Posted by Eugene Volokh: "Statutory Rape" in *The Reader*: http://volokh.com/archives/archive_2008_12_21-2008_12_27.shtml#1230229488
[1]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. 1. 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). Throughout much of American history, the age of consent was 15 or less (often significantly less). As I note [2]in this post, even if you focus solely on the Western World (the U.S., Europe West of the Iron Curtain but including all of Germany and excluding the pinpoint countries, plus the Western Anglosphere, which is to say Australia, Canada, and New Zealand), 38% of the population lives in countries with the age of consent set at 15 or less. If you include South Korea and Japan in the West, the percentage will climb even higher. 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. 2. I can't speak in detail to the moral question, since I haven't seen the movie, and I don't know the social context of the time. While some crimes, such as forcible rape, are in my view wrong regardless of the social or personal context, other matters -- statutory rape, copyright infringement, underage drinking, and the like -- tend to turn on much subtler factors, and the arbitrary lines that the law necessarily draws can't precisely track the underlying moral truth. I will say that my intuition is that 15-year-old boys are unlikely to suffer lasting emotional harm from affairs with 30-something-year-old women, any more than from any first sexual relationship, whether at 15 or 16, and whether with a 35-year-old or another 15-year-old. (I wouldn't claim this extends to 15-year-old girls with older men, but I don't think blithely disregard factors such as the sex of the parties in making the moral judgment here.) Of course, maybe that's just my remembered teenage fantasies (not, I should stress, my personal experience) talking. Perhaps I'm mistaken on it. But again I'm hesitant to say that such relationships can categorically be seen as deeply immoral behavior regardless of person, time, and place. 3. The parenthetical in the Althouse post, "By the way, the actor playing the role was only 17 when most of the scenes were filmed. They did some last minute filming of the naked parts 'literally days' after he turned 18," raises separate questions. I would assume that this was all done legally, and as a moral matter, I doubt that the actor is going to suffer any real harm from the experience; I expect he's going to derive a great deal of professional and likely personal benefit from it. But again I can't claim any expertise on that. Note: In the factual discussion above, I refer to the age of consent for sex between a typical adult and a minor. I don't include -- since The Reader doesn't deal with this -- sex between people close together in age, where the age of consent is often set lower. I also don't include situations where there's some familial or authority relationship between the parties, where the age of consent is often higher. References 1. http://althouse.blogspot.com/2008/12/kate-winslet-is-so-offended-by-use-of.html 2. http://volokh.com/posts/1209579954.shtml _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
