Tuesday, October 13, 2009

Polanski and Journalistic Standards


Unsurprisingly, the cinematic community has come out in strong support of Roman Polanski, typically invoking--like the French culture minister before them--his status as a great artist as if it granted him some form of legal immunity. Debra Winger, a judge at the film festival in Zurich that Polanski was planning to attend, called out the Swiss government for its "philistine collusion" in apprehending the fugitive, arguing that "This fledgling festival has been unfairly exploited and whenever this happens the whole art world suffers," which will doubtless come as news to a great number of nonsuffering art-worlders.

Whoopie Goldberg made the point (repeatedly) that this case is not about "rape rape," which is legally true--Polanski plea bargained the initial charges down to unlawful sexual intercourse with a minor in exchange for his confession. But setting the legal mechanics aside, Polanski furnished a 13-year-old with alcohol and a quaalude, repeatedly pressed to take her clothes off, pursued her from room to room through the house despite her protestations that she wanted to go home, and ultimately had vaginal and anal intercourse with her, despite her having pleaded "no" every step of the way. (The Smoking Gun has the original, appalling court testimony here.) If this does not constitute "rape rape," I hope Goldberg will clarify what would.

Today, Martin Scorsese and David Lynch also added their names to those of sixty-odd other cinematic luminaries who've signed a petition calling for Polanski's immediate release. But the award for complete lack of self-awareness has to go to another new signee who placed his moral capital in such matters on the table today as well: Woody Allen.

Update: Commenter jhildner rightly points out that I should have clarified that my description of the crime, contra Goldberg, was based on the victim's grand jury testimony. I don't believe Polanski has ever contested it very vigorously--he said she agreed to the sex and added, charmingly, that she was "not unresponsive"--but I don't know which details, if any, Polanski had to confirm as part of his guilty plea.


Chris, I'm with you generally, and I certainly don't want to add my list to the "Polanski defenders," but is it necessary to repeat the Gailey's grand jury testimony as though it were uncontested, incontrovertible fact? Why not say instead, "Gailey testfied to the grand jury that..." or "According to Gailey's grand jury testimony..." Also, I get tired of the Woody Allen business. It's not the same. He's apparently happily married.

The real issue isn't how rapey Polanski was. That was all dealt with in 1977, when the prosecutors agreed to a conviction on a lesser charge. Nor is the issue, on the other side, what the victim wants, which is to see him let go. ("He's suffered enough," she told an interviewer.) No, the real issue today is a straightforward one: Is Polanski above the law because he has made good movies? The answer is obviously no, and so he should pay his debt to society as anyone else would have to. No special favors for creative genius, money, connections, or anything else. That's a good principle to follow.


...Chris, I'm with you generally, and I certainly don't want to add my list to the "Polanski defenders," but is it necessary to repeat the Gailey's grand jury testimony as though it were uncontested, incontrovertible fact? Why not say instead, "Gailey testfied to the grand jury that..." or "According to Gailey's grand jury testimony..." Also, I get tired of the Woody Allen business. It's not the same. He's apparently happily married...

In my judgment it was not journalistically necessary for Orr to qualify his assertion of Polanski's drugging and sodomizing etc. of his victim with "according to her grand jury testimony" or some such. And it's a question of judgment not logic. For if we follow the *logic* of your complaint, we could never simply say "x murdered y" in a piece of journalism. We would have to say "a judge found", or " a jury found" etc. So the question becomes: when in journalism can we assert a journalistically fact without "according to"?

There are times and places of course when it’s a must to add "according to". But, to my mind, here, the girl's testimony, the eye witness and the guilty plea, even a plea down to a lesser charge in the circumstances, allowed Orr journalistically to say what he said Polanksi did without "according to". A legal fact finder's determination--especially as criminal trials go and with expensive defence lawyers (can we say in journalism O.J. murdered Nicole?)-- would not add greatly to a sound basis for Orr’s Polanski assertion, I'd argue.


The point of the post was to respond to Goldberg's characterization of the incident as not "rape rape." The details of the victim's allegations are what make it "rape rape." Polanski did not plead guilty to those all-important details nor do I believe that he has ever admitted that they are true. So, all we have to corroborate those details is the victim's testimony. (I'm not aware that an eye witness account corroborates them.)

Many are repeating those details as if they were supported by more than that, which is misleading, and makes a difference in how we view Polanski's conduct. Katha Pollitt, for example, has a column today in which those details are repeated after the word "Fact:" Then she says, disingenuously, that those details are undisputed, except by Polanski himself. In other words, they *are* disputed, and not in fact *supported* by anything other than the victim's testimony. I don't believe that a victim's allegation of "rape rape" should be presented as "fact" in any journalism simply because the allegation has been made and it's undisputed that the sex happened. Let me ask you this: If an accusation is all that's required, should the press have repeated the story of the Duke accuser as though it were fact? Should it aid what was later called a rush to accuse? The press is at its best when countering that sort of attitude -- not helping it along.

Yes, it is a judgment call, not dictated by bulletproof logic. I'm not a journalist, though I have had a few close encounters. I think that the profession would generally agree with me on this one. I believe that it's considered okay to say "x murdered y" *after a conviction*, and I think it is uncommon and undesirable to restate unproven or un-admitted or uncorroborated allegations of criminal conduct as fact. You know, given how many wrongful convictions there have been, I see nothing wrong with saying "x was convicted of murdering y," especially in straight news stories.

The real question for me is, "Is it clear from the story what's behind the representations being made?" When you read about these details, I think it's natural to wonder, "Well, are these details true?" It's also natural to wonder, "How do we know?" Some like Pollitt, in their zeal to condemn Polanski's defenders, obscure those two questions in order to beef up their point. It's not super honest. Erring on the side of actually attributing the facts to their source(s) as much as practically possible avoids that problem and prevents you from getting all overreachy.

I don't think constant, ubiquitous attribution is somehow weird or would make journalistic writing bizarre. In fact, it's the dominant mode of journalistic writing, even in opinion and feature pieces, when talking about non-obvious facts. Good writers make the attribution read naturally.


You make an excellent argument, the refutation of which may demand more specific knowledge of the facts of the case than I have. I’m not persuaded but the issue is closer for me than I thought.

I did read the girl’s grand jury testimony. It’s compelling: specific, concrete and consistent though admittedly not tested and only grand juryey.

I may be wrong about the eye witness. I thought there was one. I’m curious about any corroborating evidence—a vial of pills, the champagne bottle, any blood test of the girl, any blood or semen or marks, cuts or tears in her anus and such like.

You of course note the central distinction for our purposes: between what Polanski pleaded guilty to—statutory rape—for which consent is irrelevant and adult rape—“rape, rape”—for which lack of consent is an essential ingredient. I’ll here call the latter rape.

My main point is this: your argument turns on Polanski never having pleaded guilty to rape and never admitting it. And you assume he denies raping her—that her version is disputed. But is disputed? Has he denied it? (I note that he settled civilly with the victim later.) Any plea here of not guilty doesn’t mean too much in that regard, I’d argue, particularly considering that it was leverage for a plea deal.

I am not aware that ever he denied the girl’s evidence. If he did, especially relatively contemporaneously, but later too, I’d have more sympathy for -maybe join-your position. But absent that I don’t see how his silence on the issue raises a dispute in the world of life as opposed to a criminal or even a civil court.

And can’t we for our purposes distinguish the Duke “rape case” on this basis? There, there was an immediate and vigorous denial right from the get go, a vigorous defence throughout, and no plea to lesser charges. And in applying our judgment to whether to say “according to” here, I think that the history of wrongful convictions generally is beside the particular circumstances of what we are discussing.

I tend to agree with your observation that in their zeal to lambast the defenders and the Goldbergs there may be an ill considered rush to assert facts. But here, with some consideration, if the intervening years are not graced with Polanski’s denial, then with what surrounds this issue, including the sworn testimony, the guilty plea, the civil settlement, and for me-- coup de grace--the lack of a denial, I don’t see the need to say “according to”; and I don't see what's disputed--your main argument.

In these terms, I agree also, who wouldn’t?, with your assertion that “it is uncommon and undesirable to restate unproven or un-admitted or uncorroborated allegations of criminal conduct as fact.” As I say I just don’t have a problem with saying it about Polanski absent any denial by him.



Pollitt implied in her column that Polanski *had* disputed Gailey's account, because she wrote that Gailey's allegations were undisputed except by Polanski. A very quick Internet research effort on my part has failed to yield confirmation, or refuation, of that. So, I don't know. Perhaps Polanski's lawyer issued a statement of denial soon after charges were brought; perhaps not. I also don't know what else was presented to the grand jury. I haven't read about anything else.

I don't think that the presence of a denial -- vigorous, immediate, or otherwise -- should determine journalistic convention here. If the people accused of rape in the Duke case had decided to remain publicly silent -- as many accused of a crime do -- do you think that the press was thereby authorized to repeat the allegations as fact? I don't think so. The allegations would have remained, as I said, un-admitted, unproven, and uncorroborated. No, the press's job was to report that the woman had made x allegations. Your analysis has the reporter making a lot of fact-intensive, fuzzy decisions in order to determine when it is okay to pass judgment semantically.

But why insist on making that leap at all? Why not simply present the information?

So, suppose Polanski has never denied the allegations. Suppose further that he granted interviews in which he had the opportunity to deny them but did not. That's certainly a relevant fact that doesn't look good for him. Pollitt could have written the same exact column that she wrote, except instead of saying, "Fact: Polanski did all these bad things," she could have said something like, "These are the facts: The girl testified that Polanski did all these bad things. Polanski has never denied the girl's account, despite giving interviews to the press in which he talked about the crime." Because it was an opinion piece, she could have also opined on the credibility of Gailey's testimony.

All I'm saying is, Let's get straight what we know and how we know it. My version is more credible *and* more damning of Polanski than hers. Your arguments are for why, given the facts we know, we should consider Polanski guilty of ordinary -- not statutory -- rape. Reporters should present the facts so that we can make up our own minds as to how to view the thing. Columnists should also present the facts in the course of making their argument. It makes the argument better!

I also read the testimony, and I don't want to convey the impression that I didn't find it compelling or that I dismissed it as probably fabircated in some measure. If I had to guess based on the transcript, I would guess that her account was true. She gave details that simply don't seem made up. But that doesn't mean the press is authorized to likewise make that guess, hide the fact that it's a guess, and pretend instead that it's true like water is wet.


I don’t want to repeat myself unnecessarily.

And let’s for the sake of argument stipulate that Polanski has never publicly denied—from then to now, and not counting the original plea of not guilty to all counts— the allegations against him of non consensually having eaten the young girl out, and having fucked her front and back after giving her some part of a Quaalude and some champagne.

I agree with you that the lack of a denial—immediate, vigorous or otherwise— does not necessarily vouch for an admission or for lack of contention affecting journalistic standards. But, in these terms, Duke still remains an inapposite example. Even if the accuseds had remained publicly silent, they nonetheless defended the case. But shift the facts: they remain silent, make a plea deal and plead nolo contendere—a term we don’t use in Canada— and are convicted in the result and for doing so some counts are dropped simply for the sake of a bargain. And say there is untested but probative evidence supporting the dropped charges. On these supposes, the example starts to become more apposite.

The point about Polanski’s (stipulated here) denial, I contend, is that, as I have said, in all the surrounding circumstances one can reasonably journalistically infer lack of contention from his silence. And. again, my argument is that lack of contention can in some instances, such as with Polanski, dispense with "according to".

I welcome your example of Polanski granting interviews and never denying the allegations even when given a chance to. It's even stronger than my suggested stipulation that he simply never denied the allegations. Your example leads me to try and synthesize my arguments which go to two issues between us, the first a particular instance of the second: 1. what is so sacrosanct about a conviction (or a civil determination for that matter) at law that it dispenses with need to say “according to” in saying x did such and such; and 2. On what principle or criteria is a fact a fact journalistically? I don’t think the point is so much convention as it's standards, which convention may be rote for, and, even more, the thinking behind the standards.

I have tried to suggest before that it is hard for me to understand—given how contingent judicial fact finding is, what a fragile exercise it can be, how legal certitude can vary in different determinations with the quality of the evidence, say DNA matches compared to eye witness accounts (I have some read some on how shaky even things like fingerprint, hair and fiber analysis, once thought gold standards of proof, can be.)—why judicial determination dispenses with the need for “according to” but our stipulated Polansky active silence in its factual context does not.

That puzzlement merges with my concern over a kind of infinite regress with “according to”, which my example of criminal conviction was first meant to illustrate. My argument is that unless there is reason to doubt a judicial determination, say by the protest of the one who fares poorly under it, such determination allows one to say journalistically x did such and such, dispensing with “according to”. And to bring my argument to its where-I -began crescendo, protest over the judicial determination should, I would think, lead the journalist to say at minimum, “while convicted x still maintains his innocence” or whatever x maintains, while x’s silence obviates such needed qualification.

If we can look at non-contested judicial determinations as functionally satisfying the standards for journalistic facts—which standards I am admittedly nowhere articulating—then I am moved to think the a set of facts such as our stipulated Polanski’s will satisfy functionally the same principle or criteria with the functional cherry on the standards cake being his silence.

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