At 12, birthday cake, not wedding cake

Legislators plan to cut loophole from common law

Katie Kerwin Mccrimmon, Rocky Mountain News

Published June 17, 2006 at midnight

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Colorado lawmakers said Friday they plan to outlaw marriage for girls as young as 12 and boys as young as 14, one day after learning such relationships are allowed under Colorado's common-law marriage statutes.

Sen. Betty Boyd, D-Lakewood, said she was astounded by a Colorado Court of Appeals ruling Thursday that found children could legally proclaim themselves to be married.

The ruling centered on a Weld County case in which a girl started living with Willis Lee Rouse in 2002 when she was 14 and he was 34. He was later accused of sexually assaulting the girl, but Rouse claimed that they were married under common-law statutes. The couple have a young son, and Rouse is now serving four years for a stalking charge. A lower court found that the girl was too young to enter into a common-law marriage. But the appeals court found that Colorado law did not put age restrictions on common-law marriages.

Under Colorado law, children under age 15 cannot consent to a sexual relationship with a person who is older than they are by four years or more. Sexual contact in those cases is considered sexual assault on a child. But there is one key exception: Sexual contact is not considered assault when the couple are married.

Several lawmakers were appalled by the apparent holes in Colorado law.

Boyd submitted a bill title Friday to Colorado Legislative Legal Services and plans to introduce the legislation next year.

She believes Colorado law allowing common-law marriage should mirror requirements for ceremonial marriage. Teens under age 16 are not allowed to get a marriage certificate without the consent of their parents, a legal guardian or a judge.

"Given the success rates of marriages today, it is incredible that young children under 18 can consent to common-law marriage. Children need to be protected from this kind of exploitation. A child at the age of 12 does not have the maturity or experience to know the importance of marriage," Boyd said. "The age must be changed so that we take steps to strengthen the contract of common-law marriage and prevent the exploitation of children."

Rep. Anne McGihon, D-Denver, said it's time to overhaul Colorado's common-law statutes so that sexual predators cannot exploit girls as young as 12. She said she would work with Boyd to sponsor legislation.

"It's incredibly important to tie this loop up so that it's not a potential defense for someone to use," said McGihon, an attorney who has dealt with disputes that erupted when one party claimed to have been married under common law. She thinks it's time to evaluate all statutes related to common-law marriages.

Family-law attorney Mike DiManna thinks it's time for Colorado to abolish the practice. Colorado is one of only 10 states that still allow common-law unions.

"It's ridiculous that you can consent to be married (at age 12)," DiManna said. "No question, it's a problem. If we just do away with the common-law marriage, then it won't be an issue."

Rep. Joel Judd, D-Denver, said common-law marriages are part of Colorado's frontier past.

"At one time, there were a lot of parts of this state where it was hard to come by someone who could perform an official marriage. Even today, it seems to have some value for some folks who want to have the world recognize them as husband and wife but don't care to go through the formalities that we impose on those who want to have a piece of paper," Judd said. "I still think there's a place for that, not for those that are 12 years old, but for adults."

Backers of a referendum that would extend benefits to gay couples called on Gov. Bill Owens and lawmakers Friday to deal with the marriage issue this summer in a special session.

"Our society has, thankfully, evolved well beyond the idea that it's acceptable for 12-year-olds to legally marry," said Sean Duffy, director of Coloradans for Fairness and Equality Action. "Our laws must be updated to reflect this change. Let's pass a new law in special session to reverse this court decision and consign this nutty notion to the legal dustbin."

Duffy claimed that preventing 12-year-olds from getting married does more to preserve marriage than ballot measures that seek to prevent gay unions.

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