Too young to marry but old enough to have sex?

Each year, 15 million girls marry before the age of 18 around the world. Breaking this down - every day 41,000 girls get married; every minute 28 girls get married; every 2 seconds a girl gets married.

In Sub-Saharan Africa, it is projected that the number of child brides could double by 2050. On average, 1 out of 4 girls in Ghana is married before their 18th birthday.

These statistics from UNICEF and Ghana’s Multiple Indicator Cluster Survey (MICS) show the worrying trends of child marriage across the world which has necessitated the global call for action to eliminate child marriage by 2030.

Ghana, with the support of UNICEF, launched its campaign to end child marriage in January 2016 and these efforts are sparking interesting debates across the country. One such debate is the issue of the disparities between the age of consent to sex and the legal age for marriage.

The motion is that the gap of two years between the age of consent and the legal age for marriage encourages teenage pregnancy which is a key driver of child marriage. This article seeks to bring out the legal aspects of the debate, focusing on the implications of the gap on child marriage in Ghana.

The age of consent to sex and the legal age for marriage in Ghana are quite similar to international ranges. Though there are no international guidelines on the age of consent, it often ranges from age 13 to 18. It is very common to find the age of consent lower than the legal age for marriage across countries. The age for marriage, on the other hand, averages at 18 for most of the world and is guided by international conventions such as the UN’s convention on the Rights of the Child.

The legal age for marriage in Ghana is enshrined in the 1998 Children’s Act of Ghana and the Criminal Code Act, setting it at 18 years for all forms of marriages. Before this one standard for all, it used to be varied with the age being determined by customary laws (when they reached puberty), the marriage ordinance and religious laws.

This is not the first time we are having this debate. In 1998, debates leading to the passage of the Children’s Act included where the age of consent was to be. While some argued for it to be raised to 16, others wanted it to be on par with the age for marriage. So, it is interesting that after almost two decades, this debate has not gone away, mainly as a result of the campaign to end child marriage in Ghana by 2030.

The main proponents for raising the consent to sex argue that the Children’s Act provides that a child is someone below the age of 18. From this, it is derived that a 16-year-old is still a child and may not know the implications of having sex, and protecting his/herself. It is believed that when the child gets pregnant, there are little options available to her as she cannot legally marry at that age.

Since society often frowns on single parenthood, some of these girls often get abortions which have its own problems. Thus children, even at 16 years old, are too young to protect themselves from the implications and consequences of having sex and should not be allowed to consent to sex.

Next, proponents say because the age of consent is at 16, the sexual abuse of the child at that age is treated as a misdemeanour and not a serious offence, given men little incentive to refrain from it. A popular example of this was the dispute between a proprietor of a school and a student, brought before the Gender court in 2009. The proprietor impregnated the 16-year-old student and later married her. The girl agreed to the sex being consensual.

He was sent to the court on charges of compulsion of the marriage of a teenager. The case received a lot of publicity in the country with women’s right activists wanting to use it as a test case. People were appalled that marrying someone before the age of 18 is considered a less serious offence than defilement; it is a misdemeanour which carries a punishment of between 1 and 3 years in jail.

However, since she was already given in marriage to the proprietor, she didn’t cooperate with the prosecution and the case had to be finally dropped. She is quoted as saying “this is my husband and I will not allow you to jail my husband and the father of my child because you are not going to take care of me”.

This sums up a lot of the experiences in prosecuting child marriage in Ghana involving people who are within the age of consent. When the age of consent is raised, sex below 18 years will be treated as defilement which attracts a minimum of 7 years and a maximum of 25 years. They believe this will be a great disincentive for sex within the gap, especially sex between adults and children, considerably reducing the incidence of child marriage.

In addition, some are of the view that raising the age of consent is in the best interest of the child as required by law.They believe that there is no point to saying that a person can have sex at 16 and not be ready for the consequences. And also that at 18, a person is financially, mentally, and emotionally better off than a 16-year-old in terms of marriage.

So once the age of consent is shifted, the burden then will not be on children to decide whether to have legal sex. Consequently, they believe that the fact that teenagers at that age tend to have sex does not mean that it should be condoned.

The aim should be to establish ideals and strive to make them work. If every child at that age is having sex, our society will be worse off than it is. The law should encourage them to do the right thing, with the few who fall outside the law being given the necessary skills to help them reform. These arguments notwithstanding, there are some who strongly believe that there is nothing wrong with the laws as they stand now.

They assert that the age of consent at 16 is in line with international practices and is in the best interest of the child. When children reach puberty all sorts of changes happen to their bodies that make them want to engage with the opposite sex.

This is natural and no matter the constraints imposed, those curious enough will find ways to satisfy their curiosity. Policy makers were aware of this sexual activity among teenagers and set the age of consent to protect them. The law is not telling them to have sex; it was made to protect those who are more vulnerable. At 16, it is expected that a child should be mature enough to make that decision just as the constitution makes provision for the child to do light work from 15, without it being considered child labour.

They argued further that a lot of the resistance to leaving the law as it is is based on morality, tradition, and culture which are impractical for the current times. The country should not shy away from acknowledging the hormonal changes that exist in teenagers since it is almost impossible to stop them from pursuing the sexual curiosity it induces.

Further, they view calls to make the age of consent to be at par with the legal age of marriage as romantic and moral ideals which have little practical value. Pushing the age of consent to 18 means that a lot of sexual activities, which will happen anyway, will be considered statutory rape, leading to excessive prosecution.

The state will not be in a position to adequately deal with this and may result in the imprisonment of well-meaning Ghanaians and prospective socio-economic contributors of the country. The reverse, which is to bring the age of marriage down to be one par with the age of consent, is an impossible venture. Ghana prides itself in being the first to have signed and ratified the convention on the rights of the child and has made so much progress in that regard, lowering the age will seem as though we were going backwards.

They assert that the way forward is to find ways to ensure that children who are sexually active do not get pregnant and be compelled to get married. As this situation is not unique to Ghana, they argue that we can learn a lot from the ways other countries have handled their situation. One way could be to encourage comprehensive sexual education in our schools so that teenagers are made aware of the changes happening in their bodies and the consequences of the actions they take. Here the state’s role will be to make comprehensive sexual education part of the curriculum of basic and high schools.

Also, the state could take steps to ensure that contraceptives are available to teenagers. Without the resources for them to have control over their sexual urges, the education received will not yield many results.

They conclude that the law as it is now is good. What the country needs is to put in more education and make available contraceptives so that teenagers can have greater control over their sexuality. This way, child marriage that comes about as a result of the gap between the age of consent and the legal age of marriage would be a thing of the past.

Within the time it took you to read this article, 252 girls under the age of 18 have been married worldwide. Knowledge of this worrying trend has engendered the general consensus that child marriage is a major canker to the world’s socio-economic development.

It increases illiteracy, poverty, negatively impacts the health of the brides and reduces the human resource of countries. As such, we need to embrace all efforts and join the cause to end child marriage in the country. Ghana is poised to eliminate child marriage by the year 2030 through the most effective means possible. As we explore the legal ramifications of the age of consent arguments, a national debate might help us reach a conclusive end.

By:

The Child Marriage Unit

Ministry of Gender, Children and Social Protection

As part of activities commemorating the 2016 Day of the African Child