Wednesday, July 19, 2017

What's Wrong With Shotgun Weddings?

by Sherry F. Colb

My column for this week discusses the current state of California law, under which there is no minimum age requirement for marriage. There is a bill under consideration that would modify the law somewhat, but it has been amended to remove the age of 18 requirement and thus only adds some oversight in family court to prevent coercion. As I discuss in my column, the California statutory rape law, which requires that a person be 18 to consent to sex, suggests that sex with minors is inherently coercive and therefore not properly subject to oversight rather than outright prohibition.

In this post, I want to discuss one of the reasons that people cite for permitting children to get married, with parental (and court) permission: an unplanned pregnancy.

At first glance, this may seem like a sensible reason for allowing minors to marry. After all, if a girl is already pregnant and is planning to keep her baby, she will benefit from having a partner who can help with the baby, both financially and otherwise. Furthermore,  the reality is that the two people involved are going to be roped together for the rest of their lives anyway, because they have a child together, so we might as well allow them to marry and make the family that will exist in any event a whole rather than a "broken" family.

The problem with this argument is that marriage does not transform a girl who becomes pregnant while still a minor into an adult. She is still someone who is, under the ordinary law governing sexual relations, incapable of giving true consent to sex. Permitting her to marry the father of the pregnancy does not just provide a potentially helpful partner for taking care of the child. It also authorizes the father to have sex with the girl, despite her age-related incapacity to consent.

Indeed, the father of the pregnancy is already a criminal for having had sex (in order to impregnate her in the first place) with a minor to whom he was not married. To allow the two to marry thus harkens back to the Biblical approach to rape, whereby the rapist could remedy his misconduct by marrying the victim. The thinking behind this approach is that rape is a crime because it lowers the marriage value of the victim, and the rapist can therefore redeem himself by acting on the "you break it, you buy it" principle and marrying the girl or woman at issue.

To add to the questionable nature of child marriages as a way to handle an unplanned pregnancy, consider the fact that it may be the parents of the pregnant girl who are most interested in having her marry the father of her child. After all, if he is out of the picture, then they may face the stigma of having a child with an out-of-wedlock baby (especially if they are religious), and they may also need to provide financial support for their daughter's child. Given these motivations, the parents (who must give consent to the child marriage) may actually be inclined to pressure their daughter (and the father of her pregnancy) to marry, thus adding to her incapacity to consent because of her age the coerciveness of the "shotgun wedding," where a parent insists on a wedding because his daughter is pregnant.

If the child and her boyfriend remain a couple until they are actually adults, and if he helps with the child notwithstanding his not being married to the mother, then the two have plenty of time to marry when she (or both she and he) reach the age of 18. This is actually an extremely young age at which to marry, but at least it excludes minors from this very adult institution.

As I argued in my column, the law should protect children from sex to which they still lack the full capacity to consent. That includes (and may be especially important for) children who become pregnant as a result of statutory rape. A child who is carrying another child is highly vulnerable to the sort of coercion that can come from parents who frown upon an unwed pregnancy. She also remains, despite her condition, too young to be consenting not only to sex but to a lifetime commitment to a marital partner. Despite its apparent attractiveness as a reason to permit minors to marry, an unplanned pregnancy does not defeat the arguments for maintaining a minimum age of 18 for getting married. If anything, it highlights a pitfall of failing to do so.