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Marriages with/among

statutory minors

Cultural test​

1. Can the category 'culture' (or religion) be used?
​Yes. In some social groups, marriage with/among legal minors is considered an important custom, a distinguishing factor conferring a strong sense of identity to the community. It is seen as a protection from cultural ‘otherization' for the younger generation, a way to teach children what 'good behaviour' is and to give them a role in the community.
2. Description of the cultural (or religious) practice and group.
Marriage with/among minors is a union, which may be formal or informal, contracted between either an adult and a minor or two minors, and is often identifiable as an agreement between two families who decide to create a binding bond between themselves and their children.
Marriages with/among statutory minors occur in different places on five continents, mainly in Niger, Chad, Mali and Bangladesh, but also in Europe among the Roma. In most cases, only one member of the couple is underage, usually the female, and this is often due to their shorter reproductive life span compared to men.
Often, marriage with girls is presented as a strong tradition, a valuable cultural practice, as it is a determining factor in the construction of personal and social identity, and in the attainment of a recognised status. Moreover, it is frequently considered a means of protection for girls who, in some contexts, are subject to abuse or abduction, and who, through marriage, obtain protection. It is, therefore, a very different practice from the 'sale of daughters', and not to be confused with it.
The practice of youth marriage and its regulation vary from context to context. In Transylvania, for instance, marriage between young people has no legal validity as it is forbidden by Romanian law. Rather, it is a 'prenuptial agreement' between two families, and takes place in the form of a 'promise', usually when the children are between the ages of 2 and 8, with the expectation that the marriage will take place when the girls reach the age of 12-13 and the boys 13-15.
In contexts where marriage with/among statutory minors is widespread, girls who do not marry before the age of 18 usually do so shortly afterwards, and may have largely similar experiences of married life to those who married younger. In these contexts, in fact, the pre-legal marriages rarely differ qualitatively from their subsequent legal marriages in terms of associated customs, practices or social expectations. In other words, the 'child marriage' often turns out to be an anticipation of a practice that is carried out in any case before the age of 20.
​3. Embedding the individual practice in the broader cultural (or religious) system.
Marriage with/among persons under the age of 14 is often a practice considered important not only to establish agreements between families (the wealth and social status of the families involved is a determining factor for marriage among young people), but also to preserve group identity and to prevent assimilation into the dominant culture. Marriage, in fact, usually takes place between children belonging to the same community, so that the possibility of passing on the group's cultural traditions is ensured.
Once an agreement has been reached and until marriage, tradition dictates that the girl stays with her future husband's family so that the young couple can get used to each other and prepare for life together. As the representatives of the Roma communities claim, the two children grow up as 'brother and sister' and are both loved as children by the boy's family. 
4. Is the practice essential (to the survival of the group), compulsory or optional?
Marriage with/among minors is often associated with certain social conditions, which seem to influence the perpetuation of the practice over generations, making it essential for the survival of certain social groups. Among these conditions, it is important to point out:
 
  • a low life expectancy, so the practice is influenced by the group's need for reproductivity;
  • a strategy in which marriage between young people represents the best available option for both daughters and parents in the face of an economically disadvantaged environment with few job opportunities, or even a shortage of basic necessities;
  • in contexts of family disagreements, marriage can act as a conciliatory means for families to reach a conflict resolution.
 
These conditions make us understand how, often, marriage between young people is not an adverse situation but, rather, a necessity. It is, in short, a strategy of access to various vital resources, which is supported by symbolic and discursive representations structured and shared by society.
​5.     Is the practice shared by the group, or is it contested?
It depends. In contexts in which communities have not come into contact with the educational system of the dominant culture, the practice is generally accepted and shared. In European Roma groups, influenced by the educational system of the dominant culture, marriage with or between intra-fourteen-year-olds has begun to be perceived negatively. In any case, rather than openly condemning marriage, there is a tendency to see it as a 'taboo', a subject that one should not talk about in order to avoid conflict with the culture to which one belongs. Various anthropological studies show, in fact, how many interlocutors who no longer live in the community of origin are reluctant to talk about topics such as sexual relations, sex education, gender, contraceptive measures and the impact of early pregnancy.
An increase in 'Western educational practices' aimed at this topic has therefore meant that the tradition of marriages with/among minors has declined in many contexts.
Child marriage is sometimes mistakenly associated with arranged marriages. Moreover, in the global health discourse, early marriage is sometimes described as a 'harmful cultural practice', without properly considering the specific motivations and circumstances that may lead to this choice.
Furthermore, it is essential to recognise that early marriage is not only about potential compulsion, but may involve choices that are considered appropriate in the specific cultural circumstances. At the same time, it is important to promote an open dialogue concerning the human rights, safety and well-being of those involved, so that they have access to information and educational opportunities to make informed and autonomous decisions about their future, including the possibility of deciding whether and when to marry.
​6.     How would the average person belonging to that culture (or religion) behave?
Social contexts can be very different. However, it is clear that the practice is closely linked to the attainment of a social 'status', as well as to family needs; therefore, it is presumable that there is often custom in carrying it out.
The will of the young people, especially with regard to the latter generations, is however generally respected, and families do not commit to continuing the marriage if they realise that the young people do not like each other or if they consider that the marriage cannot last.
 
​7.     Is the subject sincere?
 In order to ascertain the sincerity of the adherence to the cultural practice on the part of those involved (young bride and groom over 18, family members taking part in the wedding organisation, etc.), it may be useful to carry out some factual checks on the subject:
  • the acceptance of the bond of traditional marriage by the two 'spouses' involved;
  • the absence of coercion of minors by adults involved in the organisation: situations of subjugation and other forms of conditioning;
  • the existence of consensus on the shared life perspective;
  • the functionality of the social context of cohabitation created after the marriage;
  • the age of those involved in the traditional marriage.
 
8.     The search for the cultural equivalent: the translation of the minority practice into a corresponding (Italian) majority practice. ​
Even if it is not formalised in a marriage bond, the anticipation of the age at which Italian minors have sex and begin a romantic and intimate relationship may be considered a cultural equivalent. In fact, it is not uncommon for an Italian girl or boy under the age of 14 to engage in sexual relations with an older teenager. The criminal legislator has taken into account this change in the customs and sexual freedom of the under-14-year-old girl or boy by decriminalising the hypothesis of sexual intercourse between an under-14-year-old person and a person who is four years older (Article 609 quater of the criminal code). Therefore, the instance of a 13-year-old girl having sexual relations with a 17-year-old does not currently fall under the criminal law. This is a culturally conditioned rule that only takes into account the cultural practice of the Italian majority and does not consider, for example, that among the Roma the most frequent instance is that of a similarly aged girl who, having reached puberty (and consequently become an adult), marries a boy who is usually eighteen or twenty years old (the higher age of the man depends on the fact that he must already have the means to support the family). Thus, sexual intercourse that takes place within a stable and potentially desired relationship that is also aimed at starting a family, such as the one that takes place in the Roma marriage, is sanctioned as sexual abuse, with the husband being sentenced to prison. It is precisely the change of customs in Italian society and the fact that sexual freedom is also recognised for under 14-year old minors that could ground a new assessment of cases concerning, in particular, Roma marriages where the age difference is only slightly greater than that contemplated by Article 609 quater of the Italian criminal code.
9.      Does the practice cause harm? ​
The practice does no harm if it is the result of a conscious choice to live together, assisted by a certain planning, and aimed at building a family unit.
The choice of marriage, even if carried out by two very young individuals, is in fact and for certain groups of the populations concerned, an important form of fulfillment for the individual, certainly even more so in cases where the prospects linked to education and vocational training have not been fully accessible.
Indeed, in some contexts it would be detrimental to question this choice by criminalising it, which would weaken the desire to participate in society by building a family unit and undermining the degree of socialisation previously achieved.
​10.  What impact does the minority practice have on the culture, constitutional values, and rights of the (Italian) majority?
In the perception of the majority Italian host group, the practice of marriage with/among statutory minor children is perceived negatively, as a choice imposed on individuals too young to self-determine.
For the majority culture, first of all, the practice conflicts with certain values related to the protection of minors such as dignity, freedom and self-determination. This perception is linked to a different view of the phases of a human being's existence: for the majority culture, the individual, as long as he or she is a minor, must be devoted to play, education and building his or her future, far from lifestyles that are instead reserved for 'adult' life such as work or marriage.
Secondly, for the majority culture, the practice would also be detrimental to the constitutional value of gender equality, presenting itself as a severe limitation for the personal and professional fulfillment prospects of the young women in particular.
From a legal point of view, it should be pointed out that, under the civil law, it is, for instance, possible to marry from the age of 16, on the basis of the emancipation institute (Art. 84 of the Civil Code; Art. 117 of the Civil Code). This obtains, following an assessment of the minor's psycho-physical maturity and in the presence of serious reasons, a decree of admission to marriage from the judicial authority at the request of the interested party.
In the penal sphere, a provision directly inherent to the institution of marriage, even between minors, is Article 558 bis, which, however, specifically concerns coercion and inducement to marry and which should therefore exclude those cases in which valid consent has been given.
Outside of such cases, Italian criminal law prohibits any kind of sexual act for children under 14 years of age, except for those acts occurring between adolescents, between whom there is no more than a four-year difference, for whom the limit drops to 13 years. Abusive situations between those involved, as well as cohabiting relationships between them, may raise the permissible age limit to 16 years.
This cultural practice therefore lends itself to being sanctioned more frequently through Article 609 quater (Sexual acts with minors), which provides within it a ground of non-punishability for sexual acts occurring between minors - who have reached the age of thirteen, if the age difference is no more than four years - and an attenuating circumstance of lesser seriousness. The rule thus establishes a graduated form of protection for the child according to age and circumstances. The rule is specifically geared towards protecting the psycho-physical development of the child in the area of sexual maturity.
​11.   Does the practice perpetuate patriarchy?
The practice could perpetuate forms of patriarchy if seen in the abstract and outside the cultural context of origin because it seems to impose on young women a choice of life as a housewife and devoted to the family, thus precluding other forms of personal and professional fulfillment. However, since it is a choice to which the minor is guided in her cultural horizon, the contraction of the marriage bond does not necessarily signify the subjugation or limitation of the individual's prospects. The choice of married life may itself have been evaluated as a form of personal fulfillment by the individuals concerned.
Furthermore, functional family situations could be delineated where there are no forms of patriarchal subjugation.
Even if in the majority culture the binomials "woman-home/husband-work" are often associated with a patriarchal structure, it is well known that in reality this functional distinction does not always realise dynamics of women's subjugation, leading, on the contrary, to the determination of "matriarchal" systems, also experienced in the majority culture and in which the woman's role has always been central (e.g. marriage in Sardinia where within a patriarchal structure, a matriarchal matrix remains in which the woman retains the government of the household economy by administering her husband's money).
12.  What good reasons does the minority present for continuing the practice? The criterion of an equally valid life choice.
The good reasons the minority presents for continuing the practice are the following:
In the first place, marriage represents a moment of realisation of the individual's existence and as such assumes the characteristics to fall within those modes of expression of the individual as understood and protected by Article 2 of the Constitution. The choice of marriage at a young age concerns a conception of the phases of the individual's existence that is slightly different from the majority culture, but equally valid. The choice is rooted in a 'culture of fecundity', where the family assumes a central role. The Italian culture itself has been the bearer of this in the past, and to this day there are still substantial groups of individuals who hold this view of the phases of existence, in which marriage and childcare assume a fundamental role (think, for example, of those belonging to particular Catholic religious groups). By contrast, the diametrically opposite tendency, now widespread in the majority culture, is marked by strongly 'individualistic', economic and professional perspectives of fulfillment, in which the building of a family unit is a late event, when not completely ignored.
Secondly, these are 'alternative' life choices strongly dependent on economic and social factors that act both ways and go beyond cultural differences. In fact, marriages at a young age can also be considered an equally valid life choice due to a lack of those alternative, more individualistic perspectives common to the majority view. At the same time, the same economic and social factors are capable of conditioning majority individuals in the opposite direction, leading them to generate a culture of infertility. Since institutions are not allowed to completely annul the effects of these social and economic factors on the lives of individuals, both choices present themselves as valid alternatives and implement forms of 'pluralistic' adaptation to the characteristics of today's society.
Finally, one must consider the sexual freedom of minors under the age of 14 and their right to have consensual sexual relations even before the age of 14, which in some cases is recognized by Italian law itself with hypotheses of non-punishability or reduced seriousness of the act. 

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