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Without her consent

Here's a pretty old post from the blog archives of Geekery Today; it was written about 15 years ago, in 2009, on the World Wide Web.

Observed in the midst of Jeff Fecke’s post at Alas, A Blog, which is otherwise mostly quite good, on media responses to the recent arrest of child rapist film director Roman Polanski:

Many, many articles cited the fact that the victim, now grown up and 45 years old, has said she wants the case to be let go, because each time it gets dredged up it brings up painful memories of her being raped. I choose the Telegraph because its headline puts the word victim in scare quotes, because...something:

In January, [the victim]1 filed a legal declaration in Los Angeles formally requesting that the outstanding charges against Polanski be withdrawn.

She said Los Angeles prosecutors' insistence that Polanski must return to the United States before dismissal of the case could be considered as a "cruel joke being played on me".

She also voiced anger that authorities had detailed her grand jury testimony in related hearings to the case.

"True as they may be, the continued publication of those details causes harm to me, my beloved husband, my three children and my mother," she said, adding that it was time for closure.

"I have survived, indeed prevailed, against whatever harm Mr Polanski may have caused me as a child," she said. Polanski had taken flight, she said, "because the judicial system did not work."

— Jeff Fecke, Alas, A Blog (2009-09-28): Rape Apologists: Roman Polanski's Rape of a Child Not That Bad

Jeff’s reply:

I understand the victim's feelings on this. And I sympathize, I do. But for good or ill, the justice system doesn't work on behalf of victims; it works on behalf of justice. …

— Jeff Fecke, Alas, A Blog (2009-09-28): Rape Apologists: Roman Polanski's Rape of a Child Not That Bad

No doubt.

And that’s exactly why 90% of rapes still go unreported.

Because the government court systems which rape survivors are expected to go through, if they report the crimes committed against them, are deliberately unresponsive to women’s wishes, take control out of women’s hands, and do it all because they believe that there is some kind of justice that can be gained independently of, or even in direct violation of, the wishes of the victim for safety and restitution for past wrongs. That, in the alleged interests of society (which, typically, means the interests of the state, or, even more typically, the ambitions of the prosecutor), are willing to go on with the prosecution of a woman’s rape, whether or not she wants them to, and even if she publicly states that the government’s prosecution is proceeding against her will, out of her control, and it will hurt her for it to continue.

When the justice system doesn’t work on behalf of victims, the justice system is an asshole.

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  1. Neverfox


    You make a strong point here and I had not fully thought of it this way. However, my initial reaction was very different when I was trying to analyze the matter from another angle. Let me lay out where my analysis took me and hopefully get your feedback.

    I think what complicates the question of how a rape should be prosecuted is that I’m not so sure that we should isolate the incident and assume that the behavior doesn’t represent an ongoing threat to other women. Further, I’m not so sure that coming to this conclusion is necessarily a collectivist or statist fiction about “society” but could be derived, with certain assumptions, from individualist libertarian first principles.

    As Dr. Long points out, aggression includes the threat of the initiation of force, not just force itself. If we believe that, then the question becomes does committing the act of rape somehow create a standing presumption of threat (e.g. “once a rapist, always a rapist”)? Following this through, it seems that one could reach the conclusion that the (original) victim’s feelings are relevant only to the aggression as it pertains to her but are not relevant to the threat of aggression as it pertains to others.

    In this manner of logic, what at first would seem like a collectivist, alleged interests of “society” style of thinking is actually just an aggregation of individualist thinking derived from the libertarian allowance for the use of self-defense against threats.

    Now, there are a few complications, not the least of which are your consequentialist considerations for under-reporting. First, the burden of proof is high and so is the risk of abuse. It would be extremely easy to overindulge the use of “threat” as we see all the time. But we also can’t throw it out entirely because that would lead to bizarre commitments in individual cases of self-defense. Also, it requires believing that past actions are indicative of future actions where we might want to adopt a different rule for defining threat that is more immediate. If we do that, the it shifts quickly to a more case-by-case basis.

    But let’s take a different example that removes the variable of the victim’s wishes to see if we can prime our intuition. What if Polanski had killed the girl instead and that she had no family or agents coming forward on her behalf. What is the libertarian response to Polanski’s crime? If we abandon the consideration of threat to others, that seems to result in him walking away completely free of response. Yet, if we act through restraint (jail or ostracism etc.), then we seem to arrive at a response that you might describe as only in the “alleged interests of ‘society'”.

    Is there a conundrum here? Do you think it’s a matter of weighing the various deontological and consequentialist considerations as well as the immediate victims vs. threatened victims? Does this analysis make a mistake anywhere and, if not, how do you think it should apply in the Polanski case?

  2. Neverfox

    One more question: when you say “proceeding against her will, out of her control, and it will hurt her for it to continue”, are you saying that continuing with the prosecution counts as a violation of non-aggression or a violation of non-harm?

    Non-aggression Principle: Avoid invading anybody’s person or property.

    Non-harm Principle: Avoid making anybody worse off.

    I can certainly see how she should not be forced to participate in the prosecution, but on what grounds can she object to the continuance of the prosecution under non-aggression? Many things in like proceed in ways that we’d rather they not (for example, you might open up a competing firm and take business from me) but I’m trying to understand the moral obligation that the prosecution has to the victim beyond not forcing her person to participate and are they responsible for the indirect exposure she might have through the media coverage etc.?

    One way I can see the solution being similar to yours is if the moral weight of the harm to the original victim outweighed the moral weight of the threats of aggression to others (which might be small, especially when considering the need for more immediate indications of intended violence).

  3. LadyVetinari

    No, you have it exactly backwards. Your attitude, when taken seriously (and it often is), causes more rapes to be unreported–because rapists can often and easily pressure their victims to “forgive” them, or “move on,” rather than seeking restorative or retributive justice or deterrence of any type. There is tremendous pressure on women to ‘forgive,’ especially in sexual assault cases. If we allow victims’ wishes to dictate the course of rape prosecutions, rapists and their enablers will have even more incentive to bully their victims into saying they don’t want prosecutions, that they’ve “forgiven”. If a victim insists otherwise, she’s a vindictive bitch, a bad Christian, bitter, unable to “heal” and “move on,” an unforgiving spiteful hateful etc. etc. etc…which is precisely what people would be calling Polanski’s victim if she was pushing for him to get jail time.

  4. Drunkenatheist

    “No, you have it exactly backwards.”

    No, Radgeek doesn’t.

    “If we allow victims’ wishes to dictate the course of rape prosecutions, rapists and their enablers will have even more incentive to bully their victims into saying they don’t want prosecutions, that they’ve “forgiven”.”

    So then, what you’re saying is that the American justice system is less about justice, rehabilitation, or making people pay a debt to society (and their victims) and more about stubborn pigheadedness.

    It’s funny. Your response reads like Radgeek was saying that no rape victim should be allowed to press charges against hir attacker; on the contrary, he was referring to one specific instance in which allowing her wishes to be listened to and respected might actually help return autonomy to her. Instead, we – as a society – sit here and continue to remove the victim’s autonomy and free choice under the guise of her free choice being removed from her. It’s also rather interesting that someone responding on a libertarian blog (who is presumably a libertarian, though I obviously don’t you from a hole in the ground) would advocate for the state to step in despite the fact that the victim and perpetrator have worked things out.

    Doesn’t all of that seem a little hypocritical?

  5. LadyVetinari

    I’m not a libertarian, because being a libertarian would mean that I’d have to accept the deeply silly assumption that if rape victims (who are and have historically been under all kinds of pressure from their perpetrators, their families and their societies to say that they’ve forgiven their rapists or to recant their accusations of rape entirely) say they’ve “moved on” or “forgiven,” that means the victim and perpetrator have “worked things out” and the state shouldn’t step in. That assumption would lead to letting even more rapists and child molesters–particularly the latter–out on the streets than we currently have, because rapists and child molesters are usually acquaintances or even family of the victim, or (as in this case) much more powerful than the victim and capable of smearing her in the public eye for years, as Polanski did to this woman. If the victim gets to decide, it’s far too easy for a rapist to browbeat a victim into recanting or not pressing charges. Polanski smeared this woman for years and she doesn’t want the press and his apologists hounding her–a perfect illustration of how a rapist can threaten and hurt his victim even after the rape.

    I wonder if you would be so respectful of the victim’s “free choice” if she wanted her rapist dead, or castrated. I suspect Polanski’s defenders wouldn’t be so thrilled about letting the victim’s wishes dictate in that case.

  6. Gabriel

    I think that’s a bit too far Lady V. Likely, the reason she and many other women want to “move on” is because they know they are not going to get justice from the bloated court system. This is not Ahfghanistan and we certainly shouldn’t expect a just society to feature women meekly submitting to rapists. However, this doesn’t mean mutilating rapists is just either.

  7. Micha Ghertner

    Lady V.,

    I don’t think you have to be a libertarian to accept the force of Radgeek’s arguments (nor do all libertarians agree with Radgeek’s argument). You are right that placing all of the power in the hands of the victim may make it more likely that the victim’s abusers will attempt to pressure the victim into not pressing charges. On the other hand, policies like mandatory arrest and prosecution in domestic violence cases often discourage women from coming forward. I’m not sure which of these forces is more powerful or deserves more concern; it seems like an empirical question to me.

    As I wrote in an article a few years ago,

    Just as economists recognized how paternalism can lead to unintended and undesirable consequences, so too, lawyers, therapists, and social workers are beginning to recognize some of the unintended consequences of mandatory arrest and prosecution in domestic violence cases. As Linda G. Mills, a professor of law and social work at New York University, argues in her recent book, Insult to Injury: Rethinking our Responses to Intimate Abuse, these policies disempower women by depriving them of any say in the handling of their cases, further degrading them as weak, ineffectual pawns in the maintenance of their own lives. Even more disturbing, policies of mandatory arrest and prosecution can discourage women from coming forward. Mills estimates that “as many as half of women in abusive relationships stay in them for strong cultural, economic, religious, or emotional reasons.” Women are less likely to come forward and get help for their abuse if they know that doing so will lead to the arrest and prosecution of someone they still care deeply about. Instead of helping people who presumably can’t help themselves, paternalistic laws aimed at domestic abuse can add insult to injury by hurting the very people they were intended to help.
  8. JOR

    “If the victim gets to decide, it’s far too easy for a rapist to browbeat a victim into recanting or not pressing charges.”

    But we have a system where the victim doesn’t really get to decide much of anything, and they do that anyway…..

  9. Robert Hutchinson

    I don’t agree with the flat statement of “the victim’s wishes are trumped by the need for the state to mete out its own justice”, which I’ve seen many places in the past week. And if Polanski had fled before being charged, or brought into court, I would have to side with the victim wanting to have the entire matter dropped (assuming that would still be the case).

    But I’m not sure how to integrate into that Polanski already confessing and being convicted, then running away before his entire sentence had been served, or how seriously to take the idea of being a “fugitive from justice” as a crime in and of itself.

  10. Gabriel

    I’m not sure if it’s true or not, but supposedly he agreed to a plea bargain and at the last minute was told the judge intended to not honor the plea bargain and sentence him to 50 years no matter what.

  11. Robert Hutchinson

    From what I understand, plea bargains are only agreements between the prosecution and the defense, and while judges go along with them in most cases, they are not required to (and Polanski was made aware of that possibility). Also, I believe the maximum sentence possible was 20 years.

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