Legal Commentary

Yesterday's post about what the scope of criminal law should be with respect to adult sex with teens and teen sex with other teens (both in the familial and extra-familial contexts) generated some good comments. Today I'm interested in reactions to marriages with minors and between minors in both polygamous and monogamous situations.

What reactions do you have regarding what you think the law should be in a liberal democracy under the following conditions, and why? My tentative reactions appear after the jump.  For today's hypos, here are the basic facts: a 38 year old man, a Rhodes Scholar and HLS grad who is a high-ranking Mass. gov't official, meets and falls in love with a 16 year old male at a resort in Florida. (I've changed the hypo from yesterday, which involved a 15 year old.)  They fall in love and want to marry. Should the marriage be recognized under the following scenarios?

a) boy, who is of average maturity and intelligence for his age, invited and consented to the marriage proposal, and is unrelated to the adult

b) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the adult but never met the adult beforehand

c) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the adult, but lives in the adult's home in Mass.

d) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in the same residence

e) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, is the brother of the adult and lives apart from his brother in different states.

f) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the unrelated adult is not 38, but is 16 years old, also of average maturity and intelligence,

g)   boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the first cousin

h) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in a different state.

i)  boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in the same home.

j) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in a different state.

k) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in the same residence

l) change boy "victim" to female in the previous scenarios

m) change adult (or "other person") from male to female in previous scenarios

n) the two parties additionally fall in love with a third person, unrelated to the two parties, and she is 22 years old, and would like to join them in a group marriage.

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Here  (in the context of marriages) I am somewhat torn. I feel quite at peace with prohibiting all marriages involving those under 18. But I recognize that's an attitude informed by suspicion that consent to marriage is hard to justify across the board for minors under 18 even though I was willing to decriminalize teen sex with other teens or with adults if the teens are above a certain age (probably over 14) if certain preconditions were satisfied (such as the sex-ed license, the registration of the activity with the state, and the absence of co-habitation in the same residence, asymmetrical dependency, or a supervisorial relationship).

If that's the case, why is a teen's consent to marriage harder to credit than a teen's consent to have ongoing consensual sexual relations? I also wonder if anybody would be willing to credit a teen's consent to marry before they would be willing to credit a teen's consent to have sexual relations outside of marriage. (In other words, does marriage confer a teen's right to have sex with someone that wouldn't exist otherwise? If so, why?). Anyway, here is my quick sense of whose marriage licenses should be permitted. I am tempted to say that recognition of marriage and recognition of consent to sex should be tethered together; I do feel uncomfortable with the law authorizing 15 year olds getting married, which suggests I should revisit some of my decisions yesterday about 15 year olds having sex.

a) boy, who is of average maturity and intelligence for his age, invited and consented to the marriage proposal, and is unrelated to the adult

Markel: should be permissible if boy has rec'd a sex-ed license and the unrelated person is not in a position of presumptive authority over the 16 year old boy, such as a teacher or boy scout troop leader.

b) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the adult but never met the adult beforehand

Markel: should be permissible if boy has rec'd a sex-ed license and the unrelated person is not in a position of presumptive authority over the 16 year old boy, such as a teacher or boy scout troop leader.

c) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the adult, but lives in the adult's home in Mass.

Markel: should be viewed skeptically because a presumption of coercion should exist regarding X's  sexual relations with a minor living in the same home as the adult

d) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in the same residence

Markel: should be viewed skeptically because a presumption of coercion should exist regarding X's  sexual relations with a minor living in the same home as the adult

e) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, is the brother of the adult and lives apart from his brother in different states.

Markel: should be permissible if boy has rec'd a sex-ed license and the person is not in a position of presumptive authority over the 16 year old boy.

f) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the unrelated adult is not 38, but is 16 years old, also of average maturity and intelligence

Markel: should be permissible if both have rec'd a sex-ed license 

g)   boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the first cousin

Markel: should be permissible if both have rec'd a sex-ed license

h) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in a different state.

Markel: should be permissible if both have rec'd a sex-ed license

i)  boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in the same home.

Markel: should not be recognized

j) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in a different state.

Markel: should be permissible

k) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in the same residence

Markel: should be permissible

l) change boy  to female in the previous scenarios

Markel: same answers

m) change adult (or "other person") from male to female in previous scenarios

Markel: same answers

n) Plural marriage situation

Markel: same principles would generally apply to polygamy situation.