Potentially Coerced Marriages and Statutory Rape Laws

There is one twist on the foreign coerced marriages question that I wanted to deal with separately. As I mentioned earlier, marriage provides the poorer partner (in the scenario my correspondent was describing, usually a young woman) with important rights. Refusing to recognize Islamic law marriages on the ground that some of them might be coerced might then just add to the young woman’s problems.

But marriage does give the wealthy older husband one important legal right — the right to exemption from statutory rape laws. In California, for instance, any sex with an under-18-year-old is a crime, but not if the under-18-year-old is one’s spouse. Sex with an under-14-year-old is still a crime, even if the parties are married; but as best I can tell, sex with a 14-to-17-year-old spouse is not criminal in California. And marriages of under-18-year-olds can generally happen even in the U.S., with parental consent. There is probably consensual, noncriminal sex going involving an marriage under-18-year-old going on in California even as you read this, likely involving a person who was lawfully married in the U.S. You might think that’s good or you might think that it’s bad. Still, given that California law recognizes the spousal statutory rape exception as to marriages entered into in the U.S., I don’t see why it should take a different view as to marriages entered into outside the U.S.

What if the marriage, whether entered into in the U.S. or outside, was coerced? Sex within that marriage would still be rape if it itself is procured by force or threat of force. But say that a 16-year-old girl was forced into the marriage outside the U.S. — maybe even with the active participation of a husband who was a U.S. citizen or U.S. resident at the time — but is now regretfully reconciled to the situation, perhaps because she is now pregnant and doesn’t want to be out on her own, or perhaps because she fears that she would be condemned by her family and community if she left. What should the law do about that?

I suspect that some criminal punishment for the original coercion could be provided for, even if the coercion was outside the U.S., at least if one of the coercers was a U.S. resident (though of course all that assumes that somehow the coercion comes to light). And if one invalidates the marriage on the grounds that it was coerced, then one might be able to prosecute the husband for statutory rape, assuming the statute of limitation hasn’t run on that.

But again, this would happen only at considerable practical expense to the woman. And in any event, it would only make sense if (1) there’s actual reason to think that the marriage was coerced, and (2) the rule applies to coerced marriages without regard to whether they were ratified by a foreign secular legal system or a foreign religious legal system. Invalidating noncoerced marriages, even underage marriages in a context where such marriages are generally recognized by U.S. law, simply because it would incidentally facilitate statutory rape prosecutions as to coerced marriages, strikes me as neither practically sensible nor just. And it is also neither practically sensible nor fair to invalidate marriages that were licensed under an Islamic legal system but not otherwise identical marriages licensed under a secular legal system.