What is a judge to do (when an 18 year old man brings home a 13 year old girl and says she is his wife)?

Peru is the multicultural country par excellence:  with populations of Indian, African, Oriental and European origin in every possible mixture.  Cosmopolitan Lima, the Amazon Jungles, and the Indian villages of the Andes sometimes seem worlds apart, and national norms and local mores frequently conflict.   When they do, what is a judge to do?  Peru today is struggling with the dilemma, engaged in a national debate over what is called here “customary law.”

Consider for example statutory rape.   Like the United States, Peruvian law quite reasonably defines sex with an underage minor, even with her consent, as a crime.
In Peru, the legal age is 16 and until recently the law gave prosecutors when cases were brought to their attention little choice but to bring charges.  (This has changed somewhat.  In certain circumstances the age of consent has been lowered to 14 and prosecutors have more discretion.)   Historically, however, the law did give judges one out: something called an “Error of Culturally Conditioned Understanding,”  Article 15 of the criminal code. What that turgid phrase meant was that if someone who had committed a crime had been  cought up in a cultural context different from national culture and was therefore unable to understand or appreciate national legal norms, he or she could not be held responsible for his or her actions.   Peasants I know hate it.   They see it as a polite way of calling them  savages (which was the term used in a previous law) .  Still, they recognize that it protects them.

In much of rural Peru, as everywhere, in small, isolated, poor rural communities where  youngsters have few opportunities, traditionally women marry at an early age.  In the past marriages at age 14 or 15 were very common, marriages at 12 or 13 hardly unheard of, and I even know of a couple at age 11.   The practice had a certain rationality.   Women (and men) had few opportunities for an education or to be anything else than a poor
farmer.   Children were a necessity (to work the family fields and take care of elderly parents) but also a burden (one more mouth to feed).   Once a woman reached puberty forming a new productive unit was in everyone’s economic interest, not to mention satisfying adolescent desires for independence.   But under Peruvian law such marriages were a crime, unless of course, to those so marrying one could apply Article 15.  It’s not quite so simple.

For example, last year a judge passed me the following case.   The accused was an 18-year-old man from a small, impoverished, largely isolated village (for example, it had no road).  But he had migrated to the departmental capital of Cajamarca, where somehow he  obtained  a secondary education, found a job and enrolled in the local university to study sociology.   When he went home for vacation, he married (though not in a church or civil wedding but common law) a woman of 14.   It was hardly a case of child-lovers running  off.   Both families approved and the wedding was celebrated in a village feast, after which the couple returned to Cajamarca city.  She became pregnant, and when she entered labor, solicitous of her safety and comfort, he brought her to deliver the baby in the local hospital.   That’s where the problem began.  She was under-age, and the hospital as required by law reported the case to  the local prosecutor, who as required by law brought charges of statutory rape against the husband.    The judge who showed me the case knew what he wanted to do – he wanted to let the husband off – but it was hard to argue he was ignorant of  national norms.   After all he was a university student.  The judge   needed a legal reason for dismissing the charges.

Increasingly Peru is moving in the direction of recognizing it’s multi-cultural character and that has long discriminated against and marginalized its non-European  citizens.   It is wrestling with both its past and its future.  People are more and more arguing that the nation has an obligation to respect and protect cultural difference.   The term “indigenous rights” has entered the lexicon of human rights, and that means recognizing customary law.

But what is customary law?   And what to do when local customs affront our deeply held (urban) sensibilities?      Are human rights universal standards?  Or does respect for difference, reacting to centuries of exploitation, demand we view them as relative to culture?

Rural Peru has been changing rapidly over the last twenty years.  Villages that not long ago I reached by foot now have roads and electricity, even cable TV.   Hamlets that had no school, now have high schools.    Men, and women, have opportunities for education and for new economic roles that a generation ago no one dreamed of.    Early marriage may once have made economic sense.   It’s not so clear it still does.   Now it’s a barrier to a woman’s education, economic advance, and development.   Many women recognize that, and so do many men.   Early marriage is far less common today, and  when I ask women why, they tell me explicitly, “We won’t marry until we finish school.”   Parents say the same thing,“We want our daughters to have an education before they marry.  What if their husband leaves them?”   Today most women  getting married later and having fewer children than a generation ago.

Feminism is reaching the countryside too.  Last week I met with the board of the Peasant  Women’s Federation of the province of Bambamarca, a grouping of female eaders of villages from across the province.   I asked them what were the most important battles they were fighting. They answered, “Our daughters are marrying too young.”

The point is simple.  Custom – and customary law – is not a set of fixed rules.   It is a debate, in a world that is constantly changing.   It’s a debate that at the same time is both moral and practical.

So what is a judge to do?