I was intrigued to find out from today’s New York Times (Michael Cieply, “In Polanski case, a time warp”) that a report by two probation officers who, in 1977, made a recommendation against a longer gaol term (as compared to the 48 days he got) in Polanski’s case of unlawful sex with a 13-year-old, they made the argument that while foreign filmmakers “enrich[ed] the community with their presence, they have brought with them the manners and mores of their native lands, which in rare instances have been at variance with those of their adoptive land.” Implicitly, they were making a cultural argument in favour of a lenient sentence.
These days, the cultural defense is often used in sex crime cases of non-European migrants (it is rarely successful in Europe, more often so in the U.S.), and it tends to be forgotten that thirty years ago it was applied to South and East Europeans. Overall, cultural arguments in such cases have become more explicitly articulated, both by defense and prosecution (and especially in public debates).
At the same time, attitudes towards child-rearing, the agency of children and the adult-child relationship, and the biological versus moral determination of sexual behaviour have changed in complex ways. These days, children are seen as being endowed with more rights, yet, as the article points out, they are given less voice in legal deliberations because of the assumption that they must be protected. It seems that the biopolitics of childhood has become more strongly entrenched because it is harder to find an interpretive framework for the ambiguities of individual cases (that is, the difficult questions of free will and choice) when they involve individuals coming from different societies, as they increasingly do.
It seems that the most successful weapon to deploy against the schematicism of this biopolitics is an equally schematic politics of culture. Thus, in a case reported by Alison Dundes Renteln in her book The Cultural Defense, an Afghan father in the U.S. was put on trial for kissing his infant son’s penis. He would have likely faced a harsher sentence than Polanski had the defense not mobilised an anthropologist to testify that such behaviour was a culturally appropriate expression of affection.