Invalidity of Marriage by Reason of Sexual Anomalies

The Catholic Lawyer

Volume 10 Number 2 Volume 10, Spring 1964, Number 2 Article 3

Charles J. Ritty, J.C.L.

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CHARLES J. RITTY, J.C.L.*

T HE convocation of the Second Vatican Council was an invitation to an examination of conscience. There has been in the past forty years or more new thinking in the fields of scripture, liturgy, theology and the teaching of the Church (catechetics). Canon Law, on the contrary, has made little revision of jurisprudence in order to keep the law in harmony with the needs of our times, as evidenced through cases. This presents a challenge to us in the field of law. It is obvious that there must be new thinking and research in the studies of Canon Law and the jurisprudence of the Church. Since the law is a living science, it should fall under the new dimensions of thought and the circumstances of our times. The problem of sexual anomalies is becoming more vexing each day with the number of cases presented to ecclesiastical tribunals. Cultural patterns have changed and the Victorian attitudes which once suppressed discussion of sexual anomalies have been submerged by healthier inter- pretations and understanding of these physical and psychical aberrations by advances in genetics, psychology, and psychiatry. With the more positive approach to the study of sexual anomalies, e.g., homosexuality, emerging, we have all noticed an increase in cases which are undoubtedly presented on the premise that Canon Law has progressed at the same rate as the behavior sciences. In treating of the nullity of marriage the tribunals always seek some norms of jurisprudence to arrive at decisions. As is evident, the judges are often left without the proper tools to resolve such difficulties. The Code of Canon Law does not treat of such personality problems, and the jurisprudence of the Rota, which is usually a rule of law and a necessary tool for jurists, has not given much light on the subject. In fact, at times, when related subjects such as the sexual anomalies, homosexuality, psychopathic personalities, constitutional immorality, moral degeneracy, etc., are presented to the Rota, there has been even a negative attitude.

TPaper given at the annual meeting of the Canon Law Society of America. New York, September 17, 1963. * Chancellor, Diocese of Cleveland. INVALIDITY OF MARRIAGE

It is impossible within the scope of this path, the moral degenerate, the compulsive paper to discuss all types of moral delin- sexual offender, the violent sexual offender, quents, sexual perverts, psychotics, psycho- etc. paths, neurotics, sociopaths, etc. We shall 2. The difficulty in securing valid evi- confine our remarks to some thoughts con- dence to categorize such individuals. cerning sexual anomalies in general, with 3. The difficulty in establishing that such special emphasis on nymphomaniacs and a person is incapable of contracting mar- homosexuals. The recent thinking of psy- riage, a stable union of two persons of chologists and psychiatrists will help to shed different sex for the purpose of having light upon the subject, together with some children. indications of the praxis of the Sacred 4. The difficulty of reconciling modern Roman Rota. psychology and psychiatry with the estab- No one will deny that those afflicted with lished jurisprudence of the Church. sexual anomalies or psychopathic defects 5. The difficulty of defining the precise such as we are considering should not enter caput nullitatis (reason for the decree of marriage. The problem arises because such nullity) of such cases. persons do enter marriage and then are 6. The difficulty of establishing exact unable or unwilling to accept the responsi- juridical criteria for the declaration of bilities of such a stable union, and even- nullity. tually abandon their spouses, terminating The approach to the problem may be the marriage. The question is this: is there from two sides: (1) based on the personal any canonical relief for those who enter incapacity of the person to enter a true marriage with one afflicted with sexual marriage - the approach of the modern anomalies, e.g., a homosexual, a nympho- psychologists and psychiatrists; (2) based maniac? on the defects of intellect and will which It would be an oversimplification to state prevent the person from giving true con- that such cases of abnormal sexuality can- sent. The latter approach is the traditional not be handled as such in ecclesiastical tri- one followed in the jurisprudence of the bunals -or to say that the only solution is to Rota. seek a declaration of nullity under the caput I. Sexual Anomalies in General nullitatis (reason for the decree of nullity) This is the most difficult section to dis- of impotency, insanity, or otherwise to seek cuss in this paper, because of the number a dissolution of the marriage as ratum et of perversions or anomalies of sex and the non consummatum. We shall try to establish difficulty of determining what constitutes that the sexual anomalies (moral degener- the moral degenerate or one constitution- acy, constitutional immorality, social degen- ally immoral, or the sexual psychopath. eracy, homosexuality, nymphomania, etc.) Dr. John R. Cavanagh, a noted Catholic may be valid grounds for the nullity of psychiatrist, clearly defines and describes marriage. the types of sexual perversions which he We admit the serious difficulties involved prefers to label as sexual anomalies.1 Among in this subject: 'John R. Cavanagh, M.D., "Sexual Anomalies 1. The difficulty and vagueness in defin- and the Law," The Catholic Lawyer, IX (1963), ing the sexual pervert, the sexual psycho- 4-31. 10 CATHOLIC LAWYER, SPRING 1964 the anomalies listed by Cavanagh, the ent, and irrational idea accompanied by feel- following are pertinent: voyeurism, exhi- ings of tension and fear";5 compulsion is "an bitionism, transvestism, fetishism, sadism, overpowering, unreasonable urge to perform masochism, necrophilia, incest, rape, troilism certain actions and is associated with the (trolism), prostitution, sodomy, bestiality, development of tension and anxiety if the pedophilia, nymphomania, and homosexu- act is not performed."6 In evaluating the ality. responsibility, these factors of repetitive, ob- Certainly one who is afflicted psycho- sessional, compulsive, and forced actions pathically with one of these anomalies must be taken into consideration. The ques- would be classified as a moral degenerate, tion of an irresistible impulse will arise. Each 'r one constitutionally immoral, or a sexual case must be considered on its own merits: psychopath. "Psychiatrically, those sexual "An unresisted urge is one which, because offences which are significant are those which of mental illness, so far causes the individual follow a repetitive obsessional fantasy, lead to lose his power of choice in regard to par- to compulsive acts of forced sexual assaults ticular acts that in spite of the fact that he either on adults or children. These may be may reconcile an act as wrong, he feels so of a nature of an unresisted urge (irresistible impelled to act that he is unable to adhere impulse) ... a surface symptom of a more to what he considers right." 7 The sexual of- profound psychic disturbance." Cavanagh fender will in many cases be legally respon- defines sexual perversions (deviations or sible. His responsibility will depend upon psychosexual abnormalities) as being his basic disorder, not his sexual offense, methods of sex gratification, mainly or ex- and also depend on the degree of compul- clusively, without penile-vaginal inter- siveness involved in the condition.8 course."'2 Many of these anomalies become The question here is whether a person abnormal only when they take an extreme, afflicted with a compulsive obsession to one fixed, or compulsive form. Concerning the of the sexual anomalies (mentioned above) responsibility of the sexual offender, Cava- can enter a valid marriage. Many persons nagh feels that in many cases sex offenders with such anomalies are rational, not insane, should be considered responsible, because and responsible. Unless a person has one of the offense represents lack of control over the sexual anomalies as a symptom of a normal temptations and normal sexual de- much deeper mental disorder, we must con- sire.' He rejects the concept of the sexual sider this person as mentally capable and psychopath as a person normal in all areas responsible, able to understand and to will of conduct except the sexual, i.e., not insane to enter a valid marriage. Cavanagh points 4 except sexually. out that a person should not be judged on Obsession is "an overpowering, persist- 5 John R. Cavanagh, M.D., and John R. McGold- 2 Cavanagh, art. cit., p. 7. "The sexual psychopath rick, M.D., FundamentalPsychiatry (Milwaukee: is usually defined in terms of his inability to Bruce, 1958), p. 264. control his own sexual acts or perversions."- 6 Ibid., p. 265. Frank T. Lindman and Donald M. McIntyre, Jr., 7 Cavanagh, "A Psychiatrist Looks at the Durham The Mentally Disabled and the Law (University Decision," The Catholic University Law Review, of Chicago Press, 1961), p. 299. V (1955), 26. 3Ibid., p. 28. 8 Cavanagh, "Sexual Anomalies and the Law," 4Cf. Lindman and McIntyre, op. cit., p. 318. The Catholic Lawyer, IX (1963), 30. INVALIDITY OF MARRIAGE

the basis of symptoms. The responsibility can natural law must determine the validity of be clarified by the statement that, psychiat- marriage which is contracted by one who is rically, those offenses which are significant morally incapable of giving full marital con- are those which, following a repetitive ob- sent. sessional fantasy, lead to compulsive acts Since there is no specific legislation for of sexual assault either on adults or chil- such an impediment or defect of consent as dren." envisioned by one morally incapable of a Put in philosophical terms: an unresisted contract, ecclesiastical judges are presented urge is one which has developed so exces- with a problem of adjudication, especially sively at the expense of the other psychic since incapacity is not specified in the nat- powers that in comparison to this urge, the ural law.1 other powers exert negligible influence upon reason when it is called upon to make a The question often proposed to tribunals judgment. This urge occupies the focal point is whether or not a person was able to give of consciousness ... it becomes the basis valid consent. In the case of one who is con- upon which the intellect represents an object sidered morally incapable (e.g., for our the or some course of activity as desirable to purposes, those afflicted with a compulsive, will .... This occurs not as an isolated tem- obsession to a sexual anomaly), porary mental illness, but as part of a con- irresistible tinuing illness which both antedates and suc- the question more precisely is whether or ceeds this particular act) 0 not the person fundamentally was unfit for Following these definitions by a psychia- the state of matrimony. trist, we therefore can envision the possi- The Rota has traditionally declared mar- bility of a person who has been afflicted riages invalid by the defect of consent based with a sexual anomaly connected with re- on the psychic inability to give sufficient peated perverted acts which are the result consent at the time of the marriage. Because of an obsessional fantasy and which lead to of recent studies in psychiatry and psychol- compulsive acts which are considered ab- ogy, new light has been brought to bear on normal as being a person who is constitu- the capacity of persons to elicit human acts, tionally immoral, or as a moral degenerate and the Rota has begun to speak of the case ' 1 in regard to sex. in which "usus rationis non sufficit. 2 Does such a one have a personal inca- The law states that all may contract mar- pacity to marry? The law does not directly riage who are not prohibited by law (can. answer the question. Moral or personal in- 1035). Keating recently wrote an excellent capacity to marry, like insanity, is not men- article concerning the psychically incom- tioned among the diriment impediments of Chapter IV (can. 1067-1080) of the mar- 11Sacrae Romanae Rotae Decisiones: Dec. riage law in the Code of Canon Law, or XXXIII, dec. XLIV (1941), p. 489, n. 2, coram among the defects of consent of Chapter V Heard, 16 octobris 1942: "Matrimonium quod spectat, nullum positive statuit Ecclesia impedi- (can. 1081-1093). The Code does not legis- mentum pro eis qui sanae mentis non sunt, sed late and there is no history of jurisprudence rem reliquit iuris naturae principiis." ("The Church for such an impediment or reason for nullity. has not positively established any impediment with regard to marriage for the insane, but has As in the case of insanity, the norms of the rather left the matter to the principles of natural law.") 9 Ibid., p. 29. 12 S.R.R. Dec. XXVI, dec. LXXXIII (1934), 10 Loc. cit. p. 709. 10 CATHOLIC LAWYER, SPRING 1964 petent. 13 He states that the caput nullitatis The Code does not speak specifically of (reason for the decree of nullity) would be the defectus animi (defective intent) among grounded on a defect of personal capacity, the diriment impediments (in which there is sanctioned by a lex inhabilitans (anomaly) also included the requirement of personal of the natural law.1 4 The Code also requires capacity) or among the defects of consent, that the contractants must be iure habiles but considers it as a lack of natural capacity. (legally competent).15 The Code, however, does speak of the The personal capacity or incapacity of the discretio iudicii (discretion of judgment) person with a sexual anomaly is important either as one of the fundamental prerequi- to consider here. Writing of the discretio sites of a general personal capacity, when in iudicii in ordine ad matrimonio (capacity Book II it states: "Infanti assimilantur quot- of understanding requisite for marriage), quot usu rationis sunt habitu destituti" ("All D'Avack states that the legislator considered persons who are habitually without the use it superfluous to sanction with a specific of reason are judicially in the same class as norm the nullity of a bond contracted by infants"), (can. 88, § 3); or as one of the one who is found to lack sufficient capacity juridical capacities of the procedural law to intend the act which he effects and the when in Book IV, canon 1648, states: "Pro life and duties which emanate from it.16 It minoribus et iisqui rationis usu destituti is an unquestionable presumption that the sunt, etc." ("In favor of children and those intrinsic incapability of the contractant to persons who are bereft of reason.") Finally, intend and to will the marriage renders the concerning penal responsibility and imput- bond ipso iure (by the law itself) null, ability, Book V, canon 2201, rules: "Delicti specifically because it places him in the im- sunt incapaces qui actu carent usu rationis." possibility of emitting a conscious and de- ("Persons who actually lack the use of liberate consent. But D'Avack finds it more reason are incapable of crime.") correct to consider the case as one of When the Code treats of matrimonial personal incapacity-rather than lack of consent and its defects, it always refers to consent. The defectus discretionis iudicii the contractants who are already iure habiles (failure in the ability to understand) is pre- ad contrahendum (legally fit for marriage), cisely a defect of the natural capabilities of i.e., contractants who are pleno usu praediti the person, and only in its effect does it sive cognitionis intellectivae sive delibera- resolve itself to a defectus consensus (defec- tionis volitivae (endowed with either the full tive agreement). use of intellectual cognition or volitive deliberation), and who are constitutionally and juridically capable of giving valid matrimo- 13 John R. Keating, "The Caput Nullitatis in Insanity Cases," THE JURIsT, XXII (1962), 391 ss. nial consent. 14 Ibid., p. 396. Just as in all other human acts, so in 15 Can. 1081: "Matrimonium facit partium con- matrimony there is required in the contract- sensus inter personas iure habiles legitime manifestatus..." ("Marriage is effected by the consent ant "sufficiens discretio iudicii ad actum of the parties lawfully expressed between persons intelligendum et eligendum." ("Having suffi- who are capable according to law ... ") cient understanding to know and to elect to 16 Petrus D'Avack, "Sul dejectus discretionis iudicii nel Diritto Matrimoniale canonico," Archivo perform an act.") The general dispositions di Diritto Ecclesiastico, 11 (1940), 157-178. of the positive law are found in canon 1035: INVALIDITY OF MARRIAGE

20 "Omnes possunt matrimonium contrahere, and practice of the Rota. Also according qui iure non prohibenteur." ("All persons to St. Thomas, an act proceeds from the will 2 who are not prohibited by law can contract with knowledge of its end. 1 Consequently, marriage.") Canon 1081 determines the just as in the prudens electio voluntatis consent "inter personas iure habiles legitime (a judicious willed choice [to act]), so manifestatus." ("Lawfully expressed be- without the consciousness of the act either the latter is tween persons who are capable according to in itself or in its consequences, law.") These canons refer primarily to the no longer voluntary, because, as St. Thomas fundamental requirement of personal capa- explains, "nihil volitum nisi praecognitum" which is not first con- city of the contractants. It is the natural law ("nothing is willed manifestation of which inhibits the celebration of marriage by ceived"). Hence, every consent presupposes and demands a "iudi- one who would not have full and perfect cium quoddam de eo in quod consentitur" consciousness or free capacity of self-deter- by that to which mination with relation to the bond which he ("power to judge measured consent is given") .22 Canonists and theo- intends to bring into being and to the very logians agree that the act must be "positus serious rights and duties inherent in the cum plena mentis advertentia et perfecto bond, which he must assume. Sufficiens voluntatis consensu" ("arranged with com- discretio iudicii (Sufficient ability to under- plete mental perception and perfect voli- stand) is indispensable in canonical mar- tional accord"). riage, considering its juridical nature - a Plena mentis advertentia (complete men- consent of the parties alone ("Qui nulla hu- tal acumen) requires that the author have mana potestate suppleri valeat") .17("Which not merely an instinctive perception or a [consent] no human power can supply"). purely material understanding of an act (an Granted that the defect of the personal advertence proper in some extent to ani- capacity is intrinsically bound up with the mals), but rather a true logical foresight and consent, still every alteration or every lack full consequential knowledge of the act it- of intellective knowledge or every defect in self and its motives, in its essence, its im- the election and deliberation of the will re- portance, and its effects. solves itself into a true defect of consent. Perfectus voluntatis consensus (perfect The defect of personal natural capacity is voluntary accord) requires that the author, referred to and is the consequence of the manifestation of the consent of the parties. 8 Only the knowing and willing man can be 20 S.R.R. Dec. XXII, dec. XII (1930), p. 127: held accountable to his proper actions ac- "Actus autem humanus tunc tantum habetur, si procedat ab homine qua tali seu ab eius deliberata St. Thomas19 and the doctrine cording to voluntate, idest si actio ponitur a sciente et volente." ("A human act is had only if it proceeds 17 Can. 1081, § 1. from man as such, from his deliberate will; that is, isD'Avack, art. cit. if the action is posited by a knowing and willing 19 St. Thomas, Summa Theol., I-Ilae, q. 21, a 3: man.") (The "reference should read thus: St. Thomas, 21 Summa Theol., I-Iae, q. 6, a. 1: "Actus proce- Sunima Theol., I-Iae, q. 21, a. 2 (not 3).") dens a principio intrinseco seu a voluntate cum "Tunc actus imputatur agenti, quando est in potes- cognitione finis." ("An act proceeding from an tate ipsius, ita quod habeat dominium sui actus." intrinsic principle, that is, from the will with ("An action is imputed to an agent, when it is in knowledge of its end.") 22 St. Thomas, Summa Theol., I-IIae, q. 74, a. 7. his power, so that he has dominion over it.") 10 CATHOLIC LAWYER, SPRING 1964

2 5 having full consequential consciousness of tive appetite. the act, freely determine himself to put it It is conceivable, therefore, that a person into being, i.e., an act not merely the result with a sexual anomaly which has reached of automation, or from an external force, the state of an obsessive, irresistible, com- but by his own actual intrinsic volitive delib- pulsive urge would have a personal incapac- eration. It is the rational appetite which ity so that he would not be able to elicit a brings this about: "apprehenso fine, aliquis free and deliberate act which is required in potest, deliberans de fine et de his quae sunt matrimonial consent. It is possible for a man ad finem, moveri in finem vel non moveri" to have a right understanding of marriage, ("After a goal to be achieved has been de- but because of some defect to be incapable termined, anyone who thinks about it and of right action of the will to elicit the act of considers those things attainable by reach- ing the goal, will be either moved toward its "Unde causae quae diminuunt iudicium rationis, 2 3 attainment or not.") sicut ignorantia; vel quae diminuunt liberum It follows from scholastic teaching that motum voluntatis, sicut infirmitas vel violentia aut metus aut aliquid huiusmodi,diminuunt peccatum, whatever is lacking in the contractual con- sicut et diminuunt voluntarium; in tantum quod si sent, i.e., if one were deprived of the plena actus sit omnino involuntarius non habet rationem mentis advertentia, or the perfectus volun- peccati." ("Wherefore those causes which weaken the judgment of reason (e.g. ignorance), or which tatis consensus in ordine ad matrimonium weaken the free movement of the will (e.g. weak- (complete mental perception or the com- ness, violence, fear, or the like), diminish the plete volitional integrity proper for the mar- gravity of sin, even as they diminish its volun- ried state), there would be lacking true tariness; and so much so, that if the act be altogether involuntary, it is no longer sinful.") consent. The grave inversion of the sexual 25 St. Thomas, Sumnma Theol., I-I, q. 77, a. 1: anomalies, or the serious lack of personal "necesse est quod quando una potentia intenditur capacity, could affect both the intellect and in suo actu, altera in suo actu remittatur, vel etiam totaliter in suo actu impediatur ...quando the will in the contract of marriage. The sex motus appetitus sensitivi fortificatur secundum anomalies can impede the action of the in- quamcumque passionem, necesse est quod remit- tellect and the will2 4 especially in the sensi- tatur vel totaliter impediatur motus proprius appetitus rationalis, qui est voluntas. Alio modo ex 23 St. Thomas, Suma Theol., I-Iae, q. 6, ad 2. parte obiecti voluntatis, quod est bonum ratione The natural intrinsic capability to be responsible apprehensum. Impeditur enim iudicium et appre- or accountable juridically for an act is that which hensio rationis propter vehementem et inordi- the canonists and the theologians call the sufficiens natam apprehensionem imaginationis et iudicium discretio idicii actui proportionata, i.e., two virtutis aestimativae, litpatet in amentibus." ("it elements distinct but concurrent and interdepend- follows of necessity that, when one power is intent ent: in its act, another power becomes remiss, or is (1) Intellective-the capability to know the act even altogether impeded, in its act ...when the both in itself and its immediate and mediate con- movement of the sensitive appetite is enforced in sequences, in such a way as to consciously put it respect of any passion whatever, the proper move- into effect, i.e., true capability for logical and con- ment of the rational appetite, or the will must, of sequential understanding of the act, so as to be necessity, become remiss or altogether impeded. able to discern and differentiate the motives, to Secondly, this may happen on the part of the measure its religious, ethical, social, juridical will's object, which is good apprehended by reason. value, its mediate and immediate consequences. Because the judgment and apprehension of reason (2) Maturitas libertatis is volitive capability is impeded on account of a vehement and freely to self-determine oneself to the performance inordinate apprehension of the imagination and or non-performance of the act. judgment of the estimative power, as appears in , St. Thomas, Summa Theol., I-Ilae, q. 73, a. 6: those who are out of their mind.") INVALIDITY OF MARRIAGE marriage.2 is that of a man addicted to narcotics and The attitude of the Rota concerning this guilty of further criminal acts, etc. It deals point can be illustrated by two cases. Both with the constitutional immorality of the treated of the personal incapacity of the man. Some observations of the Rota con- contractants. cerning this case are worthy of note. 1. The first case, coram Wynen (1941 ),27 The Rota appraises the concept of the new opinions of the psychologists and the 26 St. Thomas, Summa Theol., I-Ilae, q. 77, a. 2: psychiatrists, who require not only the use "Ad recte agendum homo dirigatur duplici sci- of reason and the formal act of the will, but entia, scilicet universali et particulari, utriusque a "third element," appreciation (seu aesti- defectus sufficit ad hoc quod impediatur rectitudo voluntatis et operis.... Et iterum considerandum mationem) of the object, which would con- est quod nihil prohibet aliquid sciri in haitu, quoad tain an element both cognoscitive and tamen actu non consideratur. Potest igitur con- appetitive as a function of the reason and tingere quod aliquis etiam rectam scientiam habeat in singulari, et non solum in universali, sed tamen the will. The Rota mentions that this theory in actu non consideret... quod autem homo non is neglected in moral theology and canon consideret in particulari id quod habitualiter scit, law. The theory is that the cognoscitive quandoque quidem contingit ex solo defectu inten- function has two elements: one, representa- tionis; ... quandoque autem homo non considerat id quod habet in habitu, propter aliquod impedi- tive or conceptual; the other, ponderative or mentum superveniens .... vel propter aliquam estimative - and that these are concerned infirmitatem corporalem; et hoc modo ille qui est with the agibilia or the practical judgment. in passione constitutus, non considerat in particulari id quod scit in universali, inquantum passio The cognoscitive concerns the object (quid impedit talem considerationem. Impedit autem sit), the estimative cognition considers the tripliciter: ... tertio per quamdam immutationem social, ethical, juridical value of the object corporalem, ex qua ratio quodammodo ligatur, ne (e.g., marriage). The Rota states that this libere in actum exeat." ("Since man is directed to right action by a twofold knowledge, viz., universal actually refers to the object from two dif- and particular, a defect in either of them suffices ferent aspects. According to the modern to hinder the rectitude of the will and of the psychologists, the act can be impugned by deed.... Again, it must be observed that nothing prevents a thing which is known habitually from reason of the defect of the required appre- 28 not being considered actually: so that it is possible ciation. for a man to have correct knowledge not only in If a man cannot estimate even substanti- general but also in particular, and yet not to consider his knowledge actually. ... Now, that a man ally the thing to be done, he is impeded in sometimes fails to consider in particular what he his natural appetitive faculty, either from an knows habitually, may happen through mere lack impediment which is only transitory (e.g., of attention;... Sometimes man fails to consider drunkenness, delirium, violent fever) or actually what he knows habitually, on account of some hindrance supervening .... or some bodily from a habitual defect as found in many infirmity; and, in this way, a man who is in a mental cases, and psychic anomalies, which state of passion, fails to consider in particular what are recently called "constitutional immoral- he knows in general, in so far as the passions ity."29 hinder him from considering it. Now it hinders him in three ways ... thirdly, by way of bodily parte viri. (It received a favorable decision in transmutation, the result of which is that the 1933, negative in 1935 - by reason of a defect of reason is somehow fettered so as not to exercise consent on the part of the man.) its act freely.") 28 Ibid., no. 9, p. 151. Concerning this same subject 27S.R.R. Dec. XXXIII, dec. XV (1941), pp. cf. also Dec. XXXV, dec. LVII (1943), pp. 144 ff. It received a favorable decision in 1933, 596-600. negative in 1935 - ex capite defectus consensus ex 29 Loc. cit. 10 CATHOLIC LAWYER, SPRING 1964

Modern psychologists demand, besides can validity contract a theological fault the intellectual conception and consequent when he cannot estimate its ethical value.3 1 act of the will, a "third element" to elicit The Rota continues: "It can no longer be valid matrimonial consent; and they assert sustained that constitutional immorality is that the man in this case, because of his con- nothing more than a species of mental ill- stitutional immorality or by a defect of the ness." If these men are considered such that ethical element, could not know the value crimes can be imputed to them, by what law and weight (momentumn) of marriage and, are they judged to give valid consent? We therefore, did not elicit valid marriage con- reply that such men cannot sufficiently esti- sent. The Rota explains that this is more mate the value and the weight of marriage accurately a description of the foreknowl- and all the obligations connected with it. edge by which the act of the will is consti- But how can we know that such a defect is tuted and can be called human - really the so grave that they cannot estimate the sub- praecognitum (premeditation). stantial value of marriage? (Tanzi, the psy- The Rota admits that, notwithstanding chiatrist, points out the great difficulty in the new terminology, the theory substanti- establishing the certain boundaries between 32 ally agrees with the scholastic philosophy. normal and abnormal.) According to St. Thomas and ecclesiastical The Rota concludes that if there is suffi- jurisprudence, the mere use of reason or the cient estimative knowledge of the substantial previous knowledge of the nature of mar- value of marriage, there is not, however, riage as described in canon 1082 is in no required an exact reasoning or understand- way sufficient, but there is also required a ing of each and every obligation connected discretio (capacity to discern) and a natu- with marriage. Much less is it required that ritas iudicii (mature understanding) which one have a firm propositum to fulfill the ob- is properly proportioned to enter the mar- ligations of marriage, or is there needed a riage contract.30 It is much more important reflex estimative knowledge. So little is re- in the contracting of marriage, which im- quired for valid consent in a man who has poses a grave and perpetual obligation. sufficient conceptual knowledge of the na- It is to be noted that constitutional im- ture of marriage (can. 1081, § 1) and is 33 morality must be understood in the psycho- endowed with free will. logical sense, namely as the psychological incapacity of a person rightly to consider 3 Ibid., n. 28: "Ad valide contrahendum the ethical value and, according to this right non sufficit mera cognitio quid sit matrimonium, quae estimation, to direct his mode of acting. It cognitio etiam in puero haberi potest, sed insuper is not to be taken in the theological sense, requiritur maturitas iudicii, quae contractui matri- as the conceptual incapacity to understand moniali ineundo proportionata sit... sicuti alicui peccatori habituali nequit ideo, quia habitualiter a wrong or to elicit an act which is a sin. pravos actus committit, abiudicari liberum arbi- Both senses are intimately connected, be- trium, ita ei adiudicari nequit facultas cognoscendi cause it can be rightly asked whether one valorem substantialem rei agendae, esti agatur de re magni ponderis qualis est matrimonium." ("In order to contract validly, mere knowledge of 0 St. Thomas, Dist. 27, q. 2, ad 2 ad II; S.R.R., what marriage is does not suffice, which knowl- dec. cit., n. 11. edge can be had even in a youth; but moreover 31 S.R.R., dec. cit., n. 15. there is required maturity of judgment propor- 32 Ibid., n. 16. tioned to the matrimonial contract to be entered INVALIDITY OF MARRIAGE

The Rota further warns that we must be Those who lack the use of reason are to careful in using this modern doctrine in be prevented from marriage and not only judging the nullity of marriage because of a those who lack use of reason, such as idiots, defect which lacks even an appropriate but also those who are like them in some name (ambiguous terms: constitutional im- way, who cannot form a right judgment of morality, moral insanity) and about whose the nature of the contract, such as infants, essence even the authors are divided. Ex- or those equal to infants. Supposing suffi- treme caution must be used in adjudicating cient knowledge in the agent, there is also nullity because of the uncertainty of juridi- required for consent sufficient deliberation cal criteria and such equivocal terms which of the will, which clearly is lacking where 3 4 may cause confusion. the intellect is absent, and also when disturb- 2. The second case of the Rota pertinent ances either of the intellect or will, through to this subject is one of nymphomania, abnormal phantasies or disordered nerves, coram Heard (1942).3.5 The Rota considers remove the possibility of making a true elec- in this case the fact that the intellect may tion of the will. A person, therefore, can be remain intact, but because of a defect of the such that, although master of himself, he equilibrium of the organs and the co-ordina- commits acts which he reproves, because he tion of the powers, the will is rendered in- is dominated by an interior invincible force. efficacious, and there is had either abulia or The intellect remains sufficiently sane, and 3 inertia, or an irresistible impulse which the the delirium exists only in the acts. 7 person cannot resist.3 6 It is not necessary for a valid contract that the person have before his eyes the sanctity of matrimony (can. 1082). The case of the into ... just as it cannot be denied that an habitual sinner possesses free will, because he habitually nymphomaniac, rather than arising from a commits depraved acts, so also it cannot be de- defect of the necessary knowledge, is in fact nied that he possesses the faculty of knowing the based on the personal incapacity of the substantial value of the matter to be done, although there is question of a matter of great woman to give valid consent on account of importance, such as marriage.") Ibid., n. 13 and 14. The Rota gave a negative decision to this case, not because of the personal sic digestio impedit contemplationem, haec vero incapacity, but because of the lack of evidence, digestionem retaardat, tristitia generat morbum, and because three years before the marriage the laesio organorum amentiam causat." ("Whatever man had apparently been cured of his narcotic impedes a cause, by its very nature likewise im- addiction. pedes the effect .... Consent of the will is an act, 35S.R.R. Dec. XXXIII, dec. XLIV (1941), pp. which presupposes an act of the intellect." S.R.R., 488 ss. dec. cit., p. 489: "The intellect and the will are U St. Thomas, Suppl., q. LI, art. I: "Quidquid faculties of the soul and are therefore completely impedit causam de sui natura impedit et effectum spiritual ... nor can they undergo physical sick- similiter .... Consensus autem volintatis est actus, ness .... Extrinsically, however, in their operation, qui praesupponit actum intellectus." S.R.R., dec. they can be impeded because of defects either in cit., p. 489: "Intellectus autem et volUntas sunt the external and internal senses, which the intellect facultates animae ideoque penitus spirituales... uses to form concepts and finally the judgment, nec ulli morbo physico subiacere possunt .... or in the executive powers, which obey the com- Extrinsice tamen, seu in suo operatione, impediri mand of the will .... Thus digestion impedes con- possunt ob defectus sive in sensibus externis et templation, this latter hinders digestion, sadness internis, quibus utitur intellectus ad conceptuts gives rise to sickness, organic injury causes in- formandos et deinde iudicium, sive in potentiis sanity.") executivis, quae imperio voluntatis subserviunt ... 37 S.R.R., dec. cit., n. 2, p. 489. 10 CATHOLIC LAWYER, SPRING 1964 the impossibility of deliberation. The sexual As is evident from the two cases which instinct completely dominates her person- have been quoted from the Rota decisions, ality - a sexual degeneration which renders such cases of one who is afflicted with a her pathologically irresponsible. She is not sexual anomaly or one who is constitution- amens (foolish) but demens (insane), a ally immoral are not impossible, notwith- monomaniac concerning libidinous acts. We standing the warnings given by the Rota are concerned here not about her simulated about the difficulties inherent in such cases, consent but rather that she gave consent particularly because of the lack of specific impulsed by a force of an irresistible in- juridical criteria. stinct. The force of the irresistible instinct In adjudicating such cases, therefore, it cannot effect the election of the means even would be necessary to evaluate the circum- indirectly. Neither is the degree of delibera- stances of each case, to seek the counsel tion required for marriage to be exaggerated of experienced psychologists and psychia- - "sufficit quae ad peccatum mortale re- trists (peritti) (experts), and to weigh quiritur" ("all that is required is that degree carefully the influence of the obsessive com- 35 of intent necessary for mortal sin.") pulsion on the action of the intellect and the If the consent of the woman does not will. The Rota itself has taken into con- directly make the marriage invalid by reason sideration (e.g., in the case of the nympho- of the irresistible instinct, indirectly it makes maniac) the personal incapacity of the the marriage invalid - "ex ipsa intrinseca subject to contract valid marriage, not only et necessaria incapacitate contrahentis" by reason of the invincible instinct, but also ("from the very internal and compulsive in- by reason of the intrinsic and necessary incapacity to perform the marital act") to capacity to contract marriage and to pre- preserve the bonum fidei. serve the bona matrimoni (integrity of The Rota compares this defect to the marriage). Here there is no question of a diriment impediment of impotence. Impo- diriment impediment, there is no question tence is not a diriment impediment to mar- of insanity; but there is a basic incapacity riage unless it is incurable. If one is curably of the subject to give full and free consent impotent, he is master of his body and can to the substance of the contract of marriage. transfer the ius (right) to his body, not at Is it not conceivable, therefore, that one once but in the future exercise, which is who is afflicted with one of the sexual ano- sufficient for valid consent. If the woman malies, by reason of an obsessive compul- was truly suffering an invincible sexual in- sion to perform unnatural and perverted stinct so that she would indiscriminately acts, could also be considered in the same give herself to any man, at the time of the category as the nymphomaniac, who has an marriage she was not master of her body invincible sexual instinct contrary to the and thus could not transfer the ius to her substance of marriage? body. And it is not necessary to consider II. Nymphomania and Homosexuality 3 9 whether it can be cured. We come now to a study of two specific 3 Ibid., n. 6. anomalies, homosexuality and nymphoma- 39 ibid., p. 495. It is to be noted that the Rota nia. We treat these because of the frequency rendered a non constare decision because there of such cases brought before ecclesiastical was not sufficient evidence for the invincible instinct. tribunals in recent years. INVALIDITY OF MARRIAGE

A. Nymphomania nymphomaniac cannot have the usus exclusi- Nymphomania is an excessive sexual de- vus corporis (exclusive exercise of her sire in the female, usually psychogenic in body) - a quality which is always necessary origin, which often leads to extramarital to the usus matrimonialis (marital experi- relations or masturbation, and finally to ence). And this, because of the degree of 40 chronic compulsive promiscuity. her anomaly, gives her a personal incapa- Besides the Rotal case of nymphomania city. In this case (coram Sabattani-1957), mentioned previously, there is another case, it is decreed that grave and incurable coram Sabattini (1957) .1 In this latter case nymphomania certainly invalidates mar- the court declared that the mental defect of riage; the invalidating force does not come the true nymphomaniac is not so much a from a defect of consent, but rather as a case of inability to elicit integral consent; diriment impediment, since the anomaly of rather it has the juridical figure of a diriment the nymphomaniac seems to approach the impediment and is quite similar to the diriment impediment of impotence. 2 impediment of impotence.1 The comparison of the two cases (1942 This case, like the one in 1942 coram and 1957) reveals a slightly different ap- Heard, deals with the personal incapacity of proach. The first case (1942-coram the subject to assume the obligation of Heard) deals with marriage in fieri-and marital fidelity. It frequently happens that considers the subject as giving consent, but the nymphomaniac, unless she sees marriage forced by an invincible sexual instinct, the only as a means of satisfying her stimulus sexual degeneration which renders her path- which is irresistible - in which case she ologically irresponsible. The second case would necessarily lack liberty - quoad (1957-coram Sabattani) approaches the matrimonium in fieri (as far as the marriage nullity after the manner of a diriment im- ceremony) can posit the element of cog- pediment and considers the marriage in nition and of the will necessary for the facto. The marriage is rendered invalid indi- contract, because she can understand the rectly, based on the woman's intrinsic and substance of marriage and the bonum of necessary personal incapacity to preserve fidelity. The difficulty arises quoad matri- the bonum fidei. Because of her psychologi- monium in facto (as far as an existing mar- cal defect (nymphomania) she is like a riage) - or rather circa usum conjugii (with person who is impotent. She is, therefore, respect to marital practice). impeded and not able to give in marriage In comparing this anomaly with impo- the usus exclusivus corporis. tence, we know that impotence is an impedi- Regardless of the manner of approach to ment, a juridical concept, not a psychological these two cases, it is apparent that it is species. Impotence is no more than that the possible to declare null and void a marriage usus corporis (corporal connection) be- which is contracted by one who is afflicted 4 3 tween spouses cannot be had. However, the with a serious sexual anomaly. 40 Cavanagh, "Sexual Anomalies and the Law," The Catholic Lawyer, IX (1963), 13. This subject 43St. Thomas, Suppl., q. LI, art. 1. "The mind and has already been treated by Keating, art. cit. the will can be impeded in their operation by 41 Fasc. n. 132. Reported in part in IlDiritto reason of an extrinsic cause, either in the senses Ecclesiastico, LXXI (1960), 314-322. by which the intellect forms its concepts, or in 42 Keating, "The Caput Nullitatis in Insanity the executive powers which are subservient to the Cases," THE JURIST, XXII (1962), 399. rule of the will." 10 CATHOLIC LAWYER, SPRING 1964

B. Homosexuality is a clear distinction.45 A homosexual may be a pervert but he is not necessarily so. A Perhaps the most vexing problem brought pervert is an individual, homosexual or het- before ecclesiastical tribunals in recent erosexual, who finds complete sexual satis- years has been the problem of homosex- faction in a manner which frustrates the uality-in relation to the nullity of marriage. primary purpose of the sexual act. A homo- Coburn has already treated this subject in a sexual, or invert, therefore, is not a pervert paper read at the regional meeting of the unless he performs perverse acts. The sexual Canon Law Society of America in New inversion is a way of thinking and feeling, York City."' not merely a way of acting. The perform- In homosexuality there is a deviation of ance of homosexual acts is not in itself evi- the sex feelings away from their proper dence of inversion. "Homosexuality ...is heterosexual object to a sexual object of the not an entity in itself but is merely a symp- same sex. Dr. Cavanagh defines honosex- torn of some underlying disorder, probably uality as "a state in which the sexual object neurosis.... A definition in terms of be-- is a person of the same sex, and in which havior is preferable since homosexuality is a there is a concomitant aversion or abhor- symptom of underlying personality distor- rence to the sexual relations with members '' 5 tion and not of a single integrated psychi- of the opposite sex. 4 47 atric syndrome. ' Homosexuals are also called perverts. But It is important, therefore, to make a clear this is not a truly defined description. There distinction between the state of being a homosexual and the way of acting as a 44 Vincent Coburn, "Homosexuality and the In- homosexual. There are some homosexuals validation of Marriage," THE JURIST, XX (1960), who are inverts as a way of thinking and 441-459. feeling, but who have never indulged in St. Thomas uses the term sodomy in referring to 5 homosexuality, Snumna Theol., 1l-l1, q. 154, art. overt homosexual acts.' 12: Whenever there occurs a special kind of de- Following the definition of Cavanagh we formity whereby the venereal act is rendered un- have a restricted concept of homosexuality becoming, there is a determinate species of lust. This may occur in two ways: First, through being contrary to right reason, and this is common to -if; Loc. cit. all lustful vices; secondly, bezause, in addition, it 47 Leon Salzman, M.D., "The Concept of Latent is contrary to the natural order of the venereal Homosexuality," The American Journal of Psy- act as becoming to the human race: and this is choanalysis, XVII (1957), 167. called the unnatural vice. This may happen in 4 John F. Oliven, M.D., Sexual Hygiene and several ways. First, by procuring pollution, with- Pathology: A Manual for the Physician (Phila- out any copulation, for the sake of venereal pleas- delphia, 1955), p. 430: "This is a chronic usually Lire. This pertains to the sin of uncleanness which lifelong disorder of the total personality, although some call effeminacy. Secondly, by copulation in a number of cases its only apparent manifesta- with a thing of undue species, and this is called tion is the abnormal direction of the sex drive. bestiality. Thirdly, by copulation with any undue Homosexuality is basically a medical (probably sex, male with male, or female with female, as chiefly psychiatric) problem. But because of its the Apostle states: and this is called the vice of relative incurability, the fairly frequent tendency sodomy. Fourthly, by not observing the natural of these patients to seduce others, and because of manner of copulation, either as to undue means, the almost instinctive animosity the homosexual or as to the other monstrous and bestial manners inspires in many normal people, in practice it has of copulation. remained more a social than a strictly medical '5 Cavanagh, art. cit., p. 24. problem." INVALIDITY OF MARRIAGE

(for our purposes). It will not be necessary sex the person is absolutely impotent." to evaluate the moral responsibility of the If we follow the definition of Oesterle homosexual or the theories as to the cause regarding the obligatory homosexual, and of the anomaly (organogenic or psycho- if proof can be had that the person never genic). We note, however, that there is no had any inclination toward the other sex, agreement among psychiatrists that homo- the nullity of the marriage because of im- sexuality is inborn.-" potence might be relatively easy to establish. Various divisions are given for homo- When we consider the facultative or the bisexuality.1° sexual homosexual, the marriage can be We shall follow Oesterle who divides consummated and thus it becomes indissolu- homosexuality into primary and secondary ble. In the latter case, according to present homosexuality: primary is always founded jurisprudence and legislation, there can be in the character of the person, possibly only the solution of the problem by a sepa- innate, of indigenous causes; secondary is ration a mensa et toro (from bed and found when the person acquires the anomaly board). The homosexual can, in many in- during life, often by seduction. There is a stances, consummate the marriage by nor- further division between facultative and meal sexual intercourse, at least with great obligatory homosexuality: facultative refers psychic effort, sometimes with repugnance to the bisexual attraction; obligatory is such and abhorrence, sometimes with the repre- that in relation to persons of the opposite sentation in fantasy that husband or wife is the homosexual partner. 49 James 1H. Van der Veldt and Robert P. Oden- Homosexuality always presents a danger wald, Psychiatry and Catholicism (New York, 1952 ),p. 380. to marriage, and often leads to the complete '0Cavanagh divides the homosexual into three breakup of the union; the marriage itself types: becomes victimized. Precisely because the I. True homosexuality - also called psycho-sexual homosexual homosexuality- is the condition described above. is not always a priori prevented The homosexual has no interest in the persons of from the consummation of the marriage by the opposite sex. This condition is usually con- reason of the aversion to the other sex, still, sidered to be acquired in early life and to be as frequently happens, there is danger that psychogenic in nature. 2. Pseudo homosexuality- or erroneously called the marriage will not be consummated. bisexuality-a condition in which the individual The canonist may ask the question: Can the is sexually interested in both sexes. Not true nullity of a marriage be explained on the homosexuality. basis of homosexuality? The question is 3. Constitutional homnosexuality -a term used by those who felt that the condition is inborn and, pertinent because not every homosexual therefore, unchangeable. "There is no scientific man or woman is impotent. proof of this theory." (Art. cit., p. 25.) One must determine whether the case is True or genuine homosexuality is also divided into essential and acquired: one of obligatory or facultative homosexual- Essential, which is genetically determined or ity. If the homosexuality is so fixed that it caused by very early environmental factors or becomes obligatory, or if it is obligatory influences, sometimes beyond consciousness. Acquired, that is, predominantly determined by from childhood, and if this has progressed new factors arising in later life-late childhood, adolescence, or manhood. Cf. Michael J. Buckley, 51 Gerard Oesterle, "De Relatione Homosexuali- Morality and the Homosexual (Westminster, Md., tatis ad Matrimonium," Revista Espafiola de 1959), pp. 16-17. Derecho Canonico, X (1955), no. 28, p. 23. 10 CATHOLIC LAWYER, SPRING 1964 in successive degrees, and this can be The Rota suggests questions which established, then we are confronted with a should be asked in such cases: whether the practical case of impotence absoluta et person in question suffered a sickness or a insanabilis (absolute and incurable) .2 pathological condition, either congenital or What makes the judgment of homosexu- acquired; at what age the vice was begun, ality so difficult is the fact that some of those and from what cause, e.g., from morbid persons who are active homosexuals are dispositions, from defect of discipline of only facultative homosexuals, i.e., they are parents, from a seducer, or from excesses in bisexual. In such cases a judge cannot be adolescence. The jurisprudence of the Rota careful enough in giving a judgment or opin- at that time held the opinion that perpetual ion, before accepting as proved with moral functional impotence cannot be readily said certitude that impotence is present in the to exist if it has had its source from these canonical sense. It happens, and with previous vices. tragedy to the spouse, that a homosexual It may be important for our study to desires marriage only as a coverup for his evaluate the argumentation of Father perverse activity. Oesterle. Oesterle has written extensively The Rota on February 16, 1940, in an regarding homosexuality and the invalidity interesting case of functional impotence of marriage. 4 The writer, after serious re- with regard to a man who had the sexual search of Rotal jurisprudence as far back as anomaly of practicing sodomy,5 3 gave some 1877, was unable to find any marriage case practical directives for examining such which was based on the juridical cause of cases, with these observations: It is the homosexuality.," opinion of certain people that such inversion Oesterle argues that a marriage with a is nothing more than the effect of an innate homosexual can be annulled on three instinct or a physical impulse, i.e., a sickness, grounds: (1) exclusio matrimonii ipsius which is unconquerable and, therefore, perpetual. In foro externo (in the open forum) 54 "Animadversiones in Sententiam S.R.R., die 23 it is necessary that we abstain from all kinds feb., 195 1, coram Staffa," 11 Diritto Ecclesiastico, of general judgments with regard to impo- LXII (1951), 730-750; "De Relatione Homosexu- alitatis ad Matrimonium" cited in note 51 supra; tence which embraces perversion or inver- "Voluntas se obligandi et voluntas non adimplendi sion of the sexual appetite. Each case should ad tempus vel in perpetuum in ordine ad prolis be carefully weighed. Even if there is aver- generationem," Perfice Munus, XXXIV (1960), sion or frigidity towards the other sex, it 45; "Von der psychischen Impotenz," Ephemeri- des luris Canonici (1955); "Welchen Einfluss hat does not necessarily follow that it brings die Homosexualitit auf die Ehen," Oesterreichi- with it or causes full and perpetual incapa- sches Archiv fir Kirchenrecht, XII (1961), 305- city of performing copulation or of bearing 337. 35 Cf. Causa Jurinen. seu Viennen. before S. C. children. Council - 28 iulii 1877; 15 dec. 1877; 23 martii 1878 (Thesaurus S.C.C., Vol. 136, pp. 406-409; p. 601; Vol. 137, pp. 124-131); Causa Colonien., 18 aug. 1906 (Thesaurus, Vol. 165, pp. 994-1009); 52Oesterle, "Welchen Einfluss hat die Homosexu- Causa Mechlinien., 17 feb. 1906 (Thesaurus, Vol. alitiit auf die Ehen," OesterreichischesArchiv fir 165, pp. 476 ss.). The Congregation of the Council Kirchenrecht, XII (1961), 325. always treated cases of impotence almost ex- 53S.R.R. Dec. XXXII (1940), dec. XV, pp. 141- clusively from the standpoint of the non-consum- 154. mation of the marriage. INVALIDITY OF MARRIAGE

(prevention of the marriage itself): there is course with the spouse); (2) because the no intention of entering a real marriage; homosexual not only does not permit the (2) exclusio fidelitatis (infidelity); (3) ex- exclusive right to marital intercourse, but clusio iuris ad coniugalem actum (the pre- often excludes it entirely. The conclusion is vention of the right to the marital act).' " that homosexuality is incompatible with the He attempts to prove the invalidity of mar- essence of marriage. riage on homosexual grounds 7 by stating According to canon 1086, anyone who that homosexuality is in its essence incom- externally manifests consent but inwardly patible with marriage: Even though the does not awaken the corresponding act of homosexuals may have the wish to break the will simulates consent. The contract of off their prior relationships, they often are marriage requires four elements: (1) the unable to do so, because they lack the will intention to conclude a true contract, (2) to make such a break, or they are unable the intention to bind oneself to the con- energetically to fight against their inclina- tract, (3) the physical and moral capacity to tions and, consequently, at the time of the bind oneself, and (4) the intention to fulfill 5 8 marriage they are lacking in good faith. the duties that are undertaken. How far The arguments that homosexuality is in- is the homosexual physically and, at least, compatible with marriage may be summed morally able to bind himself to the marriage up as follows: contract? No one can enter a valid contract 1. According to canons 1081 and 1086, who cannot dispose freely of the object of the homosexual could not have the will to the contract. It must be an object which is enter a true marriage; under the outward possible both physically and morally. No appearance of marriage he desires to con- one is held to the impossible, nor is he able 5 9 tinue his homosexual relationships. to oblige himself to it. This doctrine holds 2. On the basis of canons 1081 and 1086, even if the object is only relatively impos- the person before the marriage proposes to sible. sin against matrimonial fidelity, and this can We have already treated of the case sometimes be established by evidence before of nymphomania (coram Heard-supra), and after the marriage. where this doctrine is strengthened by a 3. On the basis of canon 1081, matri- favorable decision. We feel that an argu- monial consent is not had in the sense that ment can be drawn a pari (equally) for the man and woman reciprocally hand over homosexuals in the same classification as and receive forever the exclusive right (ius the nymphomaniac. Homosexuals are irre- in corpus) (the right over the body). sistibly drawn to actions against their nature. For these reasons the marriage is invalid: They are no longer masters of their own (1 ) because the homosexual is incapable, as actions in regard to a correct union as hus- a result of the homosexual relation, even if band and wife. This is a sickness of the will. he had the intention of giving true matri- A sick person can have full consciousness monial consent, of restraining himself from the homosexual relationship (often there 58 Ibid., p. 329. results a true impossibility of normal inter- 59 A. Vermeersch, Theologiae Moralis, Vol. II (Romae, Brugis, Parisiis, 1924), n. 411, p. 352; cf. I (ed. 56 Oesterle, "Welchen Einfluss ... " p. 305. G. Heinzl, Sutmma Theologiae Moralis, Vol. 67 Ibid., p. 328. 30, Innsbruck, 1952), n. 63, p. 65; n. 70, pp. 70 ss. 10 CATHOLIC LAWYER, SPRING 1964 of the situation. But he feels he is no longer (against nature). master of himself and is dominated by an It has been considered as commonly held interior force, invincibly compelled to com- that the constant canonical jurisprudence mit those acts which he reproves. The intel- concerning the bonum fidei is not vitiated by lect remains sufficiently sane; the delirium acts contrary to nature, but only by acts per exists only in the actions.6 The homosexual se apti ad prolis generationem (which be- is incapable for the duration of his life to cause of their very nature are appropriate bind himself to a natural use of marriage. in begetting children). But the Rota has This thinking is certainly in accord with the also held the contrary opinion (according definitions of the modern psychologists of a to Oesterle):65 sexual anomaly, i.e., a sexual anomaly Communis sententia est adulterio aequipari which follows a repetitive obsessional fan- sodomiam, in ordine ad ius tributum parti innocenti divertendi, a parte quae est in tasy, which leads to compulsive acts-an culpa. Cuius sententia ea adducitur ratio unresisted urge. quod, etiam per sodorniam, coniux carnem To this we might add the fact that the suan cum alio dividens perfecte frangat personal incapacity of the homosexual to fidem coniugii, quod eo tendit ut coniuges marry can be drawn not only from his lack fiant una caro. (The common opinion is is equal to adultery, relative to of intellectual and volitional activity' but that sodomy the right given to the innocent party to also from a direct inversion of nature, which separate from the party who is at fault. The never, or only with great difficulty, can be reason given for this opinion is that even cured. Such a person cannct hand over the through sodomy the spouse who shares his right of his body to his partner, or receive it, flesh with another perfectly breaks the faith if the contract is for life and exclusive, with of marriage, which strives to make the spouses one flesh.) ultimate reference to the procreation of Sodomy is therefore equal to adultery; the children.' -He is radically unfit for marriage; Rota apparently has not always held the he freely makes a contract which he cannot same opinion./; fulfill. The arguments of Oesterle for invalidity We shall not consider the arguments of are not without merit, especially in the light Oesterle concerning the bonum prolis and of modern psychiatry. The conclusion is bonum fidei (for the good of the offspring again that the personal incapacity of the and for the good of the faith).6 3 He treats homosexual, like that of the nymphomaniac, at great length the dubium (uncertainty) can create an inability to contract a valid created by the Rota in some recent deci- marriage. We may envision, therefore, cases sions,'!' whether or not there is the division of homosexuals who in regard to matrimo- of the flesh by sexual acts contra naturam nium in fieri have a personal incapacity to 66 Oesterle, art. cit., p. 332. 61 E.g., S.R.R. Dec. of 25 feb. 1941, Dec. XXXIII, 65S.R.R. Dec XXVII (1935) cora Massimi, 29 dec. XV (1941), p. 145; 16 iulii1943, S.R.R. Dec. maii 1935, dec. XLII, p. 358, n. 3. XXXV, dec. LVII (1943), 596-600. 66 Oesterle lists many authors on both sides of the 62 Oesterle, art. cit., p. 334. argument. Those who held that sodomy or homo- G3 Cf. Oesterle, art. cit., pp. 326 ss.; "De Relatione sexuality does not create the division of the flesh Homosexualitatis ad Matrimonium," Revista Es- base their argument upon the opinion of St. Al- pafiola de Derecho Canonico, X (1955), 41 ss. phonsus. Oesterle even calls ino question the 64 S.R.R. Dec. XXVII, dec. XLII (1935), 358; and source of this opinion, and the basis of the quota- coram Mattioli, n. 6141, Dec. 11, 1958. tion. Cf. "De Relatione ... ," pp. 54 ss., esp. p. 58. INVALIDITY OF MARRIAGE contract a true marriage; and in the case of new thinking in psychology and psychiatry; inatrimonium in facto often have, in addi- (2) define the homosexual, the sociopath, tion, a physical incapacity. the constitutionally immoral, etc.; (3) study the concept of error and fraud related Conclusion to sexual anomalies and marriage; (4) de- It must be admitted that this study of fine the concept of the constitutionally im- sexual anomalies in relation to the nullity of moral, the sexual psychopath, etc., and their marriage does not solve these complex prob- inability to fulfill the obligations of mar- lems. However, cases of this nature have riage; (5) determine that heterosexuality is been more readily accepted in tribunals in a condition of valid marriage; and (6) recent years. A study of recent Rotal juris- establish homosexuality and other sexual prudence and of the commentaries of the anomalies as diriment impediments of mar- o canonists reveals a growing perfection and riage.u refinement as the research of modern psychiatry and psychology becomes surer and 67 Recalls the words of Pope Pius Xl1- to the more appreciated. Cases of persons with Fourth International Convention of Catholic Doc- these disorders should be investigated in tors - in which he encourages the sciences of detail to determine the personal incapacity physiology and psychology and the studies of the mutual actions and reactions of physics and of the subjects to enter a true marriage. If morality, and in which he states that one may not found to be personally incapable, they reject a teaching because it is new. - September 29, should be judged radically unfit for mar- 1949: AAS, XLI (1949), 559 ss.; The Catholic riage. Mind, XLIII (1950), 250 ss. Along these lines Father Joseph Goodwine has Depending on the merits and the circum- made the following suggestions as revisions for stances of the cases, the judges at present canons 1081 and 1083: may follow not only the traditional Rotal Canon 1081, § 3: Inhabiles ad validum consensum praestandum, praeter quos expresse iure impedi- treatment of such cases based upon defects tos, stint: of intellect and will, but also the recent ap- n. 1. Qui carent usu rationis aut exercitio liberae proach based upon the personal incapacity voluntatis; n. 2. Qui tam deminuto vel tam immaturo usu of the subjects to make a contract which rationis inficiuntur, ut rectam aestimationem ma- they cannot fulfill. trimonii eiusque iurium et onerum efformare ne- Since the Code and the jurisprudence of queant; the Church for the past forty-five years have n. 3. Qui immoralitati, perversioni sexuali, aut pravis moribus tam addicti, ut nequeant onera ex not provided adequate tools to solve these finibus proprietatibusque matrimonii profluentia modern problems, we must look to other aut assumere aut adimplere. sources. The advances in thought and sys- Canon 1083, § 2: n. 2. Si persona iure habilis bona fide contrahat cuM persona immoralitati, aUt per- tems of modern psychology and psychiatry versioni sexuali, aut pravis moribus tam addicta ut and the other related sciences should chal- onera contractus fideliter adimplere nequeat. lenge us to reconsider cases from the aggre- (Canon 1081, §3: Besides those expressly impeded by law, they gate total of our expert are unqualified to give valid consent: past experience n. 1. who lack the use of reason or the exercise of together with a judicious application of the free will; present research findings of these sciences. n. 2. who are afflicted by so diminished or so im- mature use of It is obvious that further studies are nec- reason, that they cannot form a correct appreciation of marriage and of its rights and essary to assist the judges to: (1) examine duties; 10 CATHOLIC LAWYER, SPRING 1964

It is hoped that the new codification of that the person not only should have been law, now under consideration, will give prevented from entering marriage, but that serious thought to problems of this nature. once the contract was made there would be It is suggested that the new revision might a basis in law and nature to declare such a establish a permanent or temporary impedi- contract null and void. ment for such persons as those who have a These problems are beginning to repre- personal incapacity to marry - a temporary sent a pressure and a challenge to us to ex- impediment, for example, dependent upon amine and clarify what is essential in the diagnosis and upon psychiatric therapy, be- law. We must also search out what is de- fore such a person would be allowed to pendent on the circumstances of our times. contract marriage. With reverence we must preserve the law On the other hand, it is hoped that the and the principles of the law of the past. At new code of law will clearly define the the same time, we must advance the cause norms of actions, based on juridical con- of jurisprudence in our day and for the cepts which will give the jurist a basis to future, evaluating with prudence what is adjudicate the validity or invalidity of such new, treating with charity what seems an marriages, e.g., the circumstances before innovation. and after the marriage which would prove The task of jurisprudence and the work of ecclesiastical tribunals are certainly in accord with, and necessary in, the field of pastoral work. Even the law must have a n. 3. who are so addicted to immorality, sexual pastoral outlook. perversion, or depraved morals, that they cannot Canonical jurisprudence is a living sci- either assume or fulfill the duties flowing from the ends and properties of marriage. ence and it must not only hold sacred what Canon 1083, § 2, n. 2. If a legitimately qualified is the past, but also keep abreast of the person contracts in good faith with a person so new dimensions of thought. We must face addicted to immorality, sexual perversion, or depraved morals that he cannot fulfill faithfully the the difficulties and the exigencies of our duties of the contract.) times.