Legal Commentary

Coerced Marriages

By Eugene Volokh

A commenter on the Why American Courts Should Sometimes Consider Islamic Court Rulings thread writes,

The scenario we commenters have discussed here more than once is the possibility that an arranged and nonconsensual, or at least coerced, marriage takes place in another country, and then the couple moves here. We?ve disagreed as to whether that marriage and what goes on in its context should be treated exactly like the usual American marriage, into which both partners entered willingly.

This is an interesting problem, but refusing to recognize Islamic court rulings is entirely the wrong way of responding to the problem. First, many marriages entered into under Islamic law ? which, as I mentioned, is the normal way that Muslim couples would get married in Lebanon, Israel, Jordan, parts of the Philippines, and in many other places ? are not coerced. Second, coerced marriages could well be entered into in countries which provide for civil-law marriage; it?s not like civil courts routinely investigate whether a marriage is coerced.

But beyond that, if the worry is coercion (which I assume means physical coercion, or psychological or economic coercion of minors, rather than just coercion of adults through family or community pressure), refusing to recognize the marriage will often compound the harm to the victim. Say an 18-year-old girl is forced to marry a rich older man, perhaps through threat of beatings or worse from her family. She gets pregnant, comes to America, and lives with the man for years.

What good would refusing to recognize the marriage do to her? It wouldn?t protect her from being raped, since the spousal rape exception is no longer recognized in the U.S (except maybe in South Carolina). Nor does it matter whether the law of the country where the marriage took place has a spousal rape exception. American recognition of the foreign marriage simply makes the couple married under U.S. law, and thus makes applicable the U.S. law relevant to spouses? rights and duties. It does not make applicable within the U.S. any foreign spousal rape exception.

But it would mean that she generally wouldn?t be able to get spousal support, community property rights, inheritance if the husband dies without a will, and so on. Do we really want to further victimize the poor woman, precisely because she had been victimized by the marriage in the first place?

Full post as published by The Volokh Conspiracy on November 26, 2010 (boomark / email).