This guest post is courtesy of Kelsey McGee, Regent Law Family Law student:
The law is designed to protect the vulnerable. The cornerstone standard of all family law cases involving children is “the best interests of the child.” But what authority does that ideal hold when the minimum marriage age of a state actually exposes children to abuse, rape, or human trafficking?
In most states the minimum age that two consenting adults can marry is eighteen. In certain circumstances a parent can consent for their child under the age of eighteen to marry. In Missouri, the no-minimum-age statute was modernized in 2018 to a minimum age of sixteen.[1] Massachusetts follows a judge-made-law decision from 1854 which allows girls to consent at age twelve and boys to consent to marriage at age fourteen with the valid consent of a guardian.[2] States which do not recognize a minimum age that a child can marry with a parental consent accompanying the marriage petition are: California[3], Maine[4], Michigan[5], Mississippi[6], New Mexico[7], Oklahoma[8], West Virginia[9], and Wyoming.[10]
This should shock the conscience.
States have the right to set their own laws. However, the problem with states having low or non-existent waivable limits to the minimum age for marriage can become a giant ugly loophole in the protection of children. Human trafficking, the systematic abuse of children, hides behind laws like this. Statistics show that 87% of the minors who marry in the United States are girls, and 86% of minors who marry were married to adults while only 14% married other minors.[11] So the two seventeen-year-olds who decide to get married are the extreme minority of cases. These statutes do not protect the beauty of marriage or freedom to marry. Instead, these laws hide the dark reality that children are funneled into marriages with traumatic and sometimes deadly consequences.
Another statistic is the average age of entry into prostitution is estimated at 12-14 years old for girls. Simply put, the problem is inherently that these state statute can work to allow traffickers, pimps, and madams to gain complete legal control over minor children. This leaves children vulnerable within these “marriages” subject to abuse, rape, forced pregnancies or abortions with no legal avenue to file for a restraining order or a divorce. The laws in most states regarding restraining orders and divorce require the consent of a legal guardian. So what is a 14 year-old girl to do when her “husband” is using her as income by pimping her out and she has to get his consent to apply for a restraining order?
If you’re like me, this hypothetical is untenable. So what do we do? How do we protect the freedom of individuals and also protect children? Protect the children. The response is complex but the rationale is not. Protect the children. It should be difficult for pimps and traffickers to get access to children. The state should not open the door and throw the rice for the “happy couple.”
Call your State Senator. Advocate for a change the law. Close the loophole. Prevent sexual exploitation.
Resources:
National Center for Missing and Exploited
Children, www.missingkids.org
Shared Hope International, www.sharedhope.org
Tahirih Justice Center, www.tahirih.org
To read more on this global concern download:
A Brief Assessment of the 25-Year Effect of the Convention on the Rights of the Child, 23 Cardozo J. Int’l. & Compar. L. 323 (2015); and
Suffer the
Children: How the United Nations Convention on the Rights of the Child Has Not
Supported Children, 22 N.Y.
Int’l. L. Rev. 57 (Summer 2009).
[1]
Mo. Rev. Stat. § 451.090 (LexisNexis).
[2]
Mass. Ann. Laws ch. 207 § 7, Parton v. Hervey, (Mass. Mar. 1, 1854).
[3]
Cal. Fam. Code § 302.
[4]
Me. Rev. Stat. tit. 19-A, § 652.
[5]
Mich. Comp. Laws Serv. § 551.103.
[6]
Miss. Code Ann. § 93-1-5.
[7]
N.M. Stat. Ann. § 40-1-6.
[8]
Okla. Sat. tit. 43, § 3.
[9] W.
Va. Code § 48-2-301.
[10]
Wyo. Stat. Ann. § 20-1-102.
[11]Child
Marriage By The Numbers, Frontline, Anjal Tsui, Dan Nolan and Chris Amico, July
6, 2017, http://apps.frontline.org/child-marriage-by-the-numbers/ (Last Visited
April 19, 2022).
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