Not too long ago, our forefathers adopted a legal system whereby some people were considered other people’s property. Women didn’t fare much better. In a previous time, a person could not be prosecuted for sexually assaulting his wife. Perhaps that was considered part of marriage; perhaps it is was a vestige of the belief that women are subservient to men. Regardless, this is no longer the case.
However, there is peculiar inclusion of the phrase “not the spouse of the actor” in the sexual assault statute. "Child" is defined as “a person younger than 17 years of age who is not the spouse of the actor.” By statute, it then appears that a 20 year old could marry a 16 year old and not be guilty of statutory rape pursuant to the marriage defense.
Since the notoriety of the FLDS case, it is important to recognize that the minimum age to marry was raised shortly after the group relocated to Texas. While the minimum age to marry in Texas used to be 17 years old, under the new law a county clerk may not issue a marriage license if either applicant is under 18 years of age. However, there are two exceptions.
First, if an applicant is 16 years of age or older but under 18 years of age, a marriage license will be issued with written parental consent.
Second, a minor child at any age may petition a court for an order granting permission to marry. This would likely occur for minors under 16 years of age, or if parents refuse to consent to the marriage. The court will then appoint an attorney ad litem to represent the minor in the proceeding. If after a hearing the court, sitting without a jury, believes marriage to be in the best interest of the minor, the court, by order, shall grant the minor permission to marry.
Both of these safeguards would prevent a 25 year old from attempting to escape liability for sexual assault by attempting to marry the minor, but would allow mature high school students the opportunity to marry if their religious preference or cultural background encouraged such.
But what about a common law marriage? It only takes three things to form a common law marriage in Texas:
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The parties must have agreed to be married.
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The parties must have held themselves out as husband and wife. This is done by representing to others that they were married to each other.
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The parties must have lived together in this state as husband and wife.
Could a person simply claim to be married to a minor to escape liability?
In 2005, the legislature amended the statute on common law (also known as “informal marriages”) to prohibit a person under 18 years of age to be a party to an informal marriage. Thus, the only way in which a person can be married to a minor is with judicial consent or parental approval. |
