February 21, 2022
A Canadian study examining how American children can legally marry at an earlier age than they can legally consent to sex found that child marriages violated statutory rape laws in 14 states.
Researchers from McGill University in Quebec detailed their findings earlier this month in the March issue of the Journal of Adolescent Health, where they posited that some states who exempted sex between married spouses from their definition of statutory rape may create “perverse incentives for child marriage.”
The United Nations defines child marriage as any marriage before the age of 18 and it is widely considered a violation of human rights that harms health and educational opportunities of children, particularly young girls.
International evidence shows that women who marry as children have poorer sexual and reproductive health outcomes compared to those who marry at later ages. They are also more likely to experience intimate partner violence and also leave school earlier, the study says.
Despite many years trying to end the practice, child marriage remains legal and continues in many countries, including the United States. The study found that as of October 2021, 44 of the 50 states permit children to wed if their parents consent, with the minimum age varying across the U.S.
Canada is not immune either. A separate study by McGill in 2021 found that between 2000 and 2018, Canada issued more than 3,600 marriage certificates that involved children under the age of 18. Child marriage rates were highest in Manitoba, Saskatchewan, Alberta and the Territories.
Some states set the minimum age at 14 and others as high as 17, and between 2010 to 2014, an estimated 0.6 per cent of all 15 to 17-year-olds living in the U.S. — which translates to more than 78,000 children — were married, or already separated or divorced.
The study notes that most research on child marriage is conducted in low- and middle-income countries in Africa and South Asia, where the motivations for the practice is usually resource-based. However, the drivers of child marriage in the U.S. are not well understood or studied.
Some girls marry to avoid having their intimate partners charged with crimes related to sexual activity with children, often referred to as statutory rape, the researchers wrote, citing the case of an Idaho girl who became pregnant at the age of 14 and her family encouraged her to marry her then 24-year-old boyfriend in an attempt to avoid having the father of her child jailed on a statutory rape charge.
“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,” said the study’s lead author Kaya Van Roost in a press release.
Statutory rape laws are meant to criminalize sexual activity with children under a specific age to protect children from the harms of predatory, manipulative and unequal relationships.
The terms “child” and “minor” are used by the researchers to refer to anyone under the age of 18, in line with the legal age of majority across the U.S. and the UN’s definition of child marriage.
Some states exempt sex between spouses from their statutory rape laws, such as in Louisiana, which researchers note may incentivize child marriage for couples whose sexual relationship violate statutory rape laws. The study reports that social service agencies in California recommended marriage for this purpose in some cases in the mid-1990s.
Researchers say the findings highlight “the inconsistency in these laws and the blurred conceptual and legal boundary between child marriage and sexual violence,” and reports how child marriage in the U.S. may be motivated by efforts to avoid statutory rape charges.
Researchers highlighted that outside of age difference, legal autonomy is also an issue in child marriage, as many of the critical rights that are needed for ending a marriage or obtaining a protective order are only available to adults above the age of majority across most of the U.S.
For example, legal minors who wish to leave their marriages 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 study states.
The researchers created a database of statutory rape laws in place from 2000 to 2020 in each of the 50 states. Using data from marriage certificates filed in 44 states and Washington, D.C., the study compared the age of married spouses with the text of state-specific statutory rape laws in place at the times of these marriages.
The study found that the proportion of child marriages that met the definition of a sex crime varied from one per cent to more than 50 per cent.
“Our study exposes the inconsistency between laws that permit children to marry and laws that criminalize sex with children across the U.S. The research shows that some child marriages are indistinguishable from sex crimes,” said senior author Alissa Koski in the release. “It’s unclear why they were certified as marriages rather than prosecuted.”
In 33 states, some of all statutory rape laws exempted sex between married couples from the definition of crimes. In those states, the proportion of child marriages that would have been crimes with the exemption varied from less than one per cent to more than 80 per cent.
The study showed that statutory rape laws varied from state to state, with some more restrictive and others more lenient. Up until 2010, Idaho laws stated that sex with anyone before the age of 18 is prohibited for all unmarried people which means many child marriages met the definition of sex crimes.
Idaho now has no minimum age for couples who want to wed, and a 2019 bill that would have raised the minimum age of marriage to 16, was blocked and rejected by the Republican-controlled Idaho Congress.
In Michigan, the law prohibits sex with someone younger than 16-years-old unless the individuals are married – which meant fewer child marriages met the definition of sex crimes as more the marriages involved youth ages 16 to 17.
In North Dakota, it is a crime to have sex with anyone under the age of 18 if the older party is at least three years older than the victim. This means sex between married 15, 16, and 17-year-olds met the definition of statutory rape if their spouses were at least 18, 19, or 20 years of age, respectively.
“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,” Koski said.
The study says the results show the contradictory nature of American statutory rape laws that are “problematic.”
Researchers wrote that if the U.S. raised the legal age for marriage to 18 across the country, it would bring it in line with its UN commitment to end child marriage by the year 2030 as part of the United Nations Sustainable Development Goals.