Why is marriage with a minor legal in the US while sex with a minor is not?

Question

It seems that marriage with minor is legal in many states.

Yet sex with a minor is not.

So they can't consummate the marriage before the child is of legal age?

In most cases, minimum marriage age is lower than minimum age of consent.

States vary.

https://www.independent.co.uk/news/world/americas/child-marriage-us-states-america-minimum-age-bride-girls-a9467121.html

It seems to me that sex by itself is a relatively minor issue compared to marriage, being pregnant, and losing virginity (which is a non-issue for a boy). Notice all of those almost always involve sex.

So it puzzles me that sex is illegal but marriage and having children is legal with minor.

Answer 1

To understand rape laws, you need to understand the harm that rape is considered to have. Modern Western society greatly focuses on consent, and the harm of rape is considered to be a violation of consent. Statutory rape laws are therefore framed as being based on the premise that a minor cannot give meaningful consent to sex.

In the past, and in more traditional societies, however, there was more focus on purity, which leads to the harm of rape being seen as a woman's loss of "virtue". Once a woman is married to a man, her having sex with that man is not unvirtuous, and in fact is her duty. Thus, rape has traditionally been considered to inherently require a man have sex with a woman or girl not his wife.

Marriage has excluded an act from not only statutory rape, but rape in general, for much of the history of the US. Asserting that the girl you had sex with was "unchaste" has also been a defense to a charge of statutory rape for much of the history of the US, on the premise that you cannot take a girl's virtue if she has none. And on the other hand, having sex with someone you are not married to has been a crime for much of the history of the US, even with the consent of the other party.

A related traditional idea is that marriage is an institution by which a man obligates himself to support a woman and their children. In traditional societies, woman are largely dependent on men. Entering into a sexual relationship without a firm commitment to financial support is thus a dangerous thing for a woman to do. For a man to take advantage of a girl's youth to seduce her into doing so is exploitive. But if he marries her first, then he is, from a traditional society's viewpoint, giving the girl a "fair exchange".

Yet another traditional idea is that a father has a claim over his daughter. If he consents to her being married, he relinquishes this claim over to the husband. If a girl is unmarried, however, and a man seduces her, then, in this worldview, he has done wrong to the father, and the state can prosecute him on the father's behalf.

Answer 2

The ultimate answer as to why any given law is the way it is, as opposed to some other way that it might be, is because the legislature, or the courts if it is part of the court-made common law, chose to make it that way. Law is a human institution, and is not always logical or consistent.

However, in this particular case, prohibitions on sex with a person under a given age (not always the age of majority, often known as the "age of consent") have a long history as a part of the law, which can be discussed here.

The question seems to be missing a key detail. Where marriage is legal below the age of consent, sex within a legal marriage is normally an exception to statutory rape laws, that is laws against sex with a person under the age of consent.

For example, the Arizona Criminal Code § 13-1405 provides in pertinent part that:

A. A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.

But AZ Code § 13-1407 provides in pertinent part that:

D. It is a defense to a prosecution pursuant to section 13-1404 or 13-1405 that the person was the spouse of the other person at the time of commission of the act. It is not a defense to a prosecution pursuant to section 13-1406 that the defendant was the spouse of the victim at the time of commission of the act. [§ 13-1406 prohibits sexual assault, defined as sex without the other party's consent. It includes classic forcible rape]

...

F. It is a defense to a prosecution pursuant to sections 13-1405 and 13-3560 if the victim is fifteen, sixteen or seventeen years of age, the defendant is under nineteen years of age or attending high school and is no more than twenty-four months older than the victim and the conduct is consensual.

California Penal Code Section 261.5 provides in pertinent part that:

261.5. (a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a minor is a person under the age of 18 years and an adult is a person who is at least 18 years of age. [emphasis added]

Colorado Code [§ 18-3-402] provides in pertinent part that:

(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:

...

(d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or [emphasis added]

(e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; [emphasis added]

The Wikipedia article "Statutory rape" lists several reasons that have been given for such laws. It states:

The original purpose of statutory rape laws was to protect young, unwed females from males who might impregnate them and not take responsibility by providing support for the child. In the past, the solution to such problems was often a shotgun wedding, a forced marriage called for by the parents of the girl in question. This rationale aims to preserve the marriageability of the girl and to prevent unwanted teenage pregnancy. [citations omitted]

Obviously, this rationale does not apply if the parties are married, and the man is legally obliged to support his wife and child, as was the usual practice before modern times.

The Wikipedia article also states:

Statutory rape laws are based on the premise that an individual is legally incapable of consenting to sexual intercourse until that person reaches a certain age. The law mandates that even if he or she willingly engages in sexual intercourse, the sex is not consensual.

When an underage marriage requires parental consent, as it does in some US states, this rationale is less applicable.

Another rationale comes from the fact that minors are generally economically, socially, and legally unequal to adults. By making it illegal for an adult to have sex with a minor, statutory rape laws aim to give the minor some protection against adults in a position of power over the youth.

Again parental consent provides some protection against this concern, and as the classic adult predator would not be willing to marry the victim, an exception for marriage does not enable such predators a free pass.

In general social policy and public opinion have treated sex within marriage differently, and more favorably, than sex outside of marriage. Rules in the common-law system reflect this. The legal requirements of a marriage have been thought to offer protection (both for the underage person and for society) against the problems that underage sex would otherwise cause, and so consensual sex with a person under the age of consent within a lawful marriage is generally legal. It might be debated whether this is good reasoning, and one might argue that laws on this point should be changed. There have been changes, piecemeal, state by state, not all in the same direction. One common, although not invariable, change is so-called "Romeo and Juliet" laws, which remove or reduce criminal penalties when the "adult" is not that much older than the "child" (often within 3 years of age, although laws vary by state within the US) and the sex was consensual. These are described at greater length in the Wikipedia article. Note that the AZ and CO laws quoted above have such provisions, and that CA reduces penalties in such cases in a section not quoted.

Details of the various statutory rape laws within the US as of 2003 can be found at "Statutory Rape Laws By State". This gives specific legal citations to the laws involved. These are often still valid even if the details of the law have changed.

Answer 3

The premise of the post is incorrect if "minor" is given its usual meaning in the U.S. of under age eighteen (except in California, Idaho, and North Dakota, and for virgins who live a "caste life" in Massachusetts).

Sex with a minor is legal in the vast majority of U.S. states to some extent, although commercial sex (i.e. prostitution or trafficked sex for money) with a minor, and child pornography are illegal in the U.S. and punished routinely and severely.

The median person in the U.S. has sex for the first time at age 16 (which means that a large share of the population has sex before age 16) and prosecutions are very rare, even though many instances of statutory rape present (especially in the most strict states). The percentage of instances of minors having sex that would constitute statutory rape if the minor was not married that are not statutory rape because the minor is married is tiny.

While prosecutors can prosecute statutory rape charges in cases that the prosecutors believe are consensual and involve post-pubescent parties, they rarely do so over the objection of the alleged victim, on the theory that this does not advance justice or the well being of the alleged victim. Also, crimes that are never reported aren't prosecuted, which people who consensually engage in sex that constitutes statutory rape rarely report.

Minors can typically marry only with parental or court consent (although some states allow girls who are sixteen or older to marry), although there are exceptions.

As @DavidSiegel notes, all statutory rape laws in the U.S. expressly exempt lawfully married couples (at least for post-pubescent married people). Historically, marriage was a defense to all forms of rape charges. Now, in most U.S. states (if not all), it is a defense only to statutory rape charges.

Some context is desirable. Consider the case of New Jersey (chosen simply because I could easily find data on point; this answer contains some plagiarism, i.e. quotations of myself without express quotation marks or attribution).

In New Jersey, it is statutory rape for someone 18 or older to have sex with someone younger than 16, even if the sex is consensual.

I don't have exact statistics on statutory rape prosecutions in New Jersey, but if it is prosecuted at a similar rate to Colorado, there are less than 1000 misdemeanor rape prosecutions a year only some of which are statutory rape prosecutions (a prosecution of statutory rape involving someone old enough to marry is usually a misdemeanor).

Of course, the vast majority of cases of sex with minors involve neither marriage nor pregnancy.

There were roughly 90,000 girls in New Jersey who were aged 13-15 years old and 60,000 girls who were 16 or 17 years old, when the last census was taken in the year 2010. According to an opinion piece in the New York Times (corrected from the original erroneous version of the article):

3,481 children were married in New Jersey between 1995 and 2012. Most were age 16 or 17 and married with parental consent, but 163 were between ages 13 and 15, meaning a judge approved their marriages. . . . 91 percent of the children were married to adults, often at ages or with age differences that could have triggered statutory-rape charges, not a marriage license.

This is about 193 children including 9 between ages 13 and 15, in an average year.

Overwhelmingly, people who marry before age 18 are girls rather than boys, and this is even more strongly the case when people marry between ages 13 and 15. So, the annual marriage rate for girls between 13 and 15 in New Jersey in the relevant time period is approximately 1 in 10,000 (i.e. 0.01%). In truth, there are probably significantly more 15 year olds than 14 years olds, and significantly more 14 year olds than 13 year olds in that sample.

The odds that a New Jersey girl will marry any time in her life before age 16 is about 0.03%.

The annual marriage rate for girls aged 16 and 17 in New Jersey in the relevant time period is about 1 in 326 (i.e. 0.3%).

The odds that a New Jersey girl will marry before turning 18 in New Jersey is about 0.63% (i.e. about 1 in 159). The other 99.37% of New Jersey girls will not marry before age 18, although many who do not marry will have children.

There were about 1,030 children born to mothers aged 15 to 17 in New Jersey in 2014 (a rate of 5.8 per 1,000 girls aged 15-17 down 15% from 2013 and down 78% from a peak in 1991), and about 37 children born to mothers under age 15 in New Jersey in 2014. Thus, there were 1,067 children born to mothers under age 18 in New Jersey in 2014 and roughly 193 marriages of girls under the age of eighteen.

Black and Hispanic girls are roughly six times as likely to be mothers under age eighteen as white girls in New Jersey.

There are about 5.5 teen births by mothers under the age of 18 in New Jersey for every marriage by a girl under the age of 18 in New Jersey (8% of the births by teens under the age of eighteen are second or later births). About 94% of births to mothers aged 15 to 19 in New Jersey are non-marital. So, there were fewer than 64 births each year in New Jersey to married mothers under the age of eighteen in 2014. Indeed, the number is probably significantly less because if 15-17 year old mothers were equally likely to be married as 18-19 year old mothers in New Jersey, the number of married teen 15-17 year old mothers would be 18 in 2014, and in fact, it is almost surely the case that 18-19 year old mothers in New Jersey are at least somewhat more likely to be married than 15-17 year old mothers in New Jersey.

The rate at which teens under the age of eighteen become pregnant in New Jersey is roughly 8 times the number of births to teens under the age of eighteen in New Jersey. Some of that is the statistical quirk the arises because more than three-quarters of seventeen year olds who get pregnant ultimately give birth when they are eighteen. But, probably something like a third of those pregnancies of girls under eighteen years of age end in miscarriage or stillbirth, and roughly half of those pregnancies are terminated with abortions.

The facts suggest a couple of things.

First, the nearly 80% decline in births to mothers under eighteen since 1991 in New Jersey has probably been accompanied by a similarly great decline in the number of marriages by women under the age of eighteen in New Jersey since then. So, there were probably far fewer than 193 teens under the age of eighteen and were probably fewer than 9 teens under the age of sixteen married in 2014 in New Jersey.

Second, it suggests that most teenaged girls under eighteen who marry with judicial or parental consent in New Jersey, rather than being pregnant, are already mothers of the husband's children by the time that they marry in most cases. This is almost always the case when judicial consent to marriage of a girl (it is almost always a girl) under the age of sixteen is given, and there is additional screening from domestic abuse in judicial consent cases, often by a court appointed social worker or guardian ad litem.

If you are already a mother, being married give you more legal rights vis-a-vis your partner, than not being married (e.g. property division and alimony and a presumption of paternity for future births without having to prove it), and in the U.S. unlike lots of jurisdictions where child marriage is a problem, "no fault" divorce is widely available. So, the presumption that a minor who gets married is worse off than a minor who does not get married in the U.S. is mostly wrong.

Statutory rape prosecutions in these cases, which leave the teen mother and her children without a source of economic support and with a father-coparent who is less employable due to a criminal conviction for a sex offense are often not in the mother and children's interest.

Cases of minors de facto forced into marriage with much older men, while they are not pregnant from a relationship entered into without parental sanction are extremely rare in the U.S. and when they happen in the U.S. they often promptly end in divorce. This is very different from non-U.S. practice where divorce is often extreme difficult and girls who married as minors have often not initiated the relationships and may not be free to say no to those relationships.

In India, in contrast, where forced child marriage is a serious problem, such forced child marriages are declared void, and the husbands are denied the immunity from criminal liability for statutory rape that would otherwise apply.