Child Marriage or Statutory Rape? A Comparison of Law and Practice Across the United States

Abstract

Purpose: In many U.S. states, children can legally marry at an earlier age than they can legally consent to sex, leading to situations in which sex between spouses may be a criminal act. Some states exempt sex between married persons from their definition of statutory rape, which may create perverse incentives for child marriage. We estimated the number of child marriages that violated statutory rape laws across the United States since January 1, 2000.

Methods: We created a longitudinal database of statutory rape laws in place from 2000 to 2020 in each state. Using data from marriage certificates filed in 44 states and Washington, DC, we compared the age of married spouses with the text of state-specific statutory rape laws in place at the time the marriages occurred.

Results: Child marriages violated statutory rape laws in 14 states. The proportion of child marriages that violated statutory rape laws varied from 1% to over 50%. In 33 states, some or all statutory rape laws exempted sex between married couples from the definition of crimes. In these states, the proportion of child marriages that would have been crimes, without these exemptions, varied from less than 1% to over 80%.

Conclusions: Our results highlight the blurred legal and conceptual boundaries between child marriage and sexual violence. The simultaneous legality of child marriage and marital exemptions to statutory rape laws provide legal loopholes for sexual acts with children that would otherwise be considered crimes. Marital exemptions to statutory rape laws may also incentivize a substantial portion of child marriages.

Keywords: Child marriage; Statutory rape; United States.