the married couple then moves to the State of Oregon (AoC: 18, unlike California, Law makes no mention of exemption for a spouse scroll down to 163.315 // Marriage: 18, no waiver for anyone under 17).
The married couple’s status is reported to the State.
Does Full Faith and Credit prevent Oregon from prosecuting the man for Statuatory Rape?
Could the State recognize the marriage but prohibit sexual activity until the girl turns 18?
If the couple were reported to have had sex in Oregon, would the factor of whether or not they had declared residence in Oregon cause the matter to be handled any differently? (Anything like: if they were vacationing in Oregon they be prohibited from having sex until they leave the State but if they declared residence in Oregon, took a job, enrolled in school, an exemption be granted to them to repect the marriage?)
There is no state in the country that will not recognize the lawful marriage of a 16 year old in any other state. Most states have a “…who is not the spouse of” clause in the sexual battery/statutory rape statutes that prevent prosecution. The ones that don’t have that, I belive just follow the common law idea that you can legally have consensual sex with your wife. That was the point of marriage in the first place all those years ago, wasn’t it? By definition, if the state did not allow them to have sex, they would not be recognizing the marriage, IMO.
To really put your Age of Consent vs Full Faith and Credit to the test, you’ll have to go younger than 16.
Didn’t Florida decide to not recognize the marriage of that old woman who married like a 10 year old in some other state? My memory is hazy. What ever happened with that?
No state need recognize a marriage that runs contrary to it’s public policy. Also if a couple live in state A, but cannot marry under it’s laws because of age or consanguinity and hop across the border to state B probally won’t have their marriage recognized by A since they were evading the laws of their home state. Now if a married couple from B moved to A their marriage would likely be recognized by A (SSM excluded). Interracial marriage isn’t as good a parallel as same-sex marriage as it would seem.
I understand that. Just pointing out that, in questions of marriage, it’s no longer sufficient in the United States to address only mixed-sex marriages.
The same-sex marriage issue also sets a clear and modern precedent that it is legally acceptable for one state to not give full faith and credit to another’s marriage laws on the grounds of “public policy”. And it seems quite plausible to me (even if it isn’t currently the case) that a state might decide that 16-year-olds marrying is contrary to public policy.
Historically, the very low age of marriage in various states is for one reason only: to create a possibility of legitimacy for the offspring of a pregnant teenager. Or pre-teen in some states at some times. (It was not because girls used to get married much earlier than they do today as a general practice. Although this did happen at times, it was never the societal norm in the U.S.) That’s why the lowest possible age of marriage for girls was, historically, lower than the lowest possible age of marriage for boys.
Statutory rape as a societal concern is more recent than the fear of illegitimacy. I can’t find in a quick search when the first laws were passed, but you can do a lot of reading about the 19th century without ever encountering the concept.
Historically, again, what a husband did with his wife was of little legal interest to the law. Marital rape was not a possibility; abuse was a matter more for relatives or clergy than the police, if it was anybody’s concern at all; and sex was presumed to be the man’s right.
Even though physical abuse is no longer tolerated, at least legally, marriage supersedes virtually all other laws when it comes to spousal sexual relations. Because statutory rape has become a societal issue, this does lead to a host of moral, if not legal, contradictions. It is the law in virtually every state that a teenage girl of a certain age in relation to her paramour is responsible enough to make the decision to have every kind of sex with a man for the rest of her life if she marries him but not responsible enough to make the decision to go part-way once with her boyfriend if they do not get married.
Even today, more than a half dozen states allow females to marry at a younger age than males. 12-year-old girls can still marry in Massachusetts and Kansas, which can only be ascribed to a holdover of the need for legitimacy of offspring. Legitimacy trumps everything, apparently.
Correct me if I’m wrong, but I believe California has no minimum age for marriage that is done with consent of both parties, parents of any involved minors and a judge. Now, I would imagine judges here are on average sane enough (or from the perspective of the rest of the country, insane, but not THAT insane) not to allow any marriages that would instantly raise controversy, but I wouldn’t claim that this could never happen. I also don’t know how that affects the California age of consent which is 18.
However, if indeed it is the case that all you need in california is parental consent and judicial consent, I don’t see that California would not recognize marriages of individuals younger than 18 from other states even though they would be under the age of consent.
By the way does anybody have a cite for the youngest married individual who was married in the state of California?
California’s statuatory rape law (linked in OP) states
bolding mine
So, in California, once married there can be no statuatory rape. Marriage under the age of 18 is permitted, as you mentioned and as linked to Wiki in the OP, if there is parental consent and approval from a judge.
Oregon law presents more of a dilemma. I don’t know how many other states would create the same dilemma, I found one example that failed to address the question I had in mind so I figured it was a valid question and used that example in the OP. Perhaps it’s the only one, perhaps there are others.
But with Oregon law, making no exceptions for marriage under the age of 17, and otherwise setting the age of consent for sex at 18, without stating an exception for spouses- unlike the California law, it seems that the state would be presented with a conflict in dealing with an out of state couple whose sexual relationship violated state law.
In fact, since age of consent in Oregon law does not state an exception for spouses, there could be intrastate conflict as well. With judical and parental consent, a 17 year old can marry but being under the age of 18 can not consent to sex. But since the 17 year old can not marry in Oregon without judical approval, I can accept that that implies judicial approval for the 17 year old to have otherwise illegal sex (though not spelled out in the AofC law).
With the hypothesized couple in the OP there seems to be greater conflict.
Could the state claim to satisfy Full Faith and Credit by recognizing the marriage but at the same time criminalizing sex between the husband and wife until such time as the younger one reaches the age of consent?
How about a married couple from Guyana, one spouse 40 years old and one spouse 14 years old? They’re having sex in Oregon having either immigrated there or they are on vacation (Yes, I know Full Faith and Credit refers to U.S. states recognizing contracts from other U.S. states. What would be applied to address a couple from another country?)