The Catholic Lawyer

Volume 5 Number 4 Volume 5, Autumn 1959, Number 4 Article 7

Mental Disease and the Ecclesiastical Courts

Rt. Rev. Msgr. John J. Hayes

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RT. REV. MSGR. JOHN J. HAYES*

T HE CONTENTS OF THIS PAPER seem to me somewhat elementary for this audience, but I have been counseled by those much wiser than I to the effect that a simple declaration of the proper procedure in insanity cases and the attitude of the Rota as manifested over the years, is most acceptable and valuable. Consequently, I am merely reaffirming what is in the Code, in the Provida Mater, and in Rota decisions which must be familiar to all of you, but which may yet be useful, because it condenses into the space of half an hour, a great deal of legislation and a number of judicial decisions about mental disease. The task before the judge in a marriage case involving a plea for declaration of nullity on the grounds of insanity of one of the parties is a very difficult one. He is not asked to pronounce upon the sanity of one who stands or sits or lies before him here and now; by the time the case reaches him, it is abundantly evident that the person in ques- tion is not sui compos; if he were, the case would hardly be before the court. Besides, cases in which one of the parties was openly and obvi- ously insane at the time of the actual marriage are extremely rare, for few people will marry a recognized lunatic, and even fewer priests or civil or other authorities could be persuaded to officiate at such a

tThis article was originally published in 16 THE JURIST 267 (1956). It has been slightly modified here with the author's permission. In connection with this article, see the symposium on Mental Disease and Criminal Responsibility in 4 CATHOLIC LAWYER (Autumn 1958) and 5 CATHOLIC LAWYER (Winter 1959). *Officialis, Diocese of Bridgeport. MENTAL DISEASE marriage. No, the courts must normally considerations which, taken with the line deal with the determination of the ability of of decisions, forms a body of precedent a person to have given matrimonial con- which it would be difficult to assail. sent at the time of entering the contract of Incidentally, it is quite significant that we marriage, which is anywhere from months find the Rota and other ecclesiastical courts to years in the past, and in a case where dealing so largely with cases of mental dis- the signs were not so obvious at the time ease so soon after the development of as to make the partner or official witness modern psychiatry. It is a common charge refuse to go on. It is good that a corpus of against all courts, civil and ecclesiastical, law, precedent and presumption, has been that they run a generation or two behind built up for the judge's guidance, and it is the time, that they are so rigidly deter- a pleasure for me to trace the consistency, mined to abide by the principle stare the wisdom, the clarity, the essential sane- decisis that they are relatively blind to ness and even shrewdness of Church legis- newly discovered facts, and theories, and lators and especially courts in this impor- circumstances which might justly challenge tant matter. precedent. Thus, in our own country, and I have called this an important matter, in recent time, Mr. Roosevelt attempted to and indeed it is. Anything is important defend his desire to pack the Supreme which deals with the progressive deteriora- Court with judges of his own choosing (and tion of the human intellect and personality, his philosophy) by presidential jibes at the and our responsibility in the premises is "nine old men" and with the charge that grave indeed. Besides, the mere incidence the court was still living in "horse and of these cases is already on the increase; buggy days." Regardless of the merits of one of the first things that impressed me as this particular case, we know it is common I thumbed through the Rota cases in a pre- for people in litigation to criticize courts as liminary survey for this paper was the sheer cold-hearted, unfeeling, unsympathetic, too numerical increase of insanity cases propor- much absorbed in past principles and prece- tionately to others. Obviously, the enor- dents to see present realities and see them mous increase in mental disease in our time whole. already makes its mark upon our courts; It is good, therefore, that in this agoniz- the promise is that this tendency will con- ing matter of mental disease, the Rota (and tinue, unless some new drug or technique following the Rota, other courts) has been of treatment be discovered. modern in its knowledge of the field. For In the face of this vast and continuous this matter of mental disease is truly espe- increase in the number of those afflicted cially agonizing in our time. Dr. Braceland1 with mental disease, it is good to know that remarks that if any other disease were on the Rota (and other courts following it) the increase at the same rate as mental has been moving steadily and consistently disease, a state of national emergency would towards a jurisprudence in the field of men- be declared. There are more people in men- tal disease which gives substantial guidance tal hospitals than there are students in all to any local ecclesiastical judge in mar- riage cases. The de iure portion of one de- I BRACELAND, FAITH, REASON AND MODERN PSY- cision after another presents a series of CHIATRY 8 (1955). 5 CATHOLIC LAWYER, AUTUMN 1959 our colleges and universities. Mental dis- Woman's Home Companion on the sub- ease is a pressing problem. ject, "What Does Your Church Think of Another sidelight of interest here is that Psychiatry?" In the course of this article the attitude of ecclesiastical courts toward reference was made to the fact that people the psychiatric profession will undoubtedly wishing information about Catholicism and have historical value in defense of the psychiatry should write to the Guild of Church. In our day, there is a widespread Catholic Psychiatrists, Stamford, Connecti- misconception that thierie is a basic con- cut. I mention this because of the fact that flict between psychiatry and Catholicism. It in the following two months I received is difficult to understand why. The Church 1431 letters and post cards seeking infor- has made its position in the matter abun- mation about psychiatry and religion; and dantly clear. Pope Pius XII had spoken on 812 of these correspondents expressed the subject to various audiences, and each varying degrees of surprise that Catholics time had expressed his opposition to the could have anything to do with psychiatry! extreme atheistic and materialistic deter- Sooner or later this misconception will be minists in the psychiatric profession, while eradicated, but we may rest assured that insisting upon the fact that there is no con- there will be those who will continue to flict between sound psychiatry and true re- insist for years to come, that the Church in ligion. Similarly, the ecclesiastical courts the beginning opposed psychiatry. Mean- rely upon the testimony of psychiatrists, while, the Rota and our other courts are recognize their interpretations of symptoms building up proof to the contrary. This and, in general, treat psychiatrists with a will be a valuable polemical weapon for respect which reflects a conviction of the us through the years. entirely acceptable standing of the profes- The Rota uses the words "amentia" and sion. Beyond this, it is a common practice "dementia" in discussing mental illness. It among the clergy to refer emotionally and should be noted that these words as used mentally disturbed persons to individual by the Rota have no particular relationship psychiatrists. Psychiatric hospitals and psy- to the meaning of these terms on the lips chiatric wards are under Church direction. of a modern psychiatrist. The Rota by Priests practice the psychiatric profession. "dementia" seems to mean monomania, or It is an outstanding example of the per- fixed ideas, and if these fixed ideas be out- sistence of error, that against such a back- side the area of the marriage contract, valid ground the idea can exist that there is a consent would be possible. "Amentia" quite fundamental conflict between Catholicism clearly indicates to us a state of true insan-- and psychiatry. Why does the false idea ity causing an inability for responsible ac- live on? We do not know. Perhaps it is tion or true consent. We may well thank because the atheistic, pansexualist wing of God that the Rota has used these words so the profession is so voluble and vociferous. consistently; one can understand the nature Perhaps in answering their absurdities we of the illness in question in any particular have not always been careful to make clear case by reading the description of the ill- the fact that in fighting them we are not ness, its symptoms and developments, in indicting all psychiatry. the court records. Had the Rota adopted In May 1955 an article appeared in the the rich and confusing terminology of a MENTAL DISEASE

growing and eager psychiatric profession, deny such responsibility. Of course the we might have been driven to despair. To materialistic determinists are forced on a know what I mean, I advise any one of you priori grounds to deny all true responsi- to take up a book on modern psychiatry, bility for anybody about anything; but let us say Odenwald & Van Der Veldt, or there are those among psychiatrists of Cavanagh & McGoldrick, and see there, the sound background and good philosophy hundreds of divisions and subdivisions of who, nevertheless, deny true responsibility mental disease. We know what the Rota in persons afflicted with certain types of means and that, in this our day, is a gain mental illness. The insight required for indeed. Generally speaking, the Rota sup- marriage being greater than for mortal sin, ports the nullity of marriage in cases of an a fortiori argument against the validity proved amentia. In general terms again, it of marriage in such cases is admissible. Thc normally holds for the validity of the mar- Rota is on record very clearly on the sub- riage in cases of dementia. ject of how much discretion is required for Insanity cases are admissible in our matrimonial consent, and its attitude is courts only because the "consent of the sane and shrewd and sound. In a Rota parties" makes marriage and without it a case 4 the judge was asked to sit on a mat- marriage is impossible 2 In the Canon Law ter which involved a person who, it was we have no "statutory" impediments to the claimed, was incapable of appreciating the marriage of the mentally ill. If one is truly "ethical side" of marriage, although ra- insane, matrimonial consent is closed to tional in other respects. This man's rela- him 3 by the law of nature. Nor is there a tionship with women for many, many years question of error or fraud; whether the had been of an exclusively trifling nature. other party knows about the insanity at the It was argued that because over so long a time is irrelevant. period he had had one affair after another What degree of discretion must a man or with several women, he was psychologically woman have to give such consent as is incapable of comprehending the concept of required? This question has been long and a union with a woman which would be much debated, and a definitive apodictic sacred and exclusive and permanent. In fixed rule can hardly be set. Consequently, other words, he was unable to give true the nub of many a marriage case is pre- consent to marriage. cisely here. Has the mental disease at the In this case, the psychiatric expert re- time of the marriage reached such a point tained'by the Rota itself held that Tito, the that consent is now impossible? Certainly, husband, although intelligent (he was a greater discretion is necessary than that re- lawyer, but with a history of narcotic ad- quired to commit a mortal sin. And cer- diction), was incapable of valid matri- tainly, one of the great questions in the field monial consent. "Given his constitutional of legal medicine is that of the responsibil- immorality," said the expert, "he could not ity of the psychotic person for his acts, evaluate sufficiently the ethical side of the with opinion more and more inclined to marriage act, much less the importance of 2 Coram Julien omnibus videntibus, 5 July 1947; 39 S.R. Rota Dec. 397 (1947). 4 Causa nullitatis matrimonii coran Wynen, Feb. 3 Ibid. 24, 1941. 5 CATHOLIC LAWYER, AUTUMN 1959 the duties that derive from this act. He tion; especially an adult in those matters understood the act that he performed, but which pertain to ordinary, everyday experi- ence. But neither factually nor conceptu- not freely determine himself to it. he did ally, do these two cognitions express the Consequently, Signor Tito should be held same thing; they express rather diverse irresponsible both from the moral and the aspects of the same object. Experience juridical viewpoint." 5 shows that the merely conceptual judgment is formed earlier and with much more diffi- There was much more expert testimony culty. Furthermore, it is to be noted that to the same effect, but in the end, the court the use of reason which is required for refused to declare the marriage null. The every human act, regards both conceptual factual evidence of mental incapacity at the cognition and evaluative cognition, and both for the exercise time of the marriage itself and for the three demands a capacity of reason, and for the dominion of reason, years preceding it and the three years fol- that is, the capacity of a man to dispose of lowing it, was very weak. The significant himself and of his action according to that thing to my mind is the fact that the learned twofold cognition of the object.... and influential judge, Monsignor Arthur Now it is one thing for a man to lack the another Wynen, thought it necessary to examine at requisite evaluative cognition, and for him to pay no attention to it. A child and psychi- great length the psychological of five years who sets fire to his father's atric grounds alleged, and furthermore, that hayloft, although h'ehas conceptual cogni- he admitted as a matter of principle and as tion both of the hayloft and the fire, does not inconsistent with scholastic philosophy not have evaluative cognition of the crime, and theology, that it is not enough for free- that is the objectively very serious violation of right order which he perpetrates; and and imputability that there be a mere dom consequently, this violation cannot be im- conceptual cognition; there is required in puted to him. He does have, however, both addition, the ability to weigh and evaluate conceptual and evaluative cognition of.his the substantial elements of the proposed act inasmuch as it is a wrongful childish action. The following are excerpts from his deed, and accordingly, in this respect, his action is imputed to him and is deserving opinion: 6 of punishment. But an adult who posits the In not a few judgments there is really same external act, generally has not only a twofold cognitive function which can be conceptual cognition, but also evaluative and should be distinguished; the one merely cognition of the crime he commits, but he representative or conceptual, the other, pays no attention to it; because notwith- deliberative or evaluative; and this twofold standing it, he proceeds to the commission function is principally in evidence in judg- of the crime, and therefore, he should be ments which concern "practicable things" fully accountable for it. And this essential ("agibilia"), in other words in practical difference between child and adult as re- judgments. The merely conceptual cogni- gards the imputability of their own acts, tion expresses what the object of cognition obtains even more in civil law and espe- is, the evaluative cognition expresses what cially in the law of contracts than it does importance or worth it has, or what value in criminal law. A child of five years, who it has. Generally, a man perceives both spends a thousand lire on sports and child- aspects together-in the same act of cogni- ish amusements, although he may perhaps 6 ld. at 149-51. understand very well conceptually what a lire are, and what sports and 5 33 S.R. Rota Dec. 15; Nullitas Matrimonii thousand coram Wynen Feb. 25, 19 4 1, p. 144 at 148 (1950). amusements are, and what buying and sell- (1950). ing are, nevertheless, because he lacks the MENTAL DISEASE

necessary mental development and ma- "The use of reason, which is required in turity, is not yet able to evaluate and order not to be ignorant [of the substan- weigh, not even as to substantials, what it tials of marriage within the meaning of is to spend a thousand lire on sports and amusements. Therefore, even from the Canon 1082] is not sufficient for the ca- viewpoint of natural law alone, he must be pacity to give a valid consent," according said to contract invalidly. to this author. There is required in addition, Whenever a man, who because of his age "a maturity and normalcy of psychic links is presumed to be endowed with power of [collegamentil which permit the sponta- sufficiently evaluating something, is said nevertheless, to have acted without suffi- neous transformation of the knowledge of cient evaluative cognition, that can arise marriage into a rational appreciation, at either from the fact that he did not want, least confused and implicit, of all its essen- '8 or from the fact that he was unable, to tial aspects, particularly the ethical." evaluate or weigh the proposed action sufficiently. One who does not want to It seems to me very significant that a acquire this knowledge will generally not judge of the standing of Monsignor Wynen escape either the subjective imputability or would concede the possibility of deciding the objective obligatory force of his act, a case on the grounds of lack of evaluative since he affects ignorance, and it is hardly consent, and the essay of Father Fazzari is ever possible to discern whether sufficient evaluative cognition was lacking - at least further evidence that modern psychological of a confused and implicit kind. But one findings are making some impression. But who is unable to evaluate at least the sub- I think it will be some time before mar- stance of the proposed action, is obstructed riages will be successfully attacked on these in his natural power of appreciation, either grounds. After all, the ecclesiastical courts by an impediment which is merely tem- demand moral certainty that a given con- porary and transitory (drunkenness, de- lirium, violent fever, etc.) or by an habitual sent was invalid by reason of mental in- defect (whether congenital or acquired capacity. Constitutional immorality is one during the course of his life); this type of of the more obscure chapters in psychiatric habitual defect is present in not a few literature as is also the mental illness of the mental diseases and psychic anomalies, so-called psychopath personality. If the among which in recent times has been num- courts bered so-called constitutional immorality. hesitate to accept the concurring opinions of -many experts, as they did in This case has now been made the sub- the case just described, it is clear that there ject of a juridical monograph by an Ital- would be little hope of an annulment in a ian Jesuit, Father G. M. Fazzari, S.J. 7 I case where the experts disagreed. Psychi- have not been able to read this essay, but atric experts will be very likely to disagree frc-n various reviews of it, gather the fol- as to the moral and legal responsibility of 9 lowirt: after examining matrimonial con- psychopaths. sent from all sides, including its affective 8 Fazzari's book is reviewed by Rebecchi in 56 elements, the author concludes that "con- Divus Thomas 155 (1953); another review ap- stitutional immorality" can amount to a pears in 27 Estridios Ecclesiasticos, (1953). psychic incapacity to give valid consent. ')CLECKLEY, THE MASK OF SANITY (1950), where psychopaths are considered to be psychotics and 7 D'AURIA, Valutazione etica e consenso inatri- largely irresponsible for their erratic behaviour. ,noniale (ETHICAL EVALUATION AND MATRI- In CAVANAGH & MCGOLDRICK, FUNDAMENTAL MONIAL CONSENT) (Summer 1956). PSYCHIATRY (1953), it is said: "In the present 5 CATHOLIC LAWYER, AUTUMN 1959

2 But whether in ecclesiastical or civil or two periti and subsequently, a peritior.1 criminal proceedings of any kind, the thing The two periti testified clearly that because that prevents courts from accepting psy- of her addiction, the lady could not have chiatric findings seems to me to be the sufficient power of mind and will for valid inability of the experts to agree among matrimonial consent. The peritior leaned themselves. I have heard court officials in that direction without being quite so complain that psychiatry is not scientific definite, but even some of his opinions and because you can always get good, reputable conclusions were rejected by the court. experts on both sides, whose testimony is This, on the basis that the pastor, relatives diametrically opposed on the question of and friends believed her to enjoy sufficient responsibility. I think the judges in ecclesi- powers of mind to enter upon a valid con- astical courts are inclined to say to the psy- tract. They testified that she had freely and chiatrists: "First come to agreement among voluntarily given consent, that she truly yourselves as to the findings of your sci- loved her husband, and she desired the ence, and then we will listen to you." And marriage. In giving a finding non constare they have the further reservation as to psy- de nullitate, the Rota comments: chiatric testimony on responsibility: "If We say the peritior erred because he you are a psychiatrist who does not believe demands too much for valid contracting; in free will anyway, we cannot help being not merely the use of reason, but sound suspicious when you testify that someone is critical acumen, prudence, wisdom, good not responsible for something. Your denial judgment, etc. Also, he asks more of the of free will should logically, in our opinion, will than is necessary. Granted, for the sake of argument, that the lady, without an lead you to deny that anyone is ever re- injection of morphine, would not have 10 sponsible for anything." given consent, this does not make her con- Again, the Rota has rejected the opinions sent invalid. For it matters not how she is of the experts with its reasons founded in led to consent, whether altogether from the testimony of the inexperti, the relatives, within or also from some external incite- ment; it is required and suffices for valid the friends, the pastor of the party. Thus,"' contracting that the contracting party places there is a record of a woman who was ac- a positive act of the will and legitimately cused that because she used drugs exces- manifests it. Nor has it been demonstrated sively, she was constantly and habitually that the lady was incapable of placing such deprived of the use of reason for a long an act; the contrary is evident. For, over- coming the opposition of her family and time before her marriage, and therefore, in- her own subjective uncertainty, she actu- capable of consent to the marriage contract. ally decided to get married, prepared Three experts were called to testify as such, everything necessary to this purpose, she went to church and there gave her consent. state of our knowledge and public opinion, we have little choice but to state, when asked for an 12 The periti are experts who scientifically evalu- opinion, that the psychopathic personality is ate the significance of the behaviour of the per- legally responsible for his acts. Certainly he son whose sanity is in issue. They have observed knows the difference between right and wrong, the patient or they have seen the testimony of on an intellectual level at least, even if he does lay witnesses (inexperti). Cf., Can. 1792. The not accept it emotionally." peritior is called to evaluate the opinions of the 10See 33 S.R. Rota Dec. 15, at 166-67 (1941). periti, usually because there is disagreement. Cf., 1129 S.R. Rota Dec. 195 (1937). Can. 1801, § 3; Can. 1803. MENTAL DISEASE

How the specialist judges from her ante- demonstrable today since modern medical cedent uncertainty that her consent is opinion tends to view the lucid interval as invalid, we do not know. These, then, are a mere screening of latent insanity. Civil the reasons on account of which the judges reject the testimony of the specialist in codes usually deny recognition to contracts 14 favor of the nullity. entered during such intervals. Insanity is of an essentially degenerative nature. Hav- In these two cases, both of which I think ing proved amentia antecedent and subse- interesting, the first, because of the recog- quent to marriage, concomitant amentia is nition of some of the obscurer claims of rightly deduced, which is always true in modern psychology; the second, for its san- those diseases which are rooted in congeni- ity and good sense in the presence of the tal bases like "dementia praecox, sive somewhat precious reasoning of the ex- hebefrenica sive paranoica." 1' perts, the Rota has stood for validity. But the traditions of the Rota in terms of true Lucid intervals mean a termination or insanity are quite different. Let us look at even a temporary cessation of the signs of the provisions regarding: (1) presump- insanity, which does not mean that the tions, (2) lucid intervals, (3) experts. The patient is cured, but only that the under- 16 attitude of the Rota is so fixed that a mar- lying malady is obscured. These presump- riage case entered on the ground of insan- tions, of course, as all presumptions in ity stands or falls on the facts. The law is marriage cases, or in anything else for that established. The precedents are clear and matter, yield always to the facts. Indeed, numerous; the presumptions are established the presumption requires the support of in law. In all marriage cases: circumstances and evidence sufficient to raise it to the level of moral certitude in the 1. The prevailing basic presumption is judge, which is demanded for any judicial "in dubio standum est pro valore matri- sentence. I do not suppose any judge would monii." demand evidence of actual anterior delu- 2. Also, there is a prevailing presumption sions or hallucinations; but we certainly in natural law .that all men are sane, until need evidence of some kind to indicate that the contrary is proved. mental disease was already underway, such 3. Then, there is a vastly important pre- as excessively moody behavior, strange ac- sumption regarding the lucid interval. When tions and statements, bizarre behavior (fix- a person is known to have been insane be- ing people with stares, secret and furtive fore and after, there is an established pre- chucklings, etc.), any combination or all of sumption that he remained insane and which have weight as showing that the pro- incapable of consent during the interval. gressive deterioration has already begun. The period of intermission is presumed to This lucid interval doctrine is now pretty be a lessening of the insanity rather than a well established. Occasionally, Defensores cure because mental ailments are of their Vinculi in lower courts will zealously argue nature enduring. ' This is all the more 14 2 GASPARRI, DE MATRIMONIO n. 785 (1932); 1 26 S.R. Rota Dec. 83 (1934); 25 S.R. Rota WANENMACHER, CANONICAL EVIDENCE IN MAR- Dec. 47 (1933); 10 S.R. Rota Dec. 18 (1919); 8 RIAGE CASES 296. S.R. Rota Dec. 19 (1916); 1 S.R. Rota Dec. 10, 157 S.R. Rota Dec. 20 (1915). 17, 21 (1909). 16 13 S.R. Rota Dec. 5 (1921). 5 CATHOLIC LAWYER, AUTUMN 1959 against this lucid interval presumption (i.e., add, that we ought to be sure they know the presumption that there is no lucid in- what we are after, i.e., the two questions terval) but they get nowhere and should with which I opened this paragraph: Was get nowhere. he sane? Could he consent? Mental disease has many wide and un- 4. Another interesting and highly signifi- predictable ramifications. Various psychia- cant dondition of insanity case hearings is trists may hold widely differing opinions on that the Code (Can. 1982) orders that the the nature or origin or course of the same opinion of experts is to be sought. This is disease. They may disagree violently upon mandatory in- Canon Law, not optional. many matters with which the disease is This is something new in the Code. The concerned. But much of this disagreement Rota as late as 1916 declared a marriage may from our point of view be simply ir- involving insanity null without having called relevant. Our concern is with the one sim- upon any experts, and the judges wrote ple question: "Was the person capable of into their decision the fact that no law re- giving consent"? Doctors who might agree quired the calling of experts. 17 Even now, on this one point affirmatively or negatively the law demands the experts' testimony might differ on everything else, yet we only as a matter of liceity in the court pro- would have the consensus we ideally seek ceedings. A judge who reaches a state of from the experts. moral certitude without them would seem Both Canon Law and Provida Mater are to pronounce sentence validly. The Rota anxious that the judges receive as complete speaks to the point here also: "An expert a picture as possible of the illness which must be called if it be necessary to detect allegedly vitiates the consent. Therefore, the existence and nature of the insanity; but the doctors who had treated the defendant it there be present common signs by which before the case came up in court are barred any person of sense could know, especially as experts, because they may already have when these signs are numerous and long- 1 8 formed their opinions; it is required that lasting, no expert need be called." they be summoned as Witnesses (Can. The expert is called to determine two 1982; ProvidaMater, art. 143). Aside from things: (1) Was the party sane? (2) Was thus providing a full picture, such witnesses his mental disease such that real consent to can provide evidence for the experts in the contract of marriage was impossible? such times as the expert cannot examine no limit on the number of experts There is the party because of absence or refusal to either way. The Code, using the plural, undergo an examination. The Code (Can. would suggest at least two; Provida Mater 1982) directs an examination, with an elo- in simple cases; the says one is enough quently shrugged "si casus ferat." Rota' 9 once used ten. Whoever they are, Experts are chosen by the judge. We do they should be eminent and competent, not not have the spectacle in ecclesiaftical necessarily Catholic, but "imbued with the courts of psychiatrists testifying to contra- Catholic doctrine on insanity."'20 And I may dictions because they are "for the defense" 17 8 S.R. Rota Dec. 19 (1916). or "for the plaintiff." After the testimony of 18 15 S.R. Rota Dec. 15 (1923). " 10 S.R. Rota Dec. 1 (1918). the experts has been received, the judge is 20 Provida Mater art. 151. free, in good conscience of course, to re- MENTAL DISEASE ject their testimony, to call other experts or sed consiliarii tantum, nec eorum voto one other of greater skill to look further quantum vis erudito et concordi alligatur 25 into the matter. Nor at long last is he in judex." anyway bound to follow the expert opinion, Thus, the judge is firmly protected nor the opinion of the "more expert."'" against purely diagnostic medical decisions. They are skilled in their field, but he is the It is good that he is; psychiatric theory is judge. This is true even if they all concur, prolific and eloquent, but when it comes to though one wonders about the quality of individuals the theory, like statistics, breaks the judgment that would go against the down. Each case must be judged separately unanimous concurring testimony of spe- on its own merits. There is a medical cially qualified experts in the field of their theory, put forward to me recently by an specialty. But of course there are many able and generally conservative psychia- other elements in the proof of a case which trist, that if a man actually develops openly, might give the judge reason for going at the age of say 40, a certain constellation against the experts, and the judge must of of symptoms, we can safely conclude that course concern himself with all possible whether he gave evidence of it or not, he elements of proof which are available. was already a victim of mental disease, al- Other witnesses should always be called to ready constitutionally incapable of sound testify to the daily life of the person before judgment or valid consent to contract when and after the marriage, his mode and con- he was 7 or 12 or 15 or 20, or any time up tent in conversation, his attitudes, his in- to the present. To this thesis Dr. Francis sight, his mannerisms, his obsessions, his Braceland writes: judgment of events, local, personal and public, his appreciation of his surroundings, Frequently in marital situations, the question is asked whether this man knew his family relations, etc. 22 In spite of these what he was doing, and the psychiatrist is other sources of proof, the Code (Can. put on the spot. The answer is that he may 1804, § 2) demands that a judge rejecting have known what he was doing, and yet, the opinion of experts must state the rea- have his judgment colored by delusions. sons upon which the rejection is based. This For instance, there are many people who interestingly reverses the principle estab- are teetering along outside of hospitals. 23 They are borne up by the security of their lished by the Rota's saying it was not nec- families, the fact that people put up with essary to state the reasons for rejection. their idiosyncrasies, that the people in their Thus, while ordinarily he would and should jobs understand them, and they live nar- accept the judgment of experts of whose row, constricted lives in which very few 24 competence and honesty he is satisfied, demands are made upon them. Then comes some type of stress, whether it is being the judge remains the final voice in the taken into military service, an accident, a solemn decision about the validity of the serious illness, or perhaps the feeling that marriage contract which is, after all, a sac- he should be married. Many times this rament. "Nam periti non sunt conjudices feeling that he should be married is simply because of what other people will think 21 20 S.R. Rota Dec. 6 (1928). and someone gets picked out as the partner. indi- 22 8 S.R. Rota Dec. 19 (1916). If the individual is paranoid, if the 23 3 S.R. Rota Dec. 39 (1911). 24 1 S.R. Rota Dec. 10 (1909). 25 16 S.R. Rota Dec. 16 (1924). 5 CATHOLIC LAWYER, AUTUMN 1959

vidual is schizophrenic, or homosexual, this violently insane remaih in a state of appar- marriage will tip over the patient, not ent quiet and yet their actions are not those invariably, but nearly so, and as a conse- of their own mind. there will be a psychotic break, quence, In summary, then, the whole subject of and often a frank, open schizophrenia. Now that patient was schizophrenic to mental disease in connection with the ec- begin with, but he was compensated, as clesiastical courts is one which will require we say, just like a heart is compensated increasing attention as the diseases them- and it is only under great stress, such as selves tend to become increasingly preva- adjusting to another person, the sexual lent. In these circumstances it is a consola- problems involved, etc., that he breaks. juris- Mind you, he might have broken later any- tion and a comfort to know that the how, but this simply does it quickly. The prudence of the Rota is quite clear on what job for the psychiatrist, therefore, is to we should do in the judging of such cases. determine the diagnosis. If the diagnosis is There are certain mental diseases which of schizophrenia, this is not something which their nature allow a lucid interval in which happens all at once; this is a way of life, as it were; it has been coming on for a long marriage might be contracted validly. But 26 time. there are other diseases in which it is no longer in accordance with precedent to as- In this description, the actual marriage sume a lucid interval. If it can be demon- can be precisely the precipitating factor strated that the person had been afflicted which brings out his insanity - not that he with this disease prior to and after the time now becomes mentally ill and incapable of in which the marriage was contracted, the consent but that he always was and now we established presumption is against the exis- know it. Similarly, Monsignor Fidecicchi tence of any lucid interval. says: Besides the establishment of presump- It happens frequently that the family tions with regard to the existence of a and friends of the sick person do not notice lucid interval, Canon Law and court prac- the confusion of his mind, especially at tice have quite clearly outlined the place the beginning of the insanity. Whence it follows that it is not unusual for a person of the expert in cases of mental disease. He to seem capable of carrying on his ordinary is to be consulted, his opinions are to be duties well - and yet he must be consid- carefully pondered, but the judge, in the ered unfit for marriage - sometimes the final analysis, has full responsibility for the 26 Private letter to me dated September 22, 1955. decision.