September 29, 2009

Does Genius Excuse Crime? Another Angle on the Polanski Case

Writing about web page http://www.guardian.co.uk/film/2009/sep/28/roman-polanski-french-government

The celebrated and notorious film-maker Roman Polanski has been re-arrested in Zurich for having sexually abused a drugged-out 13-year old girl 32 years ago in the United States, a crime for which he was convicted but he skipped the country before serving time. Nobody has denied that the criminal act occurred. The question is what to make of it now. What is striking is that the artistic community across the world has been virtually unanimous in calling for Polanski’s release, whereas virtually everyone else (though not the victim) wants him to pay for his crime – if not more.

What accounts for this vast difference in sentiment? Well, Polanski is a genius! Let’s assume that this claim is not only true but also relevant to judging his case. How would it be relevant? From his artistic defenders, you might think it has something to do with the quality of his cinematic output. Perhaps we’re supposed to think that Polanski served his prison time by creating great art, which more than makes up for the original heinous act: Community service on a grand scale, if you will.

The only – but crucial – difference, of course, is that Polanski wasn’t coerced by the legal system to create this great art. He just happened to luck out in being that sort of artist. A porn film producer who committed a comparable act, even if his films had bigger box office takings than Polanski’s, would not enjoy comparable sympathy. The late ethicist Bernard Williams, who popularized the phrase ‘moral luck’, actually justified this way of looking at things that would now keep Polanski out of prison.

However, that can’t be right. Is genius nothing but a kind of miracle? On the contrary, I think ‘genius’ should be treated much more literally. After all, ‘genius’ refers primarily to the artist’s state of mind, not his or her output. In cases like Polanski’s, it makes most sense as the flipside of mental deficiency, possessors of which are also often given leniency in rape cases, either because one was too dumb or too crazy to have a fully functioning moral compass -- to put not too fine point on it. But of course one needs to prove mental deficiency in court, which is not always easy. But why not the same for genius? Polanski’s defenders should welcome the opportunity to have his genius demonstrated in a courtroom through a variety of expert witnesses who could testify, in the face of cross-examination, to the necessity of his particular pattern of personal behavior to the quality of art that he has created. Still, just as insanity defenses don't always work in particular cases, neither might the genius defense. 

We don’t have mental deficiency – whether of the cognitive or psychiatric variety – decided by a self-recognized class of ‘deficients’ for legal purposes. So why then allow it for claims of genius, even though that is what much of the artistic community who recognizes Polanski as one of their own seems to wish?


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  1. Chris Dornan

    I have seen some philosophical blogs explaining why Polanski shouldn’t get a pass and the whole issue has been so straightforward that I haven’t-until now-bothered giving it a second thought.

    The reason the artistic community want him spared is that he is one of them. Our enlightened ethics are sentimental-i.e., irrational. Decide what you want and then rationalise it. I think this accounts for why geniuses should also be exempt-the guy who came up with it was obviously a genius, right.

    Does this blog have an RSS feed? (I won’t be able to track it otherwise.)

    29 Sep 2009, 23:53

  2. Chris Dornan

    OK I have found the RSS feed-on home page, bottom of the left-hand column.

    30 Sep 2009, 00:09

  3. Steve Fuller

    Actually, my point is that the genius defense should be taken seriously as a matter to be decided by independent legal means—i.e. NOT simply by letting geniuses pick themselves. In that way, ‘genius’ will not stand outside the law but will be incorporated in it.

    30 Sep 2009, 00:33

  4. Michael Merrifield

    What a load of twaddle! Why on Earth should Polanski’s talent at making films have any more bearing on the appropriateness of punishing him for the rape of a child than if he were the World Tetris champion, or able to recite pi to ten thousand places? Perhaps you could argue that genius and mental deficiency are closely related, but even then the point you would have to demonstrate in court would be that the man was mentally deficient—whether or not it was related to genius is entirely irrelevant.

    In any case, the issue here is not whether Polanski should be convicted: he already has been. The issue is whether a man convicted of a particularly nasty crime of child abuse should be allowed to escape punishment (a) because he is famous with influential friends, and (b) because he has managed to further break the law by evading justice for many years. It doesn’t seem a particularly intellectually-challenging question to me.

    30 Sep 2009, 14:37

  5. Steve Fuller

    I despair! I am actually not trying to defend, let alone exonerate, Polanski. I simply want to give his artistic defenders a run for their money in the courtroom. I’d like them to prove genius and show how it constitutes a mitiigating factor in the case. This doesn’t mean they will succeed or even that I would want them to succeed. But it would at least force them to put their money where their mouths are, rather than leaving it as it now stands, with one side saying “he’s a genius inspite of being rapist” and the other saying “he’s a rapist inspite of being a genius”. What I really object to here is (a) the legal untestability of attributiions of genius to particular individuals and (b) the conceptual unclarity of how someone in a ‘genius’ state of mind can be effectively in a state of diminished responsibility with regard to rape. These matters will never be resolved unless one calls the bluff of Polanski’s artistic defenders

    30 Sep 2009, 21:06

  6. Michael Merrifield

    The problem is that by “calling their bluff,” you dignify this twaddle with the attribute of being in any way relevant to the legal case. There are, indeed, probably geniuses who are mentally defective. There may even be a higher level of mental deficiency in geniuses than normal people. However, the legal defence remains that of diminished responsibility on the grounds of mental incapacity, and establishing whether or not Polanski is a genius does not establish mental incapacity.

    I would also reiterate that the issue here is not ascertaining Polanski’s guilt: he pled guilty and has been convicted. The issue is whether he should be excused punishment for any reason. Being a genius, even if you accept that his particular flare for arthouse pretension is genius, is not such a reason.

    01 Oct 2009, 09:41

  7. Very interesting blog. If I might suggest another angle to the question of the importance of genius, there’s an issue of time and perceived contemporary cultural relevance that bears interestingly on the case.

    If there were to be any kind of genuine argument for an artist receiving leniency in matters of law (which I very much don’t believe there should be), it would have to centre round the potential impact on art itself. If James Cameron, for example, was dragged off the set of Avatar for having committed a crime, the industry would be in uproar because a film expected to change cinema as we know it would now not be completed. Art itself would suffer. Arguments along these lines occasionally surface with Amy Winehouse, Pete Doherty et. al. – the idea that to throw away the key on artists who are, for better or worse, having a major current impact on the direction of popular music, would be to adversely affect the entire field.

    Yet there seems to me to be a sense that, once an artist has passed their cultural moment, once their work is no longer the driving force behind current developments, there is a point at which the balance tips back the other way and it is accepted that their contribution to the ‘greater good’ of art is not sufficient to warrant immunity from law. Hence the amount of washed up stars who turn up in court on petty charges. George Michael probably did whatever he wanted during the heyday of Wham with no repercussions; more recently, in charges of decency, he’s treated like a normal human being (except the incident makes the glossies as well as the news).

    In Polanski’s case, is ‘genius’ the correct term? Or did he just have a very good heyday? I’m only aware of one important film he’s made since his ‘exile’, The Pianist. Is he going to make another Chinatown, another Pianist, another Rosemary’s Baby? Or is Hollywood, an institution very concerned with its own past, just trying to preserve yet another piece of its history.

    I’m not in favour of Polanski (or, indeed, any artist/celebrity) being accorded any kind of special privilege in matters of law. However, the question I’m raising makes a big difference to the case of his defenders: do they want to keep him out of prison because of what he’s potentially going to do, or just because of what he once achieved? If the former, the case is very shaky; if the latter, I don’t see how it’s got a leg to stand on.

    01 Oct 2009, 10:49

  8. Steve Fuller

    This is to Michael Merrified, one last try: The Polanski case is only a pretext here. How the actual case is disposed will probably depend on quite technical legal matters about extradition treaties, statute of limitations, etc. that probably have little to do with 99% of what people on the internet have been talking about, most of which have dealt with more general, principled matters about such cases. After all, his is neither the first nor the last of its kind. In particular, the genius defence comes up time and again. You might call it ‘twaddle’ but that’s not so obvious to me. In fact, what I’ve been suggesting – and perhaps this hasn’t got across either – is that for genius to count as a mitigating factor in, say, a rape case, it has to be seen as, in some sense, LITERALLY a mental incapacity – in that compels one to experience life at the extremes. I do not say I personally endorse this view, let alone would apply it to Polanski, but it is worth taking seriously as something that courts might formally assess.

    01 Oct 2009, 11:53

  9. Michael Merrifield

    Then in what way is an artist different from a scientist? Or maybe an inventor? Or a great sportsman? Or a brilliant comedian? Indeed, anyone who would have made a contribution to society if not cut off in their prime for raping a child?

    And where do you want to draw the line? All of us, hopefully, contribute to society at some level, so for whom do you take this into consideration?

    By its very nature, genius is unpredictable, and a vast swathe of people could claim that they might be about to have a flash of brilliance in the years that are being taken away from them. Which ones do we believe? Who are the experts to whom we turn? Almost by definition, anyone who claims they can forecast who will be a genius is a charlatan.

    It is a complete nonsense to even consider it, and, as I said, dignifies an excuse for a particularly nasty crime as a way of obfuscating the fact that this man has not been punished for raping a child, and he should be.

    01 Oct 2009, 11:54

  10. Michael Merrifield

    “it has to be seen as, in some sense, LITERALLY a mental incapacity – in that compels one to experience life at the extremes.”

    But that’s not a “genius” defence—that’s a mental incapacity defence. Surely, there are geniuses who do not suffer from this incapacity, and people who suffer from the incapacity who are not geniuses. Thus, even if you could establish whether someone was a genius, you would not have established that they were mentally incapable, and hence the defence fails. All you could hope to do by throwing around the term would be to try to dazzle a starstruck jury, and hopefully no judge anywhere would stand for that kind of nonsense.

    01 Oct 2009, 11:59

  11. May I suggest you look up what statute of limitations actually are. They do not apply here since Polanski had already been charged and fled before sentencing. Despite what the artistic talking heads have been trying to claim with waffle, obfuscation and outright lies. Directing great movies shouldn’t be a mitigating factor in a case any more than making terrible movies should see you receive the death penalty for a parking ticket. It’s all completely irrelevent to the case and the point of the criminal justice system which is to protect the public and punish those who have been found guilty of committing a crime. Unless you can show me that being artistically gifted makes you less likely to reoffend then it shouldn’t be taken into account. The (members supporting Polanski in the) art community don’t care about any of this and want to see Polanski free and are willing to use any outright lies to see this through. The French authorities who protected him all this time should be ashamed of themselves too.

    So to answer the question posed originally, no, genius does not excuse crime. Period.

    10 Oct 2009, 20:36

  12. Steve Fuller

    To Damien Jones: I frankly don’t care about the motives of Polanski’s artistic defenders. I’m more interested in the principle that they might be defending, and then whether it is legally defensible. If you are not willing to engage in that sort of abstraction, then there is nothing to discuss. But assuming your willingness, we already mitigate criminality on the basis of mental state, and my point is why not add ‘genius’ to idiocy and insanity. Were we to do so, that would still leave open the question of whether Polanski is a genius. He might well fail that test, and his defenders would be defeated on their own grounds.

    10 Oct 2009, 23:33

  13. Michael Merrifield

    Surely, the reason that this is a daft suggestion is that there is no more reason to believe that genius, whatever that may mean, renders someone incapable of knowing right from wrong, than there is that left handed people cannot draw such a distinction.

    While there may well be some idiots savants out there who display both genius and mental deficiency, there are also plenty of very well adjusted geniuses, which pretty much rules it out as a defence.

    10 Nov 2009, 17:55

  14. Jeremy Bowman

    Many people who defend Polanski do not do so on the grounds that he is a genius, but because there was a plea-bargain which the “showbiz” judge reneged on.

    It is a “borderline” case, given the circumstances.

    Burke: “Circumstances give in reality to every political principle its distinguishing color and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind.”

    LP Hartley: “The past is a foreign country. They do things differently there.”

    11 Nov 2009, 08:16

  15. Nancy Drew

    Two possible mitigating factors: Polanski’s mother was killed in a Nazi gas chamber, and his pregnant wife killed by the Manson family. Maybe, instead of a genius defense, the defense could be “skewed world view” with regard to your so-called moral luck. One need look no further than Chinatown and Rosemary’s Baby to see that Polanski perhaps sees evil forces ranging against him, which might account for his “mental deficiency.”

    14 Nov 2009, 09:59


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