Should the law still seek and prosecute people for crimes committed a long time ago? Let us first clarify one thing about the case of Roman Polanski: the film director was convicted of a crime, and skipped the jurisdiction before he could be made to pay the penalty for it. His is not a case where it is still moot whether he committed a crime or not: he pleaded guilty. Nor therefore is it a case where a “statute of limitations” might apply, that is, a statute saying that a prosecution can only be brought against a person within a certain period after a crime occurred.
In any case, statutes of limitations generally only apply to lesser crimes, called “misdemeanours” or summary offences, as opposed to more serious “felonies” or indictable offences. Polanski pleaded guilty to a felony, namely, the statutory rape of a 13-year-old girl. He is, in effect, an escaped prisoner who has not paid the penalty for a serious crime.
But the Polanski arrest prompts us to revisit the question of the passage of time and the execution of justice, especially as most people seem to think that Polanski’s offence was committed so long ago, and he has made so many valuable cultural contributions since, that the matter should be dropped. What use, they ask, would it do now to send him to prison? Is it even fair, after all this time?
As so often in thinking about such matters, the answer is that it depends on the nature of the case. Few people would be inclined to forgive and forget in the case of Nazi SS officers who committed atrocities during the Second World War. If a former Nazi mass murderer is found, he is arrested and prosecuted no matter what his age and condition of health. Why? Because the Nazi crimes are the kind that we cannot forgive, and we try to prevent them happening again by stating clearly that perpetrators of them will never be safe from prosecution: for such crimes there is no forgetting, no time limit and no hiding place.
The point is that prosecuting such crimes has a point and purpose now and for the future. It is a matter quite independent of how long ago the crimes were committed. We prosecute and punish in order to maintain our determination not to countenance such crimes. Part of the intention is to make permanent liability to prosecution a deterrent.
This applies to all serious crimes. Rape, murder, child abuse, genocide and crimes against humanity are too serious to allow the mere passage of time to weaken a society’s stand against them. It would be a mistake to see this as an austere refusal to be forgiving. We should indeed be far more forgiving as a society about many more things. We have too many categories of crime now, we have far too many people in prison, and society is far too unforgiving of things that should not be crimes at all: the example of using the criminal law to deal with drugs and prostitution is a glaring case in point.
But for serious crimes against the person — rape, murder, genocide — there is every justification for a robust and unyielding refusal to let anyone ever escape punishment for them. This holds even when the victims of such crimes, long afterwards, say that they no longer wish to see the perpetrator punished. In their kind and forgiving attitude towards the criminal, they inadvertently forgive the crime; that is something society should not do.
When it is unlikely that the perpetrator of a past crime will reoffend, when social attitudes have changed towards what was once regarded as a crime (such as homosexual practices), or when time has effaced or remedied whatever harm was done by a crime in the past, there is a case for forgiving and forgetting. An old man is unlikely to repeat the follies of youth; it would be wrong to pursue a seventy-year-old for a charge of assault and battery laid when he was aged 20. But if the seventy-year-old was found by DNA evidence to have committed a rape or a murder at age 20, he should most certainly be held to account.
Once again, the point is only partly to punish the perpetrator himself; it is as important to signal the continued resolution of society that there will be no hiding place — not even advanced age — for those who do serious harm to others.
The same principle should also, and for the same reason, apply to tyrants who commit crimes against humanity in their own countries. They should be afraid to set foot across their borders, knowing that the rest of the world will pounce on them and prosecute them. General Pinochet escaped justice by the subterfuge of claiming ill health, but not even that should have prevented prosecution: it is the crime as much as the criminal that matters.
It is easy for people to be swayed by considerations of personality in such cases as the Polanski arrest. In general the law does well if it addresses itself to individuals and their circumstances rather than imposing rigid blanket laws that contradict justice as often as they serve it, precisely because they ignore the special individual circumstances. But with the great crimes of rape, murder and genocide, prosecution and punishment are about society’s struggle to protect itself now and in the future against the worst aspects of its own members’ behaviour. There is room for a degree of compassion towards prisoners even if they have committed monstrous crimes, but there is no room for failing to punish the crime itself.
In line with these thoughts, and with the regret that comes from having to acknowledge yet set aside two things, namely the existence of human frailty and the contribution gifted individuals such as Roman Polanski make to society, I conclude that it is right that the United States authorities are seeking to extradite him to serve his sentence for rape. Neither fame nor wealth, neither time nor distance, should render anyone immune to laws protecting against serious crimes against other human beings.
A. C. Grayling, Professor of Philosophy at Birkbeck, University of London.