The blurred boundaries between statutory rape and child marriage in the US

The United Nations defines child marriage as marriage before the age of 18 but some American states are violating this norm, allowing children as young as 12 to get married and exposing them to statutory rape.

The study, published in the Journal of Adolescent Health, is based on research into United States’ records of child marriages and whether they constitute statutory rape, a criminal act where an individual younger than the age of consent is involved in sexual acts.

The authors note that “In many US states, children can legally marry at an earlier age than they can legally consent to sex, leading to situations in which sex between spouses may be a criminal act.”

They point out that some US states “exempt sex between married persons from their definition of statutory rape,” which, they add, may create “perverse incentives” for child marriage.

Researchers from McGill University in Montreal, Quebec in Canada compared data from marriage certificates and statutory rape laws across the US and discovered that child marriages violated statutory rape laws in 14 US states.

The researchers write that the proportion of child marriages that violated statutory rape laws “varied from 1 percent to over 50 percent.”

They add that “In 33 states, some or all statutory rape laws exempted sex between married couples from the definition of crimes. In these states, the proportion of child marriages that would have been crimes, without these exemptions, varied from less than 1 percent to over 80 percent.”

“Our study exposes the inconsistency between laws that permit children to marry and laws that criminalise sex with children across the US. The research shows that some child marriages are indistinguishable from sex crimes,” says senior author Alissa Koski, an Assistant Professor in the Department of in Epidemiology, Biostatistics and Occupational Health at McGill University. “It’s unclear why they were certified as marriages rather than prosecuted,” she adds.

The researchers say they were perplexed by the wide variety of laws covering statutory rape in different states.

“We were surprised by the enormous variation between states’ statutory rape laws and how they overlapped with child marriages. We were also alarmed to find some extremely young children were married over the period that we studied. For instance, four 12-year-olds have been legally married in Louisiana since 2000,” says lead author Kaya Van Roost, a PhD student under the supervision of Alissa Koski.

The authors write that their results highlight the “blurred legal and conceptual boundaries” between child marriage and sexual violence. According  to the researchers, the “simultaneous legality” of child marriage and marital exemptions to statutory rape laws “provide legal loopholes” for sexual acts with children “that would otherwise be considered crimes.”

The authors also warn that because some states allow for child marriages and do not consider them within the boundaries of statutory rape, they may “incentivise a substantial portion of child marriages.”

The McGill study reveals that some US states have more restrictive laws while others are more lax. Statutory rape has a different definition in each US state. For example, in Idaho sex before the age of 18 was “prohibited for all unmarried persons until 2010.” In states like Idaho, that means if a child is married before the age of 18, they can have sex. The researchers say this meets the definition of a sex crime.

On the other hand, in Michigan, for example, laws prohibit sex with someone less than 16 years old, unless the individuals are married. In states such as Michigan, fewer child marriages “met the definition of crimes since most of the marriages involve 16- or 17-year-olds.”

“The simultaneous legality of child marriage and marital exemptions to statutory rape laws provide legal loopholes for sexual acts with children that would otherwise be considered crimes,” says Alissa Koski.

The researchers say that based on their research, “child marriage is ongoing across the United States,” with “most child marriages are between a legal minor under the age of 18 and an adult aged 18 years or older.”

They are concerned that “differences in legal autonomy when one is a child and the other is an adult can have important consequences for well-being,” giving the example of minors wanting to leave the marriage: they “may have difficulty doing so because their minor status prevents them from independently contracting a lawyer, renting an apartment, or accessing domestic violence shelters.”

The researchers question some states’ marital exemptions to statutory rape laws, explaining that such laws are in place to protect children from “potential physical and mental harms stemming from exploitative relationships.” They say that these laws “acknowledge that children may not have the capacity to give their full and informed consent to sexual activity.”

The researchers say that they are unclear about why marital exemptions are made, as if to say “in the eyes of the state, marriages cannot be exploitative in the same manner as non-marital relationships, and therefore, married children do not require the same protections.”

They also refute another argument for marital exemptions, namely the parental consent requirement for children to marry “may be perceived as sufficient protection against potential harms.” The researchers note that “parental consent for child marriage may be difficult to distinguish from parental coercion in some cases, casting doubt on whether this requirement is sufficient protection.”

In sum, the researchers recommend that US states which allow for marital exemptions to statutory rape “should be re-examined and that the minimum legal age for marriage should be raised to avoid inconsistencies with statutory rape laws.”

The researchers recommend that throughout the US the minimum age for marriage should be raised to 18, bringing the United States “in line with its commitment to end child marriage by the year 2030 as part of the United Nations Sustainable Development Goals.”