January 19, 2009

"The Reader" is a law movie.

Around last Christmas, I got into a bit of a dispute with Eugene Volokh over the movie "The Reader." I had written about the way the actress Kate Winslet took offense at the use of the term "statutory rape" to describe the sexual relationship between her character — the 35-year-old Hanna Schmitz — and the 15-year-old Michael Berg. I'd acknowledged that you'd have to "check the statute books" to know if the term "statutory rape" technically applied, but Eugene Volokh nevertheless said:
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....

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.
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":
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.

30 comments:

Smilin' Jack said...

ZZZZZzzzzzz.....SNORK!!...ZZZZZzzzzzz.....

Positroll said...

"The Reader is a law movie."
Well, the author of the book "the reader" is a law professor (public law including conlaw; legal philosophy). So no surprise there ... (btw, Goethe was a lawyer too!)

Christopher Althouse Cohen said...

This is from Wikipedia:

"The age of consent in Germany is 14, as long as a person over the age of 21 does not exploit a 14-15 year-old person's lack of capacity for sexual self-determination. In this rare and special case, a conviction on an individual over the age of 21 requires a complaint from the younger individual. Otherwise the age of consent is 16."

So, it could still be statutory rape.

mariner said...

Sheesh.

The second time around, and you're still as obtuse as before.

A 15-year-old boy has no more capacity for informed consent to sex than a 15-year-old girl.

It's wrong, whether he desires it or not. (And apparently it was illegal as well.)

Ann Althouse said...

Mariner, reread. You're raising a different issue.

William said...

I read your article with interest. It seems to me that some crimes are forgiven or condemned according to the political ideology of the judge and his victim. Daniel Ortega, the Nicaraguan president, has been accused-- rather convincingly-- of having sexually abused his ten year old step-daughter. News accounts of Daniel Ortega's comings and goings leave out this rather significant biographical fact. For example, The Times describes Daniel Ortega as the President of Nicaragua and not as the pedophile President of Nicaragua. I wonder if this biographical detail would be left out of descriptions of Pinochet?.....The same phenomenon takes place with the crime of genocide. Bar none, the greatest murderer of the twentieth century was Mao. Mao demonized huge populations not according to their race or religion but according to their class or political backgrounds. Many in the audience of The Reader who delight in working out the extent and filigree of German guilt were themselves, in their youth, supportive of the Great Proleterian Cultural Revolution. They count this support as misplaced idealism and evidence of their virtue rather than otherwise. Genocide in pursuit of a classless society is no crime. In much the way that sexual predations committed by a President who believes in a woman's right to choose are not predations, pederasty committed by a believer in a classless society is not rape. The most salient fact about these crimes is not the crime but the ideology of the criminal.

mtrobertsattorney said...

Do they teach natural law theory in legal philosophy classes any more? From my limited experience,recent law school graduates have never even heard of it. My guess is that it is treated as useless relic of the distant past.

The Elder said...

"A 15-year-old boy has no more capacity for informed consent to sex than a 15-year-old girl. It's wrong, whether he desires it or not. (And apparently it was illegal as well.)"

Pay attention, mariner. In Germany, they may have that capacity. CAC points out that the sexual relationship between the parties presents both moral and legal ambiguities. Your response is merely the unthoughtful opposing expression of Ms. Winslet's equally unthoughtful comments that started this thread in the first place. Where is your respect for cultural diversity?

Wake up, Smilin' Jack. No sleeping in class. It's disrespectful of the other students.

The Bear said...

There is a single most hysterical fact that everyone ignores who makes comments on the teenage boy and statutory rape issue:

Every last guy who has born of man and woman upon this Earth who hears or reads one of these stories has exactly the same thought: Why couldn't that have been me?!!

It's both sad and funny but, I understand why some people get so up in arms about this sort of issue, too: denial.

With guys, I'm sure its just a fake to keep people women from knowing how much like pigs we all are. Same story with men and teenage girls.

With women ... maybe its just that they are afraid to have anyone know how many times they've been tempted to indulge with some young buck themselves.

TMink said...

"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"

OK, while she may not take advantage of him, she may cause him lifelong problems by not being adult enough to say "come see me in 6 years handsome."

My 6 year olds do not have to be encouraged to want to gorge on candy until they are ill, they are prevented by their loving parents who know better.

Then there is the whole gender aspect. Just ask Roman Polanski.

Trey

traditionalguy said...

OK, the wonder here is that the Legal System says all Crimes are only technicalities. The citizen wants to live under a moral code where he/she feels safe. However the Legal Systems Administering Justice have long since realized that crimes have to be technicalities. Thus the most famous question to all attorneys is "how can you represent a guilty Criminal? This is asked in cases of Child murderers and all cases of predators of the innocent.Since all Nazis were predators of the innocent quite openly in their free exercise of their Pagan God given Will to Power over inferiors [called Social Darwinism outside Germany]. Yet the legal System has to find a technical statute violated to apply its sanction to a Criminal. Meanwhile the rest of us want to apply the simple idea that snakes are to be shot on sight. That simpler idea was used by the simple Geo. W after the innocents of 9/11 were struck by Arab snakes. For this executive action, Geo. W and/or his Subordinates may yet be Charged by the Legal System with acting without dealing with the SOB's technical legal rights.

Palladian said...

"Every last guy who has born of man and woman upon this Earth who hears or reads one of these stories has exactly the same thought: Why couldn't that have been me?!!"

Actually, I don't remember hoping to be sexually assaulted by a woman when I was 15.

traditionalguy said...

Palladian... Some guys have it and some don't. Maybe you didn't frequent the right places at age 15. I do remember that Euorpean teenagers were flabbergasted at how little my kids knew of sex at age 15. It seems that in Paris age 15 is over the hill. Needless to say no more exchange students visited us. But they were an eye opening cross-cultural experience and very socially intelligent young people.

Richard Dolan said...

"[E]xploring the difference between law and morality, between what is written and what is good."

That's a large and ambitious topic for a movie. From Ann's comments, it seems that the movie (which I haven't seen) invites us to view that difference through the lens of the Anglo-American, common law tradition, despite the plot device of setting the action in Germany and a German law school. Strange, really, since the "difference between law and morality" is likely to look a bit different in a code-based civil law system like Germany than it would here.

Especially in the US, we have come to accept an active, intrusive judiciary, substituting its policy views for that of the political branches, as natural even though it is anything but -- quite unusual, in fact. In a civil law system, matters of morality are the province of the law-maker, typically the legislature and almost never the judiciary, when the relevant code is drafted or amended. Those systems typically noe include a constitutional court with powers of cassation, meaning they can strike down certain laws but cannot replace those laws with policies of their own.

Judge Korman took the same difference between law and morality as the theme of his Law Day speech a year or two ago at the Fed Bar Council. Using examples drawn from Nazi courts (he was the judge who presided over the Holocaust cases in the EDNY), his take was that law is morally neutral, and can as easily be an instrument for good or bad. It only becomes an instrument for good when law is infused with a concern for justice. How one can bring that about in any legal system, but especially a civil law system, when the law maker rejects the very concept of justice, he did not say.

In all events, that's a hard concept for a movie to do much with, particularly using the appeal to emotions at the heart of moviemaking. Perhaps the point is that, having stirred the emotions in complicated ways, the movie pressures the viewer to sort out those complex feelings. I'm not sure how that's supposed to work with all the cross-cultural baggage that seems to be going in the movie, but I'll just have to see it to find out.

Smilin' Jack said...

The idea that a 15-year-old boy can be raped by a woman, whether statutorially, jurisprudentially, or otherwise, is just plain silly. Our present culture's bizarre failure to recognize that appears to be one of the more ridiculous side effects of women's lib.

Joe said...

The idea that a 15-year-old boy can be raped by a woman, whether statutorially, jurisprudentially, or otherwise, is just plain silly.

How is that silly? Rape is non-consensual sex. Sexual response is autonomous--men cannot will erections nor will them to go away.

A second point missed is that even if a 15 year old boy desires to have sex with an adult woman, that doesn't mean doing so is a reasoned decision. One important issue is that adults have gained much more experience in determining when they are being manipulated and when they are not. Much of this comes only from experience. It's also quite common for kids around 15 to look for a mentor outside the family and to put great trust in them--that trust can be so great it can be, and has been, abused.

traditionalguy said...

The argument of whether or not some conduct should, or should not, be Criminally proscribed goes on and on. The issue for the legal system is only whether you can apply as law the Judgement that a man/woman while not technically Guilty of anything, should probably be locked up anyway to protect the innocent. In other words, do you use the Bush Doctrine that neither Sweet Sarah, nor the commenters here, seem to understand. The answer is another approach never used in Anglo-saxon jurisprudence: Make EVERYTHING illegal, and then find exceptions for your friend. Then you would really need lawyers ever moment of the day.

Palladian said...

Traditionalguy, the key word in by comment was "woman".

nina said...

I think you would like the book, Ann. I read it many years ago, at the urging of a German friend. The law and morality aspects which you describe are very evident there. (I haven't seen the movie yet.)

John K. said...

It sounds like this movie will titillate both my bigger head and my littler head.

How appropriate that you posted this on the 201st birthday of Lysander Spooner, who demonstrated for posterity that a legislature's acts neither add nor subtract anything from justice, and that in reality there is no law other than natural law.

Ann Althouse said...

"I think you would like the book, Ann."

I did read the book, years ago. If I could remember where I've shelved it, I would make an effort to compare the book and the movie, but I can't remember the book enough to do that, so I'm writing about the movie as it is.

I don't remember particularly liking the book, and I don't remember focusing on whatever it was the author was trying to say about law. My view of it was distorted by the fact that it was given to me by a student -- a German graduate student -- and reading the beginning of the book, the sexy part, was kind of a weird experience and consequenlly, I was a bit standoffish toward the book -- out of a sense of professional responsibility!

Ann Althouse said...

Maybe my old student will read this post, so I should say, it was a very nice gift!

Ann Althouse said...

Richard Dolan said..."That's a large and ambitious topic for a movie. From Ann's comments, it seems that the movie (which I haven't seen) invites us to view that difference through the lens of the Anglo-American, common law tradition, despite the plot device of setting the action in Germany and a German law school."

Great comment. Considering that we don't have common law crimes anymore, I didn't see that much of a mismatch. But the movie was geared towards Americans, which, to go back to Nina's point, is one of the big differences with the book that would be worth more study.

"Especially in the US, we have come to accept an active, intrusive judiciary, substituting its policy views for that of the political branches, as natural even though it is anything but -- quite unusual, in fact. In a civil law system, matters of morality are the province of the law-maker, typically the legislature and almost never the judiciary, when the relevant code is drafted or amended. Those systems typically noe include a constitutional court with powers of cassation, meaning they can strike down certain laws but cannot replace those laws with policies of their own."

I wonder if the rebellious law student is in the book or if he's new to the movie to represent instinctively what Americans say. (Clue: they even give him a propensity for the impulsive gun-slinging.) Was he inserted for our benefit? You can't very well have the movie saying the Nazis can only be condemned if they were violating their own law. We would shun the thing. (The director, Stephen Daldry, is English, so that complicates the pandering question.)

"In all events, that's a hard concept for a movie to do much with, particularly using the appeal to emotions at the heart of moviemaking."

Excellent point. I ended up thinking that the movie only suggests these things -- as, indeed, it runs on the man's emotional arc and, though he's a lawyer, he never struggles with his professional obligations. .(Is he a defense lawyer or a prosecutor? I remember him saying that the wife he divorces is a prosecutor.) The struggle was with his love for the woman, which shaped his entire life. But this fits with the idea -- presented in the movie -- that what matters is to face the truth and tell our secrets -- not punishment.

When I characterized the movie as a "law movie" -- though I see I opened myself up to "duh" comments -- I meant that it's a movie that I, as a lawprof, would recommend to other people interested in law for the purpose of setting up a deep conversation about law.

And for those who would make a "duh" comment about this post, I'd say the movie is mainly about facing up to one's secret history. Law is only a secondary theme, something to be explored in contemplation afterwards.

Smilin' Jack said...

a deep conversation about law.

There's no such thing. You can have deep conversations about morality or philosophy, but not about law. Law, at least in a democracy, is merely what a bunch of politicians thought would get them reelected.

Trooper York said...

I waiting for The Reader_iam movie to come out.

The only problem is it keeps delete itself so the dvd sales are problamatic.

traditionalguy said...

Palladian... Sorry if I misconstrued your comment while trying to be too clever about a very serious subject. You are correct.

MarkW said...

Given our bizarro child porn laws, can somebody please explain to me why The Reader isn't illegal. It doesn't matter if the actor is of age -- the character is not, and my understanding is that any portrayal of sex with a minor is prosecutable as child porn. What am I missing?

Positroll said...

"In a civil law system, matters of morality are the province of the law-maker, typically the legislature and almost never the judiciary, when the relevant code is drafted or amended. Those systems typically noe include a constitutional court with powers of cassation, meaning they can strike down certain laws but cannot replace those laws with policies of their own."
Yes and no.
Until 1933, German lawyers where extreme "positivists", i.e. they strictly seperated law and morality as you suggest. However, the Nazis themselves challenged that view by commanding German lawyers to re-interpret all law in the spirit of the "national revolution", using the law as a means of spreading that revolution (the same happened in communist regimes).
After 1945 there was no way going back to the old positivism, to many people having been killed by persons who where "just following orders / the law".
So in 1946, Heidelberg lawprof Gustav Radbruch invented the "Radbruch formula":
"In sum, Radbruch's formula argues that where statutory law is incompatible with the requirements of justice "to an intolerable degree", or where statutory law was obviously designed in a way that deliberately negates "the equality that is the core of all justice", statutory law must be disregarded by a judge in favour of the justice principle."
http://en.wikipedia.org/wiki/Gustav_Radbruch
It's no accident that the story of the book "the reader" takes place in Heidelberg - besides the fact that it's author (Bernhard Schlink) got a Ph.D. in law from Heidelberg university ...

Nowadays, higher German courts do have some leeway to formulate their own policies. In practice, the difference to the US system is rather one of degree, even though the theoreticcal approach is partly different.

BTW, Art. 20 of the German constitution binds all judges to law AND justice (Gesetz und Recht, even though the exact implications of this formula remain disputed) and Art. 79 declares that some fundamental principles (including human dignity) cannot be altered even by amendment of the constitution itself.

Positroll said...

I forgot to mention that these problems resurfaced in the early 90s regarding the treatment of east German officials. Schlink published on the subject ("Rechtsstaat und revolutionaere Gerechtigkeit"), arguing against criminal punishment, defending the "nulla crimen sine lege" principle and arguing that the Radbruch-formula doesn't apply in those cases; esp regarding soldiers who shot persons which "illegaly" tried to cross the boarder towards the west.
"The Reader" was published shortly after this ...

For the more personal apects cf.
http://www.npr.org/templates/story/
story.php?storyId=98883419

Amitav Roy said...

thanks for the article.
when i saw the movie, i said to myself what the heck did the director meant from the movie. u show a lady ashamed of admitting her illiteracy and then she is responsible of killing so many people.

after reading your article, i understood it better, but still the logic is not clear...

thanks for the article.
it was nice...