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85 UMKC L. Rev. 343 (2016-2017)
Addressing the Inconsistency between Statutory Rape Laws and Underage Marriage: Abolishing Early Marriage and Removing the Spousal Exemption to Statutory Rape

handle is hein.journals/umkc85 and id is 359 raw text is: 

                       STATUTORY RAPE

                             Erin K. Jackson*

Before a girl can legally consent to sex, her parents can consent to her marriage.
In an age of yes means yes campaigns, little attention is given to the thousands
of girls who are too young to consent to sex, but whose sexual partners are
legally their statutory rapists. Some states go so far as to shield statutory rapists
from prosecution if they marry their underage victims-a marriage that is made
possible only by the intervention of the girl's parents or a judge. These girls are
frequently pregnant. They often  fall victim to emotional manipulation or
domestic violence. They misperceive the nature of marriage and the true essence
of freely-given consent, and they resent legal and parental impositions into their
romances. By nature of their minority, from which the statutory rape laws seek to
protect them,  they are  particularly susceptible to emotional and sexual
manipulation. For these reasons, child marriage-even if performed under the
guise of parental or judicial approval-is wholly inconsistent with the American
legal system's approach towards  the age of majority, sexual consent, and
statutory rape.

This article argues that underage marriage should be abolished in its entirety. Just
as a parent or judge cannot substitute their consent for a girl's consent to sexual
activity, they should not be allowed to substitute their consent to her marriage.
Such  marriages allow adults to offer their consent to a minor girl's ongoing
statutory rape. This yields an intolerably inconsistent result and creates a vast
opportunity for sexual and domestic abuse. In the jurisdictions where a spousal
exemption or defense to statutory rape remains, they should be removed. One
should not avoid criminal consequences for statutory rape simply by marrying
the girl post-rape. Such defenses are permitted in our criminal justice system by
allowing an after-the-crime opportunity to further violate the victim.

The  author contends that childhood marriage can be prohibited, and statutory
rape laws can be tightened, within a framework of sexual autonomy and knowing
consent. Rather than arguing that girls should abstain from sex, the author argues
that society should not turn a blind eye to their sex with adult men. The stakes are
high, and the consequences are real: pregnancy, abuse, emotional manipulation,
and financial control. Childhood marriage violates these girls' right to develop a
healthy and  age-appropriate sexual identity, and the spousal prosecution
exemption creates a dangerous opportunity for future victimization.

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