February 28, 2019 Domestic Violence

For Teen DV Awareness Month, Recent Developments in Child Marriage in the U.S.

By Maritza Rodríguez and Sarah White

February is teen dating violence awareness month. Data from the Centers for Disease Control indicate that teen dating violence is widespread, including both sexual violence (reported by 14% of female teens, 5% of male teens) and physical violence (reported by 11% of female teens, 8% of male teens). Among those who experience intimate partner violence (IPV) in their lifetime, 23% of women and 14% of survivors first experienced that violence before 18. The Department of Justice reports that the rate at which girls between 16 and 24 experience IPV is almost three times the national average. However, some estimates suggest that as few as 33% of teenage IPV victims ever told anyone about the violence. Minors who experience intimate partner violence are more likely to develop depression and anxiety, eating disorders, drug and alcohol abuse, and suicidal ideations, and they are more likely to be victimized as adults.

Child marriages can trap teenagers in a relationship that may already have caused them emotional, physical, and sexual harm.

Child marriages can trap teenagers in a relationship that may already have caused them emotional, physical, and sexual harm.

Credit: Tony Anderson via GettyImages

In recent years, some states have attempted to tackle this problem by reviewing their age of consent and child marriage laws. Child marriage in the United States is more common than you may think: more than 200,000 children under age 18 were married between 2000 and 2015 in the United States. 87% of these minors were girls, and 86% of them married adults.

Rather than creating additional protections for the age group most vulnerable to IPV, the legal system can inadvertently create barriers for minors attempting to leave an abusive marriage. Generally, minors cannot file for divorce or civil protective orders without a parent or adult “next friend” filing on their behalf. States’ child protection agencies typically lose the power to help minors once they are married. Some states do not consider minors automatically emancipated by marriage, so they may face penalties for fleeing an abusive marriage (“running away”). Resources designed to help survivors often overlook teenage victims: youth homeless shelters are generally not created with IPV in mind, while domestic violence shelters are not typically equipped to serve minors except those who arrive with a parent-victim.

Below are some of the legal elements that help create this situation and enable IPV against minors in the United States. Each item also represents a way for family law practitioners to get involved in this issue, so we encourage you to look up your local state’s laws and review any proposed or recent changes.

  1. Age of consent and exceptions

    Although 18 is the typical age of consent to marry, Delaware and New Jersey are the only states that enforce that age without exception. 20 states’ marriage statutes allow minors of any age to marry if they satisfy certain exceptions – most commonly parental consent. 10 states allow clerks to issue a marriage license to minors without consulting a judge. Four states (Arkansas, Mississippi, New Hampshire, and Ohio) set different minimum ages and/or different conditions for minors to marry based on the gender, and the minimum age for girls is always younger than that for boys. In seven states, pregnancy automatically lowers the minimum age for the pregnant child to marry.

    Advocates advise against using parental consent as the determinant for allowing children to marry because it masks the issue of parental coercion, as in forced or arranged marriages. Pregnancy, too, is inappropriate as an exception to minimum age because it fails to recognize that the pregnancy of a minor may be the result of rape and abuse. Instead, marrying the parties exacerbates the situation by legally binding the minor to her potential abuser.

    Seven states (Delaware, Texas, Virginia, Kentucky, New York, New Jersey, and Ohio) limit marriage to legal adults who have either reached the age of majority or become emancipated by court order. This is the most straightforward way to end child marriage and eliminate the need for most of the other strategies that follow. However, recent legislation has faced opposition, citing religious freedom and government overreach. For example, Florida’s 2018 child marriage reform law was introduced as a ban on child marriage, but was reduced to a bill that raises the minimum age to 17 and preserves exceptions such as parental consent as a compromise with opponents in the legislature. Other recent changes are positive but incremental, such as a 2018 Missouri law that raised the minimum age for marriage from 15 to 16.
  2. Liberty issues: emancipation & filing for divorce or protective orders

    Many states consider a minor automatically emancipated once they are legally married, but several do not. Some states, including Connecticut, Hawaii, Nevada, Oklahoma, South Carolina, Virginia, and Washington, allow marriage as grounds for emancipation, but apparently require that a married minor file a petition, serve it upon their parents, and attend a hearing before a judge signs the order declaring them a legal adult. In other states, such as Montana and Pennsylvania, the law is unclear whether a child is emancipated upon marriage as a matter of law, and may require a case-by-case determination. Legal uncertainty and procedural barriers can serve to prevent or delay minors filing for divorce. If states do allow marriage by minors, they should ensure that their laws clearly provide for that same minor to have the right to file for divorce on their own initiative.

    At the very least, all married persons of any age should have the right to file for civil protective orders against their spouses. Since minors are more at risk of IPV, the law should not deprive them of one of the most powerful tools in the civil legal system.
  3. Protection concerns: child protective services & statutory rape

    Although a minor may become emancipated, some states still provide that they are subject to and eligible for the protections and services afforded any other minor based on their biological age. The reasons for this are clear. Marriage does not make a child immune from abuse. Marriage also does not protect a child from coercive sex, and so should not exempt them from rules regarding statutory rape. Emancipation laws commonly carve out exceptions that stipulate that an emancipated minor still may not purchase tobacco; it stands to reason that such a person should also be considered a minor for purposes of consent to sexual activity.

Child marriage continues to exist in the United States. These marriages can trap teenagers in a relationship that may already have caused them emotional, physical, and sexual harm, during a period in which they are the most vulnerable to intimate partner violence. Tahirih Justice Center, Girls Not Brides, and Unchained At Last are among the organizations advocating for survivors of child marriage and seeking to put an end to the practice. As this article was being written, Massachusetts and Utah have proposed legislation raising the minimum age for marriage, and other states may be considering similar action. We encourage family law practitioners to reach out to local and state bar associations and other advocacy groups to find out how you can contribute to these efforts.

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Maritza Rodríguez

Esq., Newark, NJ

Rodríguez Law LLC

Chair, ABA Section of Family Law Domestic Violence Committee

Sarah White

Esq., Atlanta, GA

Atlanta Legal Aid Society

Vice-Chair, ABA Section of Family Law Domestic Violence Committee