In relation to the practice of marriages with or between minors, one of the first problems that emerges is that in the common view, juridical and otherwise, this cultural practice is often unconditionally juxtaposed to that of forced marriages, on the basis of an absolute presumption according to which a minor's consent to marriage is never validly given, but always the result of coercion. While it is true that child marriages and forced marriages may coincide, especially in situations of abuse, they are still two phenomena that must be kept distinct from an ontological and legal point of view.[1] A presumption of this kind is undeniably 'culturally oriented': it derives from a very precise structuring of the phases of the individual's existence and values typical of the majority culture, as emerges from anthropological findings. Moreover, the presumption does not always find full confirmation in the Italian legal system itself and in other legal systems recognised by it.
In the international sphere, for instance, on the one hand, there is a desire not to recognise marriage bonds arising among the very young, by means of norms aimed at protecting against gender discrimination or protecting the rights of children[2] but on the other hand, when we refer to marriage as an institution of important social value that seals the right of individuals to create a family, it appears to consist of two main elements: the full and free consent of the betrothed, and the requirement of a 'suitable age' or 'minimum age', unspecified and adaptable to different contexts.[3]
There is also no homogeneity in relation to European legal systems: while some states, such as Sweden and Germany, have recently taken definite positions strongly against child marriages, those contracted before the age of 18, whether by coercion or not; while for others there is already a capacity to marry at the age of 16, as in the case of Scotland and Portugal.
The Italian legal system is open to marriages between minors by providing for the possibility of contracting the bond once the age of at least 16 years has been reached (through the institution of emancipation), but in reality the capacity to marry is even wider. The action of the annulment of the bond contracted in the absence of the age requirement (Article 117, second paragraph of the Civil Code), at the behest of persons outside the married couple (i.e., parents or a public prosecutor), is limited, for instance, to the minor's reaching the age of majority, if there has been procreation or conception and 'in any case' where the minor's will to maintain the bond has been ascertained. To complete this openness, the regulations concerning marriages contracted between foreign citizens (Article 116 of the Civil Code), do not contemplate, among the necessary requirements, that of age, which must conform to that indicated for the validity of the bond in the country of origin.[4] (See Bonfanti 2020; Campiglio 2020; Pesce 2021.)
A more marked limitation is certainly represented by penal discipline which, although not directly dealing with marriages with or between minors, indicates 14 years of age as the age of consent to sexual acts, with some exceptions. In fact, Article 609 quater of the criminal code (Sexual acts with minors), which punishes sexual acts with minors, provides for articulated regulations. It emerges from the provision that sexual acts with minors who have not reached the age of 14 years are prohibited, recognising a certain freedom of self-determination in sexual matters for minors and even depenalising sexual acts performed with persons who have reached the age of at least 13 years (Article 609 quater, paragraph 5), provided that there is no difference in age between the persons involved of more than four years. This cause of non-punishability has been present since the introduction of the rule on sexual acts in the Italian legal system (Law no. 66/1996), and has recently been amended (Law no. 69/2019) in a sense that broadens its applicative scope, extending the maximum age difference to benefit from the mitigating circumstance from three years to four. The same law, however, also provides for hypotheses in which sexual acts with minors are criminally relevant even if they have reached the age of 14, and this happens not only in the presence of certain abusive situations, but also when there is a relationship of cohabitation between the minor and the other person (specifically, these hypotheses are set out in Article 609 quater of the Criminal Code, paragraph 1, no. 2, paragraph 2, among them: sexual acts with ascendants, parents, guardians, other adult persons holding caring, educational and/or working relationships).
In this sense, the legal system values the consent given to sexual acts by minors who have reached the age of 14 years (and in some cases 13 years) and legitimises, by means of the cause of non-punishability already referred, sexual relations between peers or in any case between adolescents. In this way, the Italian criminal code takes into account a cultural transformation: due to the liberalisation of customs and the shortening of childhood, even in the majority culture, sexual intercourse between minor children is more frequent. The legislature recognises a certain freedom of sexual self-determination for minors. The doctrine has pointed out, however, the following paradox: 'the Italian penal code entirely reflects the majority culture. The law protects, in fact, the cultural practice that sees frequent cases of Italian thirteen- and seventeen-year-old lovers having sexual relations, but not the Roma couple that marries, since, generally, marriage with the Roma rite takes place when the man is in his twenties. The hypothesis of the more stable Roma relationship project remains outside the cultural horizon protected by the penal code. It could be said that the impact of an early marriage is much greater than that of an early sexual relationship, so the difference in regulation is justified, yet it is difficult not to find the two different sanctioning outcomes jarring and, in some way, vitiated by a monocultural approach" (Ruggiu 2022, 85). Article 609 quater, paragraph 1, no. 2, subparagraph 2) of the Criminal Code, which criminalises sexual intercourse within a cohabiting relationship even if the minor has reached the age of 14, has been applied to Roma married by the traditional rite, also revealing the monocultural paradigm that inspires the penal framework of sexual relations with minors.

​​A more specific regulation inherent to the institution of marriage is Article 558 bis of the Criminal Code (Constriction and induction to marriage), recently introduced by Law No. 69/2019, which, however, punishes marriages to which adults or minors are induced or forced. In modern Western society, it is no longer so common to contract a marriage at a young age, which is why a large part of the discipline inherent to the institution of emancipation and to the concrete assessment of the marital capacity of a minor of at least 16 years of age is only lightly applied, whereas the penal discipline is much more used in relation to the management of occasional relationships between or with minors. In the past, on the other hand, especially after the reform of family law, it was quite common for Italian judges to decide on such evaluations and to grant clearance for the marriage of very young persons (Monteverde, 1979). These instances have disappeared, not because they are worthless, but as a result of societal evolutions that see the institution of marriage as less relevant in the evolutionary path of individuals. It follows that the Italian discipline on the subject of marriages and sexual acts with or between minors is itself deeply culturally connoted and in continuous evolution. It would seem, therefore, that the problems connected with the marital capacity or sexual self-determination of minors are not so far removed from the legal culture, or even the majority one.
The Italian Supreme Court had an opportunity to pronounce itself on the subject, in a case concerning the bond between a minor, aged 15, and a boy who had just come of age:[5] the two had in fact contracted a marriage according to the Roma rite and had a child together. The boy was condemned for violation of Article 609 quater of the criminal code on the basis of the fact that, although the minor had reached the age fixed by law for a certain capacity of sexual self-determination (13-14 years of age), there was a de facto cohabitation between the two, which was relevant, under the second paragraph of the rule, as an element that made the act punishable. In the present case, the judges took into account the circumstances of the concrete fact: the generally extenuating circumstances were made operative and the penalty applied was very light compared to the edictal framework provided. However, the cultural datum was not examined in depth; it was limited to highlighting the non-validity of Roma marriage in the Italian legal system[6] and therefore the impossibility of it constituting a form of cultural exemption. All the more reason, however, precisely in the most complex cases, for why the use of anthropological data in the evaluation of the concrete case with respect to the interests of the child, could contribute to the realisation of a better balance in which none of the child's rights are penalised. To complete and enrich the instruments of modulation of criminal liability already present in the legal system, one thinks, for instance, of the use of the mitigating circumstance of lesser seriousness provided for by the law[7] or by influencing the assessment of the offensiveness of the fact in relation to the meaning of cohabitation, at least when it is undertaken as an autonomous life choice and often rooted in the values and cultural context in which one grew up. The balance between the protection of the minor's psychophysical development both in the sexual sphere and his right to live according to his culture of origin, or to see his right to private and family life and self-determination respected, should always have the minor's interest as its objective. However, on the subject of culturally oriented facts, this balance cannot always be unconditionally satisfied by those forms of protection recognised as typical by the majority culture, as they are forged in a specific legal tradition, the 'western' one, and thus they are themselves profoundly 'culturally oriented'. Whether it is a question of freedoms linked to the contraction of a marriage bond or inherent to self-determination on a sexual level, the reference is always to a nucleus of potential freedoms of the minor that fully involve his existential sphere, referable to what Article 8 of the ECHR defines as the right to private and family life and for the protection of which the law accentuates the role of the evaluation of the concrete case, and in which the reference to the cultural context of origin must be heard.
In the legal (Bonfanti 2020; Pesce 2021) and anthropological (Tosi Cambini, 2015) spheres, the question arises as to whether, on the subject of the fundamental rights of the child, the criminalisation or non-recognition of these ties, often identified as 'de facto' ties because they arose on the basis of traditional or religious rites, is always and in any case the most optimal solution for the child, especially in those contexts in which cultural rights and the right to private and family life are also relevant in the balancing act. In these cases, anthropological investigations make it possible to refine the assessment of the concrete case, as required by legislation on this subject,[8] to "relativise" the presumption that all child marriages are always and in any case forced, and instead to find some way to bring out possible profiles of deservingness and protection of such relationships.

NOTEs

[1] According to the UN High Commissioner for Human Rights, a child or early marriage is one in which at least one of the parties is under the age of 18, whereas a forced marriage is one in which at least one of the parties has not expressed full and free consent to the marriage. For a more detailed discussion, see Campiglio (2020).

[2] CEDAW, Convention on the Elimination of All Forms of Discrimination against Women: Art. 16. Par. 2. 2. Engagements and marriages of children shall be without legal effect and all necessary measures, including legislative provisions, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official register compulsory.
Istanbul Convention: Art. 32_ Civil consequences of forced marriages_ The Parties shall take the necessary legislative or other measures to ensure that marriages contracted by force may be invalidated, annulled or dissolved without representing an excessive financial or administrative burden for the victim;
Article 37_ Forced marriage _ 1. Parties shall take such legislative or other measures as may be necessary to penalize the intentional act of coercing an adult or a child into marriage. 2. Parties shall take such legislative or other measures as may be necessary to penalize the intentional enticing by deception of an adult or child into the territory of a Party or of a State other than that in which he or she resides, for the purpose of compelling him or her to enter into marriage.

[3] ECHR _ Art 12. Right to marry_ From the minimum age for marriage, a man and a woman have the right to marry and to found a family according to the national laws governing the exercise of this right.
International Covenant on Civil and Political Rights_ According to Art. 23(3), marriage may not be celebrated without the free and full consent of the couple.
Universal Declaration of Human Rights, United Nations, 1948: Art. 16(2) also refers to the free and full consent of the future spouses.

[4] In this regard, Campiglio (2020) reports some excerpts from the report on the Civil Code, from which emerges the Italian legislature's specific wish not to include an age requirement for marriages between foreigners, considering that it was not the case to derogate from the principles of private international law according to which 'the status and capacity of persons are regulated by national law, and it is not the case to derogate from this rule for the age requirement, since in the various legislations, it is established in relation, above all, to the physical development of citizens'. The same author (p. 11) also points out an interesting fact, from the point of view of multicultural analysis, namely that before the 1975 reform of Italian family law, it was the same Article 84 of the Civil Code that laid down a much lower age for marital capacity, specifically 16 years for men and 14 for women.

[5] Cass. Pen. sez. III - 31/05/2017, no. 53135

[6] In the ruling under examination, the Court of Cassation bases the non-recognition of Roma marriages in the Italian legal system on the order Cass. Civ., Sec. 6 - of 27/09/2013 no. 22305, in which a decree sanctioning the prohibition of the expulsion of a non-EU citizen because he was married by "Roma" rite to a pregnant woman was annulled. In fact, the conjugal relationship, as established by the prevailing interpretation, had in any case to be recognised in the legal system of the foreigner's State of origin, something that did not exist in the case of a traditional Roma marriage. The assessment of traditional Roma marriage may, however, be subject to change today, both with regard to the recognition of cultural rights as inviolable rights of the individual, and no longer as mere custom, and because of the new significance attributed in so many areas of the legal system to de facto family ties.

[7] As, moreover, highlighted by the Supreme Court itself in a similar case, especially in cases where stability of the bond emerges and there are children in common, Cass. Pen. sez. III - 16/05/2017, no. 46461

[8] In Art. 4. Par. 5 of the EU Directive 86/2003 on family reunification, with the specific aim of avoiding reunifications linked to forced marriages, is inscribed the possibility for Member States to impose a minimum age limit, maximum at twenty-one years, for the reunification between the sponsor and the spouse to take place. However, in the Communication from the Commission to the European Parliament and the Council concerning guidelines for the application of Directive 2003/86/EC on the right to reunification of 2014, it is specified that "the minimum age level may serve as a reference, but it cannot be used as a general threshold below which all applications are systematically rejected, regardless of the concrete examination of the applicant's situation. The minimum age condition is only one of the elements that Member States must take into account when examining an application. If it results from the individual assessment that the justification to apply Article 4(5), i.e. to ensure better integration and to avoid forced marriages, is not applicable, Member States must provide for an exception and consequently allow family reunification in cases where the minimum age condition is not fulfilled, for instance when it is clear from the individual assessment that there is no abuse, as in the case of a common child”.