Experts in Church Courts: A Role Not Sacred John L. Young, MD, and Ezra E. H. Griffith, MD The increasing number of marriage annulments granted by the Catholic Church in recent years is gaining considerable public attention and arousing some controversy. I Members of the church's clergy2 and hierarchy3 have also expressed concern. This is not surprising in view of the actual data, as shown in Figure 1. Such data give the appearance of a decrease in the emphasis being placed on the permanence of marriage, a well-known church doctrine. Moreover, it is a significant change for some eight million divorced American Catholics that divorce, especially when combined with remar­ riage, might not mean separation from the church.4 Some have attributed the striking increase to the rising divorce rate; others to the renewal in church life associated with the Second Vatican Council in the 1960s. 5 This renewal encouraged an enrichment in under­ standing of marriage as well as a flourishing ministry to the increasing number of divorced Catholics. In addition, a much earlier and less widely known trend is of more fundamental importance. Shortly after World War II, the Sacred Roman Rota, the church's court of final resort in marriage cases, began to emphasize the psychologic requirements for a valid marriage6 and to encourage the use of psychiatric experts in the hearing of marriage cases. 7 The public's increasing attention to the phenomenon of growing annul­ ment rates stands in contrast to the psychiatric literature's virtual silence on the expert's role in this process. Thus, there is a need for this significant use of professional expertise to become both more widely known and more carefully appreciated. Accordingly, we report here on pertinent church law literature and on our study of a church court in the northeast. This study included discussion with its officials and experts, participation in its work­ shops, and observation of its annulment hearings. Our purpose is to focus forensic psychiatric attention on the work of church courts and the role of their expert consultants, in support of both the quality of this work and the development of this role. Canon Law: General Background Catholic marriage annulment proceedings occur in a court or tribunal functioning within each diocese, a region of variable size under the admin- Dr. Young is an assistant professor of psychiatry and Dr. Griffith is an associate professor of psychiatry, Yale University School of Medicine. New Haven, CT. Bull Am Acad Psychiatry Law, Vol. 13, No.4, 1985 359 Young and Griffith 00,000 40,000 2 0 ,000 Figure I. Annulments granted in the U.S., by year. as reported in Annuarium Sialislicum Ecc/esiae, Rome. Typis Polyglottis Vatican is. istration of a local bishop. Such courts operate under the legal system known as Canon Law which originated from Roman Law. 8 The intertwining of these two legal systems dates back to the christianization of the Roman Empire. The relationship became formalized in the course of the thirteenth century renaissance in Western Europe which brought about a revival of interest in Roman Law, particularly in universities influenced by the Catholic Church.9 An important divergence in the course of legal developments ultimately took place. 10 In England, legal development proceeded on the basis of court 380 Bull Am Acad Psychiatry Law, Vol. 13, No.4, 1985 Experts in Church Courts decisions apart from university influences to form the Common Law tradition. Meanwhile in the rest of Europe, under powerful influences such as Thomas Aquinas, II Roman Law was reinstated and integrated into the increasingly formal development of the Church's system of Canon Law. A series of compilations and revisions eventually crystallized in 1917 as the 13 Code of Canon Law. 12 A revised code took effect in late 1983. ,14 In fact, the bulk of American tribunals' casework is concerned with petitions for marriage annulments. The Roman Catholic Church's tradition recognizes any marriage between two Christians, once consummated, as having a sacramental dimension. This transcendent religious character of the marriage union includes its perman.ence, whatever may develop during its course, until the death of either party. Resting on a firm biblical basis, this teaching has been consistently expressed in church law. Accordingly, a baptized couple, once validly married, remain so in the eyes of the church, even if they separate and obtain a civil divorce. Within this framework, the only recourse to this religious impasse for such a couple is a finding that, although their marriage was valid under civil law, it never achieved the sacramental dimension which church law contemplates. Such a finding, made by a diocesan tribunal, is commonly called an annulment. Annulment Court Proceedings: A Sample Summary Although Canon Law structures and regulates the activities of each diocesan tribunal, it leaves more room for procedural variation than is the case among secular courts. Common to all tribunals, however, is the avoidance of any potential conflict with secular courts by requiring the completion of civil divorce proceedings before considering an application for annulment. The following is a summary of the major procedural steps followed by the court with which we have worked. The petitioner seeking an annulment submits in writing a personal and marital history, including reasons supporting the view that the marriage should be declared null. He/she also identifies individuals who can cor­ roborate the history and might be willing to join the case as witnesses. If its initial impression is favorable, the tribunal solicits the corroborating infor­ mation, attempts to contact the former spouse for additional data, and appoints an instructor to meet with the petitioner and the witnesses in order to prepare the case for presentation at the tribunal hearing. Present at the hearings we observed were a judge, an instructor, a defender of the bond (whose role is what the title suggests), and a psychiatrist-expert. The instructor presented the evidence, then responded to questions from the other three individuals. The psychiatrist then commented on the case and concluded with DSM-III diagnostic formulations and family structural analyses. After his commentary, the expert received questions from the BuU Am Acad Psychiatry Law, Vol. 13, No.4, 1985 381 Young and Griffith three officers of the court. They in turn made observations about the material presented and generally discussed the families and the marriage. In each case, the judge and the defender of the bond later wrote separate reports, the former including the final decision, or sentence. A conclusion in favor of nullity automatically takes the case to a second tribunal for review. If the second decision favors nullity, the case is ordinarily concluded. However, either the defender of the bond or the respondent may appeal. If the reviewing court finds against nullity, the petitioner may appeal. These appeals are to the Roman Rota. Foundations of Tribunal Proceedings Canon Law requires the judge to reach moral certitude in regard to the sentence given, doing so from what is presented to the court as evaluated according to his own conscience. According to a landmark statement15 of Pope Pius XII, this moral certitude lies between the two extremes of mere probability and an absolute certainty which excludes all possible doubt. The Pope noted that there are times when this moral certainty is based on a series of indications, each one insufficient as a basis for certainty, but together leading to moral certitude. He explained that this was not through the mere accumulation of probabilities, but rather through a convergence back to a common basis in objective reality. The Pope added that such moral certainty was characteristic of annulment proceedings. Rules of Evidence The judge proceeds to the required moral certitude through the accumulation of proofs, which the 1983 code organizes into six typeS.16 These are declarations by the parties to the case, documents, testimony of witnesses, experts, direct access and inspection by the judge, and presumptions. Each of these categories can be relevant for the resolution of marriage cases. Because the public good is at stake, declarations by the parties are subject to corroboration by other evidence, including witnesses to their credibility. Public documents such as civil and church records, properly drawn up, are accepted as proof of what they contain, unless there is clear contrary evidence. Private documents, such as letters, diaries, credit card receipts, and the like, carry more variable weights and generally require corrobora­ tion. In view of the need to evaluate the parties' declarations, witnesses play a crucial role. The adage, Testis unus testis nullus. ("One witness is no witness. "), comes into play here. It is up to the judge to weigh their moral quality, reliability, consistency, and relevance. The Expert's Role Our discussions and observations affirmed the ex­ pert's task as the application of specialized knowledge to the facts as presented, in order to assist the judge in concluding whether the evidence presented sufficed to prove nullity of the marriage under review. Canon 382 Bull Am Acad Psychiatry Law, Vol. 13, No.4, 1985 Experts in Church Courts 1579 of the newly revised code states clearly that the judge must weigh the expert's conclusions with other relevant data and spell out in his decision the reasons for their acceptance or rejection. Moreover, several key decisions by the Roman Rota from the 1950s warn judges against departure from expert testimony in the absence of weighty contrary evidence.7 The tribunal judge acts as the peritus peritorum or experts' expert, 17 generating the decision on whether the evidence presented and discussed is satisfactory for a declaration of nullity on the basis of one of the proper canonical grounds.