The Way We Were begins in 1944. Katie (Barbra Streisand) runs into Hubbell (Robert Redford), a good-looking guy she met in college and whom she had a crush on. But as she is rather homely, her love for him was hopelessly unrequited. She invites him up to her place for a cup of coffee, but he is so drunk that without realizing what he is doing when he comes out of the bathroom, he gets undressed and falls asleep in her bed. She gets naked, slides into bed with him, and encourages him. Without really knowing what he is doing, he has sex with her, and she hopes he knows it is Katie he is making love to. But by the next morning, it is clear that he has no memory of what happened, and he merely thanks her for letting him sleep there.

In evaluating this scene, we must do so from the vantage points of three different periods: the last days of World War II, when the scene took place; the early 1970s, when the movie was made; and the twenty-first century, when we watch this movie today. In other words, each of these three different periods will tend to yield three different moral judgments about that sex scene.

But first, let us reverse the sexes. By today’s standards, if a man were to have sex with a woman while she was too drunk to know what she was doing, that would be rape, for she would be in no condition to consent. However, in accordance with twenty-first century egalitarianism, we would not limit it to just a man doing that to a woman. Rather, we would say that if one person had sex with a second person when that second person was too drunk to know what he or she was doing, then the first person has raped the second person. This allows for the possibility that a woman could rape a man, a man could rape a man, and a woman could rape a woman. In other words, by today’s standards, Katie raped Hubbell.

In 1944, when the scene took place, if it had come to light what Katie had done, no one would have called it rape. Katie’s behavior would have been condemned, but not as an act of rape. Rather, she would have been regarded as a slut, in that she had sex without being married. And in no way would Hubbell have been thought of as victimized.

In 1973, when the movie was released, the people who made this movie probably did not think of it as rape either. And given the fact that it was made after the sexual revolution, what Katie did was not condemned as slutty either. In other words, the audience of the early 1970s did not condemn Katie at all.

In fact, the people who made the movie in 1973 probably had no idea that over forty years later this scene would challenge our willingness to apply a single standard to both men and women when it comes to rape. In other words, if a man who takes advantage of a drunk woman can be charged with rape and sentenced to a year in prison, should the same sentence be given to a woman who does that to a man? In particular, if The Way We Were were set in the twenty-first century, would we say that Katie should have gone to prison for what she did to Hubbell?

Some people might argue that since she and Hubbell later fell in love and got married, that made it all right. But suppose a twenty-first-century Hubbell were to realize what happened when he woke up the next morning. And let us further assume that this twenty-first-century Hubbell was outraged and felt disgusted by what happened. Under those circumstances, should Katie spend a year in prison?

Such a distinction suggests that whether such an act constitutes rape depends not merely on the circumstances leading up to and including the act of sex, but also on what happens after the fact.  To reverse the sexes again, imagine a man has sex with a woman who is drunk.  The next morning, he calls her up, tells her he really enjoyed being with her the night before, asks her out for another date for that weekend, leading eventually to their getting married.  It will never occur to that woman that she had been raped.  But suppose, instead, that he doesn’t call her, and she later hears from her friends that he has been bragging about how he got a piece of old what’s her name, she may feel violated and end up bringing charges against him.

Determining whether Katie raped Hubbell would be further complicated if Katie had been as drunk as he was.  By today’s standards, if Katie were that drunk, it would be said that she was unable to give consent; and by today’s standards, a man’s being drunk is no legal excuse for taking advantage of a woman who is too intoxicated to give her consent.  Therefore, by today’s standards, had Katie and Hubbell been equally drunk, she could claim to have been raped, and Hubbell would be in trouble.

I confess that I have a double standard concerning rape in such a circumstance. First, I would find it hard to believe that even a twenty-first-century Hubbell would be all that put out by what she did. And second, I would not want to see Katie go to prison in any event.

But my views are not important. What is important is that this scene in the movie, imagined to take place today, tests our willingness to apply a single standard to both men and women in such cases. Most people I know, after some hesitation, will admit that they would not want to see Katie do hard time.

In a way, Summer of ’42 is a companion piece with The Way We Were, only instead of challenging our attitude about rape and the double standard when it comes to having sex with someone too drunk to give consent, Summer of ’42 challenges our attitude about rape and the double standard when it comes to having sex with someone too young to give consent.

With both movies, we pretty much have the same three time periods: the 1940s, when the movies were set; the early 1970s, when the movies were made; and today, when we watch them from the perspective of the twenty-first century. In Summer of ’42, a 15-year-old boy named Hermie (Gary Grimes) falls in love with a 22-year-old woman named Dorothy (Jennifer O’Neill). One evening, she gets word that her husband’s plane has been shot down over France, and he is dead. She and Hermie have sex, and the next day she is gone.

I never really cared for this movie, but that is neither here nor there. The sense of it was that Dorothy, in her grief, turns to Hermie for affection, and that what happens is a deeply meaningful and positive experience for him. Now, I don’t know what the laws were in Massachusetts in 1942, but I am pretty sure that in most states, if a 22-year-old man had sex with a 15-year-old girl, he would be guilty of statutory rape; and if found out, he would be sent to prison, especially when the jury was told that he had sex with her on the very night he found out his wife had been killed, for that would make him seem callous. Should we condemn the man but excuse the woman? Did Dorothy deserve to go to prison for rape, just as a man would?

Once again, as with The Way We Were, we have a situation in which there is consent after the fact, in this case, when the boy becomes a man. Does that matter? And if it does, what would our attitude toward Dorothy be if the adult Hermie was psychologically harmed? And once again we have to distinguish between the attitudes existing when the movie was set, when it was made, and the attitudes we have today.

Even today, the double standard lends itself to late-night humor. Typical was when Jay Leno was discussing a story about a female teacher that had sex with one of her male students, leading Leno to ask in exasperation, “Where were these teachers when I was in Junior High?” Humor aside, could Summer of ’42 be made today? More to the point, could such a story be told in a contemporary setting? Probably not. But I wonder if that represents a genuine change in attitude on the part of the general public, or simply a fear that a handful of radicals would stir up trouble, making the film controversial. I, for one, would have a hard time condemning Dorothy, even if the story were set in the present, just as I would have a hard time condemning Katie, even if that story were set in the present.