Law: April 2008 Archives

David Bernstein raises some good questions about how the FLDS case has been handled. But he quotes an op-ed that seems to me to be dead wrong:

You've ruled the existence of five girls between 16 and 19 who were pregnant or had children was evidence of systematic abuse, even though in Texas 16-year-olds can marry with parental consent. You've ruled young toddlers are in "immediate" danger because of their parents' beliefs or what might happen 15 years from now, not because anyone abuses them.

Excuse me, but unless these girls were the first wife of the father of their children, they weren't married. Texas allows parents to consent to marriages of their children when they're 16. They don't allow parents to consent to non-marital sex with a dude who's already married to someone else but wants to have a pretend wife in addition. That's not marital sex, since they're not married. Since the men are already married, there's no marriage the parents could have consented to, and that makes it rape. Automatically. The girl can't consent, and the parents can't consent to an illegal marriage. The legal question ends right there. This is child abuse.

Someone might try to argue that the law doesn't track with the right answers to such questions when you're talking about what counts as abuse morally speaking. But that's not the issue here. What matters is whether it's legally abuse, and it's legally rape if the man in question is already married to someone else and thus can't have gotten genuine consent to a legal marriage from the girl's parents.

It's hard to resist commenting on what GatoRat says in the comments:

Several of those old girls already have children. If a fifteen-year-old is pregnant with her third child, were the first two immaculate conceptions?"

It is correct to point out that there were clearly pre-16 cases. It is not correct to confuse immaculate conception with virginal conception. I don't see how the idea of a child being conceived without original sin is relevant at all to this discussion.


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