Tuesday, September 29, 2009

People v. Thompson (Cal. Ct. App. - Sept. 29, 2009)

I mention this one if only because the concurrence written by Justice Graham -- a retired judge from Marin sitting by designation -- seems particular timely in light of current events.

Justice Graham writes separately solely to write three pages excoriating prior authority that uses the term "voluntary" to describe non-forced sexual interaction between a minor and an adult. Or, at Justice Graham puts it: "The fact that one class of sexual prohibitions is based upon the age of the victims and another is based upon the use of force and violence by the perpetrator does not make sex crimes against children who do not resist ―voluntary. A legal culture which can devote millions of pages to examination of the voluntariness of searches, confessions and criminal pleas can surely afford a little care and ink to avoid confusing and diluting the moral imperative to protect children from sexual predators." Or, to put it slightly differently, "'voluntary' oral copulation (or sex or sodomy) with a minor is an oxymoron" and shouldn't be used.

Personally, I think Justice Graham's point is a tiny bit overblown. We all know that "voluntary" in this context means "not-physically-coerced." The distinction between statutory and regular rape. Nonetheless, Justice Graham is sufficiently worked up about it -- and for reason, I might add -- that it bears mention.

Plus, I thought it was interesting that this concurrence was published at the same time as the whole Roman Polanski extradition thing. Neat coincidence, and good timing for Justice Graham.

Coincidentally, I was reading earlier today an interesting article from Salon ("Reminder: Roman Polanski Raped a Child") [Hat Tip to my colleagues at The Right Coast] as well as the transcript of the victim's grand jury testimony in that case (first half here and second half here). I heartily recommend both. With the warning that they're pretty graphic and not likely to make one very inclined to be sympathetic towards Polanski. Even if you're not Justice Graham. Whose opinion on the subject I can probably already figure out without asking.

P.S. - For some reason, I was especially struck by page 10 of the second part of the transcript, lines 12-13. Where the victim says "then he went down and starting performing cuddliness." That the victim still thought, even at the grand jury, that the relevant word was "cuddliness" rather than "cunnilingus" highlighted to me the age and inexperience of this young girl. (Put to another side the whole issue of Polanski's alleged coercive vaginal and anal rape, which need not have anything at all to do with the age of the victim.)