Doubt X: On abduction

I speak of rape, as it is a species of Lust. It is defined, attending only to Canonical law: It is the violent abduction, or carrying away, of a woman, or of an honest person, from place to place, for the cause of lust. Thus it is defined also by D. Bonaventure in spec. animae, cap. 3. Three things therefore are required for rape. First, abduction; second, violence; third, that it be done for the cause of lust.

And so this abduction must be from place to place, for the cause of ravishing; for if you lead her out from a public open place, and take her through a few steps into a secret place, so that he may sin with her more conveniently, it will be fornication. So Clarus, lib. V sent. § Raptus; and Bertrand, lib. VI consil. 39; Fagundez, lib. VI, cap. 10, num. 2.

For incurring the penalties of the Council of Trent, sess. XXIIU, cap. 6 — as Sanchez notes, lib. VII de matrimonio d. 13, num. 7 — it is not necessary to have conducted the ravished woman to the destined place, but one incurs them at once, as soon as she was ravished.

It is called violent, that is, injurious either to the woman herself only, or to her parents and guardians, or to those who take the place of parents, or to the betrothed or husband, if she is betrothed or married. So Toledo, lib. VII, cap. 17; Fagundez, num. 3. It is also injurious and involuntary not only if done by force, but also if by guile or fraud; for these are equivalent to violence, Leg. un. § siquidem, vers. poenas autem. Leg. de raptu virginum. So commonly the Doctors with Sanchez, lib. VII de matrim. d. 12. Likewise if you abduct her with feigned promises. So Sanchez, loc. cit. num. 6; Fagundez, num. 3.

But if she consented with him, it will be rape only with respect to the parents, not with respect to her. And so if she is of her own right (sui iuris), it will not be rape. So Sanchez, num. 10; Clarus, lib. V sent. § raptus.

It is called for the cause of lust. Note, however, that the civil law imposes the penalties for rape done for the cause of lust, and of marriage; but whether the Tridentine does so for the mere liberty of marriage seems more probable. See Sanchez, lib. VII de matrim. d. 13; Farinaccius, tom. IV, quaest. 145; Salsedus on the Practica of Bernardus; Diaz, cap. 78; Rodriguez, tom. II sum. cap. 213; Fagundez, lib. VI, cap. 10, num. 4. Wherefore if anyone ravished a virgin for the cause of lust, he can validly contract marriage by reason of the Council of Trent, as many teach with Diana, p. 3, tract. 4, resol. 261; Sanchez, tom. II, lib. VII, disp. 13.

Hence you have that the Council punishes every rape of a woman, even one dishonest, although such rape be ordered to marriage.

The civil law indeed punishes with the ordinary penalty the rape of the honest woman only; yet if the woman be a married harlot, and both she and her husband resist, the rape is punished by the ordinary penalty of death. So Farinaccius, num. 177; Sanchez, lib. VII de matrim. d. 12, num. 23. The ordinary penalty of rape is death, leg. 1 C. de raptu virginibus; the same penalty is imposed on accomplices, helpers, etc. Likewise their goods are published (confiscated). See Farinaccius, quaest. cit. num. 7.

By Canonical law they are excommunicated, can. si quis virginem, q. 2, where: If anyone shall have ravished a virgin or a widow without marrying her, with those favoring him, let him be anathema — where excommunication is not imposed ipso facto, but to be incurred, as Sanchez learnedly notes, lib. VII de matrim. d. 17, num. 2; Sylvester, verb. luxuria, quaest. 6; and others with Fagundez, lib. VI, cap. 10, num. 11.

The reason is that the words Anathema sit — let him be excommunicated — never signify a sentence latae sententiae but one to be incurred, except in the matter of heresy and in definitions of faith in Councils, because there it is gathered from other texts that it is imposed by these words: Excommunicatio ipso facto, as Sanchez proves, num. 1.

By Canonical law, the Council of Trent, sess. XXIIU de reformat. cap. 6, punishes ravishers and their helpers and abettors with excommunication ipso facto and by law, and with perpetual infamy, and renders them incapable of contracting validly with the ravished woman as long as she shall be under their power and not established in a free place. Moreover it declares them incapable of every dignity.

And so the law corrects: Si quis virginem; for it imposes excommunication ipso facto, and invalidates the marriage which there was valid.

It can happen that a woman rape a man; but this rape is subject to the arbitrary penalties of the judge, as Clarus warns, lib. V sent. § Raptus; Sanchez, lib. VII de matrim. d. 12, num. 25. For since this happens most rarely, it is not defined by the laws, which provide for ordinary cases, not for the rarest. But if a woman rape another woman for lust, many teach, cited by Fagundez, num. 8, that she is to be punished by the ordinary penalty of the law; but others decree an arbitrary penalty.

But if anyone should ravish a boy for lust, without doubt he is to be chastised with the penalty of death. So Clarus, num. 32; Farra, quaest. 145; Fagundez, num. 9; and others cited by these.

You ask whether it is rape if the ravished woman consents, and the parents refuse; or contrariwise.

It is answered briefly that it is rape in either case: if the woman is under another's power and assents, or if the parents assent and she herself refuses. See Fagundez, cap. 11. Nevertheless, if she herself assents, the marriage will be valid, as Diana says with Sanchez above; Filliucius, tom. I, Tract. 10, part. 2, cap. 8, num. 165.

The ravisher, however, will not be punished with the penalties of the Council of Trent in their whole rigor if the woman consents, the parents being ignorant, in whose power she is: the reason is that she is mistress of her own body. So Sanchez, lib. VII de matrim. d. 13, num. 13; Farinaccius, num. 124, quaest. cit.

But if the parents refuse, it is commonly taught that he is to be punished with the whole rigor: but Sanchez, num. 13, alone denies it.