Ann Althouse discussed Kate Winslet's rejection of the term "statutory rape" for the relationship in The Reader (Winslet's new movie) between a woman in her mid-30s and a 15-year-old boy. As best I can tell, Althouse does take the view that the behavior is indeed properly labeled "statutory rape," both legally and morally....At the time, I wrote that I thought that Winslet's interviewer had probably used the term "to just mean sex with a person who is too young" and that "Winslet seemed obtusely unreflective":
As to the legal question, in the country where the movie is apparently set — Germany — sex between an adult and a 15-year-old is now generally not statutory rape: The age of consent there is 14. I don't know what it was in Germany in the late 1940s, but I can say that in many American states it was 14 until the 1990s (the latest to change, I believe, was Hawaii, around 2000)....
Now none of this tells us what the age of consent should be, or how seriously the law should take sexual relationships between adults and people slightly under the age of consent. But it does suggest that we can't just conclusively assume that a fictional relationship in a movie, set in a different time and place, can be treated as "statutory rape" simply because today all American states would treat it as such, though today many Western countries would not treat it as such, and until recently some American states wouldn't treat it as such.
A great actress, like Winslet, ought to want to explore the moral complexities of her character's situation. It doesn't much matter whether her character is committing a crime. Characters in movies often commit crimes, but the actors should know when they are playing characters who are engaging in behavior that many people consider to be morally wrong and that is often criminalized because it is considered wrong. If her idea is I thought I was playing a lovely person that's just dumb.This was all without seeing the movie. Then, when I saw the movie, I was floored to see that there was a central question in the movie about the relationship between the law as written and the morality of right and wrong. This question was not about the sexual relationship, but about what Germans did under the Nazi regime. How are we to understand the guilt of those who did what was legal under the law of the time?
I've been meaning to write about this for weeks, but I realized I needed to go back and see the movie a second time so I could write down some quotes, especially the quotes of the law professor — for, yes, there is a law professor in the movie, and he makes some sharp points about law and morality. Let me tell you about this part of the movie. (Spoilers ahead.)
It's 1966, and Michael Berg is now a student at the University of Heidelberg Law School. A crowded lecture room empties out, and the next class has only 6 students. This much less popular class deals with "the question of German guilt." The teacher, Professor Rohl (played by Bruno Ganz) lectures: "Societies think they operate by morality, but they don't, they operate by law." Even though "people who kill tend to be aware that it's wrong," he says, society will not convict them of murder unless the prosecution can prove the elements of the crime as written in the law of the time. This being so, he says, individual Germans cannot be considered guilty solely because they worked at Auschwitz.
The students are required to attend the trial of a group of women — former Nazi prison guards — who failed to open a locked door during a fire, causing the death of 300 women and children prisoners. One of the defendants is Hanna Schmitz. In class, one student is disgusted by the law professor's legalistic attitude: "You keep telling us to think like lawyers but they are guilty... What is there to understand?" This student sees all the Germans of that generation as guilty — "everyone knew" — and the trial as "a diversion" that is only taking place because one woman survived the fire (along with her daughter) and wrote a book. What would he do? He'd like to shoot that woman that Berg is always staring at:. "I'd shoot her myself. I'd shoot them all." Clearly, he would be guilty of murder under the current law if he were to do that, but his point is that the law is morally obtuse. There is far too much guilt to take any satisfaction in isolating a few individuals for prosecution.
When we next see the trial, Hanna is asked why she did not unlock the door when she knew the people inside were burning to death. The judge pushes her to admit that she was afraid she'd be charged with a crime. He's thinking in legal terms and assumes that she too must have thought that way. It makes sense: If she'd been thinking in moral terms, wouldn't she have opened the door? But Hanna's answer is that she was a prison guard and if she'd opened the doors, the prisoners would escape: There would be "chaos." That's not great moral reasoning, but her mode of reasoning is morality, not law.
Later, Hanna withholds exculpatory evidence. She is illiterate, but she won't admit it, even though she is accused of writing a report that will damn her. She even lies and says that she did write it. There's a complex morass of guilt. She did serve as a guard and could have unlocked the door, but did what, at the time, she thought was right. Now, she declines to present the defense that could help her within the legal system, and she even violates the law, committing perjury, perhaps because, like that rebellious law student, she's now aware of a profound moral guilt that exists beyond law.
I say "perhaps," because it also seems that she is motivated by her shame about her illiteracy. Now, this is a bit of a problem with the movie. You can very easily come away from the movie thinking: She's responsible for 300 deaths but what she's really ashamed of is not being able to read? Ridiculous! Excuse me if I don't feel sorry for the Nazi.
You can deal with this problem by seeing illiteracy as a symbol of the failure of all Germans to "read" their own history. There is also much talk of "secrets" — the secrets of literature and of history, and illiteracy is specifically her secret. In prison, Hanna learns to read, and even though she isn't reading German history — she's reading "The Lady With the Little Dog," "War and Peace," and "The Odyssey" — the learning is presented as symbolic of what Germans need to do. As an old woman, Hanna tells Michael Berg 3 things: she's learned to read, what she feels isn't important, and people should learn from her example.
After her death, Michael goes to New York to visit the daughter of the woman who wrote the book about the fire. This woman does not want to learn anything from him. The prisoners did not go to the camps "to learn," she says — the camps were "not therapy." "Go to the theater, to literature, if you want to learn. Nothing comes out of the camps." But she accepts a memento from the camp, and putting it next to a photograph of her dead family, she reveals that she has never forgotten. As she said to Michael, "Illiteracy is not a Jewish problem."
But I'm going beyond the scope of what I mostly wanted to say, which is that "The Reader" is — among other things — a law movie — really, a jurisprudence movie — exploring the difference between law and morality, between what is written and what is good.
I should end by returning to the subject of statutory rape. The term "statutory" in the name of the crime draws special attention to the way crimes are defined in statutes, and whether something is a prosecutable crime depends on what is written in the statute. But there are larger ideas of what is wrong, and these matter — even more. There are sexual things adults do to the young that are wrong regardless of the details in the statutes.
Finally, having seen the movie a second time, I no longer believe that Hanna takes advantage of the 15-year-old boy. Closely watching the sequence before she suddenly — naked — embraces him from behind, I can see that the boy arrives at his desire to have sex with her first, and she is able to see what he wants before she, sympathetically, offers herself to him. So, on second viewing, the legal and the moral question became, for me, more starkly separate.
I have no idea whether the filmmakers intended the exploration of the difference between law and morality to extend to this issue, but the issue is there nonetheless, and it's one more reason to recommend "The Reader" as a law movie.
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