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Child Marriage Problem in the USA and the Age of Consent: Issues and Solutions

The Age of Consent throughout history has usually coincided with the age of puberty, although it was sometimes as early as seven. Early on, the age of consent was a familial or tribal matter and only became a legal one in the Greco-Roman period.[1]

Laws governing the age of consent have changed dramatically in the United States during the 20th century. Most states codified a statutory age of consent during the 19th century, and the usual age was ten years. As a result, in some states, like the State of Delaware, until the mid-1960’s, the age of consent was seven years.[2]

The United Nations Convention on the Rights of the Child (UNCRC) defines a child as any human being under the age of eighteen unless the age of majority is attained earlier under national legislation. In comparison, U.S. immigration federal law defines a child as anyone under 21.[3]

In Alaska, by court order, the minimum age of marriage could be 14 years old[4], and in August, North Carolina raised it to 16.[5] In 2017, Cuomo, the former New York State Governor, signed a law claiming to end child marriage, raising the age of consent to marry from 14 to 18, however, the law allows 17-year-olds to be married with parental and judicial consent, but in July 2020 the age of consent practically became 18. On the other hand, in D.C. the age of consent is 18, but also those who are 16 can be married with parental consent.[6]

Most states still allow youth under the age of 18 to marry under the parental consent or judicial approval. Arguably, according to the “the Full Faith and Credit Clause” Even among those states that ban child marriage, they honor child marriage that takes place in those transferor states that allow it so long it doesn’t violate the federal rules and the transferee state rules.[7] Meaning that if, for instance, a mature and a 14-year-old child marriage took place in Alaska and the couple moved to New York, one of few states that ban marriage under the age of 18, the marriage will still be valid in New York because, from a legal point of view, a marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage which is New York in this case scenario. 

Ironically, one cannot consume alcohol or tobacco products in New York unless they reach the age of 21. Still, if one party to a marriage, most likely the female spouse, is under the age of 18 their marriage will be valid in the state of New York. It’s even worse and unbelievable in the 21st century that in a state like New Hampshire the age of consent to marry, by judicial permission, for males is 14; for females is 13[8] and in the state of Massachusetts, by court approval, the age of consent to marry under a parental consent for males is 14; for females is 12.[9]

Child marriage is also a global issue. In Niger, 76 percent of girls are married before their 18th birthday and 28 percent are married before the age of 15, according to UNICEF.[10] Another report published on 8 October 2020, by the women’s refuge commission. In South Asia, there are about 285 million child brides. Fifty-nine percent of women aged 20–24 in Bangladesh were married under the age of 18, 40 percent in Nepal and 27 percent in India”.[11] But we are here more concerned about the U.S., especially because the U.S. has long been advocating for child rights. 

Minor Sex under the Guise of Marriage

Notwithstanding, the federal criminal code prohibits sexual relations with minors between the age of 12 to 15, the immigration law encourages such sexual relations under the name of marriage. Ironically, the federal immigration laws allow the petition (I-130) for a spouse or a fiancée who are still minors according to the federal law[12], which’s considered a federal law contradiction, especially when you know that The U.S. Department of state considered it a human rights violation!

The U.S. approved nearly 9,000 petitions involving a minor between 2007 and 2017. In 95 percent of them, the younger party was a girl, according to Unchained at last, an organization that fights child marriage.[13] For instance, if an American citizen or a permanent resident is married to a 16-year-old girl from Spain, which is the minimum age of marriage nowadays surprisingly used to be 14 until 2015. According to the European Consortium for Political Research (ECPR)[14], that citizen or resident can petition for their wife or fiancée and bring them to any state in the U.S. and their marriage will therefore be recognized in the U.S. 

According to PBS’S Frontline, between 2000 and 2015, there were at least 207,459 child marriages in 44 states out of 50[15]; and 300,000 between 2000 to 2018 in the U.S, according to Unchained at last.[16] Catastrophic numbers, aren’t they? 

Moreover, studies show that child marriage significantly negatively affects minors’ health; it increases the risk of depression, HIV and sexually transmitted diseases, cervical cancer and risks during pregnancy, labor, and delivery. Additionally, according to the CDC, the infant mortality rate, “in 2017–2018 mortality rates were highest among infants born to teenagers aged 15–19 (8.77 infant deaths per 1,000 live births) compared with infants born to women aged 20 over”.[17]

The Constitutional Solutions

The immigration issue regarding minor spouses could be easily resolved by the Federal Government, since it already controls immigration law, but that leaves us with the issue of the age of marriage which is a family law matter and is therefore decided by the state government, not the federal government. With that being said, the constitution and the federal laws made in furtherance of the constitution are the supreme laws of the land and they even override the states’ constitution.[18] As is the case with the immigration law, the federal government showed an intention to dominate the field of immigration therefore the states have no right but to obey these laws. Similarly, suppose the Federal Government wants to dominate the field of family law. In that case, it can do so by implementing and enforcing its family law regulations or at least enforcing its laws concerning the minimum age of marriage. If one argues against the constitutionality of such enforcement based on The 10th Amendment that left states with “the powers not delegated to the United States by the Constitution, nor prohibited by it” and therefore the Federal Government can only enact laws according to its constitutionally enumerated powers, It’s refutable because the federal government had already acted family laws since the 1930s when the states failed to meet its burdens regarding family matters. It gave the federal courts jurisdiction over some family matters that the states were unwilling or unable to solve them.

The change is theoretically possible, however we must admit that it will practically take a long debate, but as long as it’s not constitutionally and legally impossible and given the fact of its importance, it’s worth the effort of trying and fighting for it because every child has the right to education, play and to decide for him or herself when they are mature enough to make life-changing decisions that affect not only them but also affect their offspring and consequently the entire community.

 

 

[1] Helmut Graupner and Vern L. Bullough, Adolescence, Sexuality, and the Criminal Law: Multidisciplinary Perspectives (Routledge, 2015): p. 25.

[2] Richard A. Poster and Katharine B. Silbaugh, A Guide to America's Sex Laws (Chicago: University of Chicago Press, 1996).

[3] See the Convention on the Rights of the Childhttps://www.unicef.org/child-rights-convention

[6] See Marriage License Application: https://www.dccourts.gov/form/marriage-application

[13] See “Unites States’ Child Marriage Problem,” (Summary, April 2021). https://www.unchainedatlast.org/united-states-child-marriage-problem-study-findings-april-2021/

[15] See Child Marriage in America by the Numbers. http://apps.frontline.org/child-marriage-by-the-numbers/

[17] See National Center for Health Statistics. https://www.cdc.gov/nchs/products/databriefs/db371.htm#fig1

[18] U.S. Constitution, Article VI, Paragraph 2, commonly known as “Supremacy Clause”.

CONTRIBUTOR
Ahmed Nouh
Ahmed Nouh

Ahmed Nouh has an LLM degree from St. John's Law School, USA, and an LLB degree from Alexandria Law School, Egypt. 

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Foreword The publication of this issue on Future for Europe marks a new milestone for TPQ. The journal was founded in 2002 and we celebrated its 20th anniversary with the last issue on Artificial Intelligence and Democratic Values. Among many academics and AI policy professionals, it was considered a landmark publication. Turkish Policy Quarterly (TPQ) now has a new identity as Transatlantic Policy...
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