EDITORIAL: Marital exemption loopholes that endanger children
Dec. 9—When Monongalia County Prosecutor Perri Jo DeChristopher addressed legislators Monday and asked them to repeal language in West Virginia's criminal code that allowed a marital exemption to sexual abuse charges, she brought up her concerns about how such an exemption impacts married minors. After all, she pointed out, 16-year-olds can get married with parental consent, but technically anyone under 16—she used the example of 12-year-olds—can get married with a court order.
Sen. Robert Karnes, R-Randolph—who scoffed at the idea of spousal sexual abuse—scoffed even more at the thought of married children. "I assume there's probably very few people, " he said, "probably about as many 10-or 11-year-olds getting married in West Virginia, that enter into a marriage contract without understanding that sex might well be a part of it, so there is something of an implied contract there ...."
Karnes pushed DeChristopher on how many married 11-and 12-year-olds there were in West Virginia. She said she could only speak for Monongalia County, but none as far as she knew.
We found eight potential cases throughout the state.
Sifting through DHHR vital statistics reports for 2000 through 2018, we found eight incidences of a bride between the ages of 10 and 14 getting married to a man who was 15 years old or older. The data was given in ranges, so we do not have the exact ages, and there was no data for brides under age 10. According to the reports, in 2001, 2004, 2005, 2010 and 2015, a bride between ages 10 and 14 married a groom between ages 15 and 19 ; in 2003 and 2005, to a groom between 20 and 24 years old ; and in 2006, to a groom between 25 and 29 years old.
Those are just the cases we found involving potential 11-and 12-year-olds. According to the nonprofit Unchained at Last, which is dedicated to ending child marriages in the U.S., there were 3, 663 children married in West Virginia from 2000 to 2021, 94 % of which involved girls under 18 married to adult men.
So DeChristopher's fears the marriage exemption to sexual abuse charges could impact children are not unfounded. While marriages involving a minor to an adult are rare, the data show that such unions happen, and those children should not be deprived of justice because they are married to their assailant.
As we mentioned yesterday, the key difference between a sexual assault and a sexual abuse charge is that sexual assault involves intercourse or penetration without consent and is (almost) always a crime regardless of marital status. For sexual abuse, there is only unwanted sexual contact—the legal definition of which excludes contact between married individuals.
However, there's a strange loophole that directly impacts children. West Virginia State Code §61-8B-3-2 says, as one of the two criteria for whether a crime is sexual assault in the first degree, "the person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is younger than twelve years old and is not married to that person " (emphasis added). In theory, a child between the ages of 0 and 11 years and 364 days can be raped by a spouse (who is 14 or over) and have no legal recourse, but once the child reaches 12, they are once again covered by the sexual assault law.
Unfortunately, West Virginia, like many states, still has laws on the books that are outdated and riddled with problematic language. They may not be actively used, but their existence in state code means that they can be. So while the Legislature is removing the marital exemption from the definition of "sexual contact "—which it should—legislators should make sure to remove the exemption from §61-8B-3-2 as well. And finally establish a firm minimum age for marriage while they're at it.
