Just ask their parents first.
by Patricia J. Williams, published in The Nation Magazine, December 15, 2015
In an eyebrow-raising interview with Fox News host Sean Hannity, the soon-to-be-defeated Alabama senatorial candidate Roy Moore—accused of molesting a 14-year-old when he was in his 30s, and of pursuing and harassing at least eight other teenagers while a district attorney—stated that he couldn’t remember dating teenagers at all… but that if he had, he would certainly have asked their parents first.
The allegations were greeted with a collective ho-hum by many Alabamians. “It was different back then,” some have shrugged, as though that made it more acceptable. But this is patently not true: Let us not forget that in the 1950s, America and the world condemned Jerry Lee Lewis, then 22 and divorced twice, when he married his 13-year-old cousin. It was wrong then, and it is just as wrong today.
And so one must be concerned that there is a larger problem here than merely Roy Moore. Indeed, in one astonishing interview on MSNBC, Moore’s attorney, Trenton Garmon, appealed to some sort of broad, even global, social consensus, stating that “Culturally speaking, there are differences…. In other countries, there’s arrangements through parents for what we would refer to as consensual marriages.”
The sad truth is that the United States tolerates a surprisingly high rate of child marriage for an industrialized nation. Although the age of consent to marry is pretty uniformly 18 across most of the country, many states allow exceptions, such as in instances of pregnancy or parental consent. As a result, within the past 15 years, at least 207,000 children have gotten married in the United States. Of that number, 87 percent were girls, and only 14 percent were married to other minors. More than 1,000 of those children were 14 or under, including three 10-year-olds.
Committing a crime like statutory rape against a minor is, in the jurisprudence of most modern nations, a violation of public safety and community health. In denying children the capacity to consent, we collectively recognize the particular vulnerability of the very young. Their cognitive systems are not at the same level as adults’, and their executive function is not fully developed. We don’t let them sign contracts and are more forgiving of their follies.
We do this, or ought to, as a matter of human rights. The Declaration of the Rights of the Child, which mandates the protection of children against all forms of exploitation, was endorsed by the United Nations in 1959 and adopted as an international convention in 1989. Madeleine Albright, then our UN ambassador, signed it in 1995, but Congress never ratified the convention. The reason should be very familiar to Southerners like Moore: states’ rights, as well as a purported interference with parental rights over children.
The latter is no doubt why Moore’s first line of defense was that, if parents had given him “permission,” there couldn’t be a problem. This way of thinking is not unique. During a debate about requiring children to be vaccinated before entering public schools, Kentucky Senator Rand Paul asserted: “The state doesn’t own your children. Parents own the children, and it is an issue of freedom.”
One way of understanding parental “ownership” is that it privatizes a public or constitutional problem. Resolving matters that infringe upon the autonomy of another person, even one’s child, by private mechanisms vests a disproportionate, even whimsical amount of control in parents. That tension, between the public interest in protecting children and the freedom of parents to raise their families as they see fit, is often tested in both law and politics—for example, the “consent” given by some parents allowing their children to be paddled by schoolteachers; or withholding consent for a blood transfusion on religious grounds, risking a child’s health; or whatever interest is supposedly served when a parent grants permission for a 10-year-old girl to marry a 31-year-old man, as happened in Tennessee in 2001.
It’s a miscarriage of justice when parents are allowed to compromise the well-being of their children. And yet it is perhaps not surprising that such marriages of very young girls to older men are more likely to occur within contexts of economic distress. Says Dr. Nicholas Syrett, author of American Child Bride: A History of Minors and Marriage in the United States, “This is a rural phenomenon, and it is a phenomenon of poverty.”
In this sense, it is akin in structure to the nondisclosure agreements that have protected men, like Bill O’Reilly and Harvey Weinstein, who harass or rape their employees: a private contract used as a shield against the collective or public sanction of criminal law. But one shouldn’t be able to buy one’s way out of such public arrangements. Contract law must never be a cover for licentiousness. Such corruption essentially buys and sells—traffics, in other words—the larger obligations of civic regard and human dignity.
The day before the election, I thought of what Doug Jones—the next senator of Alabama—said: “Men who hurt little girls should go to jail and not the United States Senate.” It was a double-edged allusion to the fact that Jones was also the prosecutor who successfully convicted two Klan members of bombing the Birmingham church where four little black girls were killed in 1963.
In the end, I was reminded once again of a story that continually haunts me. In his book Race, the great Studs Terkel interviewed a white woman named June. As a child, she had been sexually assaulted repeatedly by her father and an uncle; June told her mother several times but was never believed. One day, she was with her family in a department store when her grandmother saw a black man going about his own business on the other side of the aisles. June’s grandmother and mother gathered the child close, worried that this man would accost her in a state of rapacious desire. June said that was when she realized something quite crazy was going on: Her family had projected all of their fears onto that dark and distant stranger, yet they couldn’t grasp that she was being molested right beneath their noses, in the supposed sanctity of home.