Age of Consent Muddles Law on Marriage vs. Rape

By Claire Bushey, Women's eNews. Posted June 11, 2007.

Ken Boulden, clerk of the peace for New Castle County in Delaware, is breathing a sigh of relief.

On May 23 Gov. Ruth Ann Minner signed a law that Boulden drafted to help protect minors in Delaware.

It requires anyone younger than 18 to petition Family Court for permission to marry. A judge will decide whether the marriage is in the minor's best interest.

Pregnancy -- which until last month had been a reason to allow an underage marriage to proceed -- will no longer exclude a couple from the state's restriction of marriage to those 18 or older.

Boulden estimates about 25 couples married each year in New Castle County under the former pregnancy exception. Presiding over such weddings put him in a bind because the pregnancy provision allowing the union was in direct conflict with the state's statutory rape law, which classified sex with anyone under 16 as a felony.

Sometimes Boulden says he would marry a couple in compliance with the marriage code only to call the police to arrest one of the newlyweds on statutory rape charges as they were leaving his office.

The statutory rape charges, he says, rarely stuck.

"Part of their successful defense was, 'How can you condemn me for an act you're alleging was illegal when you hand me a document with the state seal and signature on it, sanctioning me to go forward and continue the same act?' With that, it became obvious that the law was broke. It needed to be fixed."

Conflicts Still on the Books

Four other states -- Maryland, Florida, Oklahoma and Kentucky -- still have conflicts between their laws on statutory rape and underage marriage in the case of pregnancy.

Maryland allows pregnant 16 and 17 - year - olds to marry without parental consent. A pregnant 15 - year - old can marry provided a parent agrees to it.

Judges in Florida, Oklahoma and Kentucky can grant or refuse a marriage license to a pregnant minor of any age, regardless of their parents' consent.

County clerks and family law attorneys in some of these states told Women's eNews that the legal contradiction was not an issue, either because it applied to too few marriages or because nothing had brought the conflict to legislators' attention.

"Sometimes legislative priorities are driven by circumstances," says Cindy Callahan, secretary of the Maryland State Bar Association's family and juvenile law section council. "In some ways it's not an issue because it hasn't been raised."

Conflicts between marriage and criminal codes can, however, embarrass a state when a case receives national media attention.

Georgia eliminated the pregnancy provision from its code in 2006 after 37 - year - old Lisa Lynette Clark was charged with child molestation, statutory rape and enticing a minor days after marrying the 15 - year - old who impregnated her.

Legal History

Rigel Oliveri, associate professor of law at the University of Missouri, says the history of statutory rape laws helps explain how these states have come to sanction and condemn the same act.

Oliveri, an expert on statutory rape laws, says the laws, which entered the U.S. legal system by way of English common law, were first intended to make men "take responsibility for a problem they created."

Today, she says, one of the legal rationales for statutory rape laws is to protect minors from predatory adults. But the laws' original intent of limiting out - of - wedlock births was complemented -- rather than contradicted -- by pregnancy exceptions that states placed on age restrictions on marriage.

See more stories tagged with: marriage, laws, statutory rape

Claire Bushey is a freelance journalist based in Chicago.

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