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.

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.

Female High School Teacher Gets 12 Years For Sex With 17 Year Old Aide

A female high school teacher in Tennessee was recently convicted of having sex with a 17 year old male teacher's aide and received a 12 year sentence. Volokh and Above the Law have more. From the Tennessean:

District Attorney Ray Whitley said Sandy Binkley "got what she had coming to her."

David Ridings, Binkley's attorney, said it was the most egregious abuse of justice in sentencing that he has ever seen. "We hoped that (the judge) would follow the law. He failed miserably at that," Ridings said.

Binkley's attorney had hoped the former teacher would be sentenced to no more than three years. He plans to appeal.

Binkley, 37, the former teacher, was convicted Sept. 29 in Sumner County on two counts of statutory rape by an authority figure.

The convictions stemmed from a sexual encounter that occurred on March 20, 2008, between Binkley and a 17-year-old boy in a locker room office at Portland High School.

Binkley claimed she was raped.

Student Post- Sooner State in a Bind

Oklahoma's age of consent has caused the state to be in a bit of a bind. The Oklahoman reported the problem on March 22, 2009.  Twice in one week, officers from two different states searched for two different 16 year old girls who went missing after meeting men online. Both girls had tickets paid in full by men in Oklahoma. One girl, from Hawaii was found in Los Angeles on her way to Oklahoma. The other, from New York, was actually found living in a house in Oklahoma with an older man.

Here is where the issue arises. The man who was living with the girl from New York was taken into custody but the Oklahoma City Police do not plan an investigations because the girl was 16- the age of consent. "In Oklahoma, if you are 16, you can have sex all you want,” said Gayland Gieger of the Oklahoma County district attorney’s sex crimes team. However, if these sex acts were to be recorded or photographed, this would be illegal. It would be considered child pornography. One cannot help but to question how the act of sex isn't illegal but a mere picture of it would be. 

The story goes on though to discuss how federal officials are not sure on whether or not there is a violation of federal law here. An FBI officer was quoted in calling this a "pretty tricky" situation. Basically, the issue for the FBI was on the purpose of the meeting as well as the men buying the tickets for the younger 16 year old girls. Maybe the sex isn't illegal, but shouldn't the transporting of the girls (with paid tickets) across state lines be?

Issues like this only further beg the question of whether or not there should be a uniform state-by-state age of consent. Does Oklahoma have to worry about people from Texas, Tennessee, or Missouri, where the age of consent is higher, coming to their state to "enjoy" their lower threshold? Maybe. Despite this, the other issue that would have to be considered is if we want to throw teenagers in jail who both were under this age of consent but the sex was otherwise consensual. Granted, having sex at 13, 14, or maybe even 15 is a bad idea. But without a decent age differential, is it really criminal or just an issue that should be left to be dealt with in the living room rather than the court room?

Gender Bias in Statutory Rape Cases

A helpful reader pointed me to an interesting article in the Daily Beast about gender bias in statutory rape cases:

After a 17-year-old boy had sex with his 14-year-old girlfriend, he was charged with a felony for statutory rape. When a 17-year-old girl in the same town commited the same crime, she was charged with far less. Was the boy the victim of gender bias?
Alan Jepsen was playing videogames at his home in Sheboygan, Wisconsin, when the cops came knocking on his door. He was handcuffed in front of his sister and thrown in jail. In the words of his attorney, Jeffrey Purnell, “This child, this 17-year-old high-school kid, had to spend a week in jail—they locked him up and they put him in jail with grown-ups.”
His crime: Having sex with his 14-year-old girlfriend. And, perhaps, being a boy.
The day after Alan's arrest, Sheboygan authorities arrested Norma Guthrie, also 17, for having sex with her 14-year-old boyfriend. Norma, however, did not have to spend a single day in jail. She was released immediately, on signature bond, while Alan was held on a $1,000 cash bond, which his family could not afford. Sheboygan County Assistant District Attorney Jim Haasch is handling both cases.
The disparity in the punishment of these 17-year-olds, both accused of having sex with the 14-year-olds they were dating, goes much deeper. Haasch charged Alan with a Class C felony, which, according to court records obtained by The Daily Beast, carries a maximum prison sentence of 40 years. Norma, on the other hand, was charged only with a misdemeanor, which carries a maximum sentence of nine months in jail.
It should be noted that the gender bias in sex crimes involving minors extends beyond the statutory rape cases. As the various prosecutions involving female teachers with minor male children have illustrated, women receive far less sentences than men in similarly situated positions.

There are, however, reasons to not be troubled by such differences (assuming they are generalizable beyond the particular facts above). Female victims have a risk that is not comparable to male victims: pregnancy. Consequently, it is not unreasonable to punish men (even minor ones) more harshly in heterosexual situations. I think the developmental reasons for differential treatment are more mixed, but some would argue that the harm to girls is greater. 

With that being said, a lot of these cases seem to indicate a level of bias that is problematic. Even if female victims suffer a much greater risk of harm, that does not mean that female defendants with male victims should be receiving slaps on the wrist.

Regardless of your perspective on these issues, it's nice to see greater coverage as society really needs to come to better terms with adolescent sexuality in the criminal law.

Student Post - Romeo and Juliet: Sex Offenders?

What would we do with Romeo and Juliet? Some say that teenagers today are becoming sexually active at a younger age. Parents of sexually active teenagers face problems such as teen pregnancy, STDs, or, in some cases, their son or daughter facing criminal charges for statutory rape. Whoa, whoa, whoa, criminal charges? Yes, teenagers could face statutory rape charges for consensual sex with their teenage girlfriend or boyfriend, depending on the state law's age of consent. But is this "crime" what prosecutors should be spending their resources on? Perhaps yes, considering the substantial effects teen sex has on the individual and society. Perhaps no, considering teens have been having sex throughout history, and maybe these prosecutions are just an attempt to discourage premarital sex.

One concern is that the prosecution of teens, specifically boys, can be a form of discrimination. The Supreme Judicial Court in Massachusetts held that a 14 year old boy has a constitutional right to determine if the District Attorney discriminates against boys in the statutory rape prosecutions. Another concern is the lifelong effects of being labeled a sex offender (and having to register as a sex offender) for having "consensual" sex when the person (male teen) is so young when the "offense" occurred.

Whatever the motive for prosecuting teens for having sex with other teens, state legislators have considered reforming statutory rape laws. The Vermont legislature recently struck down a bill that would have relaxed the statutory rape law so that a 13 year old could have consented to having sex, so long as his/her partner's age is within 4 years. The current law allows a 15 year old to consent so long as his/her partner's age is within 3 years.

Teens face enough challenges without having to face the criminal justice system for hooking up with their lab partner. While the consequences of teen sex can be great, having a criminal record or being labeled a sex offender are not consequences that should be added. Preventing the problem of teen sex starts at home. Dealing with the consequences of teen sex also begins at home. But the ultimate consequence should not be handed down by the justice system.

Another Polanski Update

It seems like every few days there is a Roman Polanski article. And they alternate between sounding like defense lawyer press releases and prosecutor press releases. Here is the latest news from CNN:

Attorneys for the 75-year-old Academy Award-winning director will ask a judge Tuesday to put the matter to rest once and for all.

Lawyers Douglas Dalton and Chad Hummel last month filed a 239-page dismissal "request," citing allegations brought to light in the documentary "Roman Polanski: Wanted and Desired." The documentary was first broadcast in June on HBO, which shares a corporate parent with CNN.

The court filing alleges that a meddling prosecutor who believed Polanski should be behind bars improperly influenced a judge to ignore the terms of a plea bargain, as well as the wishes of the district attorney's office, the probation officer and the victim. None of them wanted Polanski to serve jail time.

Polanski's attorneys back up the allegation with a DVD of the documentary, a script, a copy of Polanski's 1977 pre-sentencing report and various court transcripts, interviews and declarations.

They paint a picture of backroom conversations between a prosecutor itching for a piece of the case and a judge so image conscious that he kept a scrapbook of media clippings, asked lawyers to "stage" Polanski's sentencing hearing and feared criticism if he didn't send the director to prison.

Possible Gender Discrimination in Statutory Rape Charges

The Massachusetts Supreme Judicial Court has issued a ruling discussing why a 14 year old boy who was accused of statutory rape was charged, but not the three under-aged girls with whom he allegedly had sex. The opinion (available here) suggests that the prosecutor may have discriminated against the boy on the basis of his gender. From the Boston Globe.

A sharply divided Supreme Judicial Court said yesterday that a 14-year-old boy accused of statutory rape may have been a victim of gender discrimination because authorities charged him and not the three underage girls with whom he allegedly had sex.

The case, which originated in Plymouth County, involved a high school freshman football player who is accused of engaging in various sex acts from August to October 2007 with three girls. Two were 12, and the other was 11.

"None of the complainants reported being afraid of the boy's behavior," Chief Justice Margaret Marshall wrote for the majority. "Indeed, sexual behavior seemed to melt seamlessly into games of 'manhunt,' 'truth or dare,' and 'making out.' Some of it occurred with more than one complainant present."

The SJC issued its order in the case last fall and released the written opinion yesterday.

In its 3-to-2 ruling, the majority emphasized that statutory rape laws, which once exclusively protected girls, are now gender-neutral. The boy, the court said, has a constitutional right to see if Plymouth District Attorney Timothy J. Cruz's office discriminates against boys when prosecuting statutory rape cases.

The state's statutory rape laws say it is a crime for anyone of any gender under the age of 16 to have sex.

Of course, Massachusetts could have easily solved the problem by having a difference in age element as most states do.

H/T: How Appealing.

Fourth Circuit: Statutory Rape Not a "Violent Felony" Under ACCA

The Fourth Circuit, in United States v. Thornton, No. 08-4251, 2009 U.S. App. LEXIS 1988 (4th Cir. Feb. 3, 2009), held that Virginia's statutory rape offense is not a "violent felony" under the Armed Career Criminal Act in light of the U.S. Supreme Court's recent decision in Begay v. United States, 128 S. Ct. 1581 (2008). You can read the opinion here. From the opinion:

A jury convicted Michael Ray Thornton of possessing a firearm and body armor in violation of 18 U.S.C. §§ 922(g)(1) and 931.  During his sentencing, the district court classified Thornton as an armed career criminal subject to a sentence enhancement based in part on a 1986 statutory rape conviction. At issue on appeal is whether Virginia’s statutory rape offense, which makes it a crime to "carnally know[ ], without the use of force, a child" between thirteen and fifteen years of age, is a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B). Because we find that Virginia’s carnal knowledge offense does not constitute a violent felony under the ACCA as interpreted by Begay v. United States, 128 S. Ct. 1581 (2008), we are constrained to reverse....

Under Begay, Virginia’s carnal knowledge offense is not sufficiently similar to the enumerated crimes in kind or in degree of risk to constitute a violent felony. We reverse the district court’s opinion, vacate Thornton’s sentence, and remand for sentencing consistent with this opinion.

H/T: Sentencing Law & Policy.