents the use of rape as a tool of war, there is a glaring lack of accessible work on the initiatives and institutions currently tackling sexual violence as a serious issue in conflict and post-conflict situations throughout the world. Our co-edited volume will employ case studies from research on such global and local initiatives and institutions, thereby arriving at a deeper understanding of the various ways in which communities respond to this issue cross-culturally.

As we would like to specifically target our volume toward undergraduates and a general audience, we seek accessibly written chapters from a variety of methodological, theoretical and disciplinary standpoints, with a particular focus on the following areas: [1] the ability of international criminal tribunals to prosecute wartime sexual violence without further victimization of witnesses; [2] analyses of culture-specific practices and institutions, including NGOs and state initiatives that address gender-based violence in conflict and post-conflict situations; [3] efforts toward integrating men into the discourse of sexual violence as both victims and agents of power, including judges, prosecutors and state agency leaders; [4] the impact of military regulations and military culture in constructing accountability for soldiers, border guards, police, aid workers, and United Nations peacekeepers.

UK Sex Offender Banned From Particular Street

A British sex offender has been banned from visiting a particular street. From the BBC:

John Horton, 41, has been banned from visiting the street in Chard for five years afer a court granted an injunction.

Knightstone Housing Association was granted the order after some residents complained Horton may try to return after his release from prison.

Horton has served a sentence for indecently assaulting a girl under 16 in Wales.

He has also been convicted twice for causing grievous bodily harm and was sent to prison in 2008 for handling stolen goods and for breaching his sex offenders order.

Globalizing Sex Offender Registration

Time has an interesting article detailing growing support for an international sex offender registry. A bill, H.R. 1623, was introduced by Rep. Chris Smith (R-NJ) earlier this year to do just that. The bill, which you can read about here, would alert foreign officials whenever a U.S. sex offender intends to travel and encourages other countries to return the favor. From the article:

While the world's attention was focused on Phillip Garrido, who is accused of abducting 11-year-old Jaycee Lee Dugard in 1991 and holding her hostage for 18 years as a sex slave, three other alleged sexual predators were quietly brought back to the U.S. to face prosecution for abusing countless children in Cambodia. The horrifying ordeal of Garrido's victim is now well documented; however, the stories of an estimated 1.8 million other children worldwide who are forced into the multibillion-dollar commercial sex trade every year remain largely unheard.

The case has reinvigorated support for H.R. 1623, the "International Megan's law," which Representative Chris Smith, a New Jersey Republican, introduced in March 2009. If passed, the bill would alert officials abroad when U.S. sex offenders intend to travel and would encourage other countries to keep sex-offender lists and notify American officials about offenders' U.S. travel plans. U.S. law can grab American predators overseas.

Human-rights organizations say an International Megan's Law would be a step in the right direction. "If we know someone is committing serious crimes at home or overseas, we want to accurately identify them," says Karen Stauss of the Polaris Project, an organization dedicated to combating human-trafficking. Amanda Bissex, UNICEF Thailand's chief of child protection, agrees that H.R. 1623 would benefit vulnerable children. "We need to improve law enforcement and the economic welfare of children," says Bissex, "but we also need to address people's attitudes and create an environment where there is zero tolerance for abuse of children, whether in their home country or overseas."

One of the wrinkles that I think is important in evaluating such a law is what countries will do with the information. In the case of state registries, the laws prohibit the information for being used to harass, attack, or discriminate. Since the U.S. has no power over countries receiving the information, unless bilateral or multilateral agreements are reached, other nations might bar all offenders from travel or subject them to extra punishment/regulation. At the very least, hopefully lawmakers recognize the errors of past laws by defining "sex offender" narrowly.

Student Post - Somali Islamic Court Publicly Lashes Four Accused of Gang Rape

A picture of a young man getting whipped by soldiers in front of a large crowd in Somalia was released to local and international news sources on March 9th, and brought controversies out in the open. The headline reads: Somali Islamic Court Publicly Lashes 4 Accused Of Gang Rape. Even without looking at the picture, it is possible and natural to imagine a horrendous and appalling situation where not only did the accused not get a fair trial, but they were also punished physically in front of spectators brutally. And even with the knowledge of the seriousness and heinous nature of the crime that these young men were accused of committing, the first question that arises from this is, isn’t this a violation of fundamental human rights? Was it necessary to beat them in front of people? These would be the typical thoughts that come into our heads. However, this case differs from our usual imagination.

 

These four young men were found guilty of gang rape in the Somali capital, Mogadishu and it was a Judge Abdul Haq who designated four men to deliver the punishment immediately in front of a crowd of around 100 onlookers. Judge Haq genuinely believed that the punishment would deter other rapes. Despite his belief, many say that the lashing was not severe enough to make them regret their actions or help decrease the rape rate. Two of the youths smiled and laughed as they were punished. It was stated in the news that the lashing was administered through the clothes of the accused and did not break their skin. They admitted that they were guilty of raping a girl and welcomed the punishment. Although I am not by any way suggesting that the beating should have been more severe to a point where these men are suffering physically, I do not believe that it was an appropriate punishment for them.

 

In the very same land, an Islamist rebel administration in Somalia has had a 13-year-old girl, Aisha Ibrahim Duhulow, stoned to death for adultery after the child's father reported that she was raped by three men last October. When the father tried report to the police about her rape, she was detained and found guilty of adultery. None of the men accused was arrested. Even though convicting a girl of 13 year old for adultery would be illegal under Islamic law, stoning occurred anyways and the little girl died in front of thousand men watching.

 

What is more shocking is that the Court authorities have said the woman came to them admitting her guilt. She was known to be 23 years old until her father came forward and said that she was only a child. They said, while she was asked several times to review her confession, she stressed that she wanted Sharia law. And also that she believed that she deserved the punishment. Before more than 50 men started throwing stones at her, she begged for mercy and cried “don’t kill me, don’t kill me.” BBC reported that eye-witnesses said that she was forced into a hole, buried up to her neck then pelted with stones until she died in front of more than 1,000 people in a stadium.  According to Amnesty International, nurses were sent during the stoning to check whether she was still alive. When they removed her from the ground and declared that she was, she was replaced in the hole so the stoning could continue.

 

These are two rape cases with very different outcomes. Injustice took place in both cases in different ways, and it is not necessary to spell out what would have been just. A 13 year old girl’s crime was being raped, where as the four young men’s crime was gang rape. Yet, the result both ended up with public flogging that was not remotely adequate to the punishment each accused deserve. No court or religion should allow or sanction the execution of victims by any method. Furthermore, public flogging, lashing or stoning cannot be the appropriate measure of punishment for any crime.