Article IV: On Abduction

61. Raptus can be taken in two ways. First, it can be taken insofar as it is an impediment diriment of marriage, and is: the violent abduction of any woman from a safe place into another, where she is detained under the power of the abductor, for the sake of entering marriage. In the other way it is a species of lust; and it is the abduction of any person, whether male or female, whether virgin or corrupted, whether married or unmarried, from place to place, with violence brought either upon the one abducted or upon those under whose power the person is, namely parents or guardians or husband, but not if they are brothers and the woman is of her own right, for the sake of fulfilling lust. Wherefore in the first way a person is abducted for the sake of contracting marriage; but in the other way for the sake of lust. Concerning raptus in the first way there is speech in the treatise on Marriage; here we treat of raptus in the second way. - Moreover it is clear how raptus taken thus differs from stuprum. For stuprum has place only with an unwilling virgin, but raptus with any person; stuprum involves only violence or fraud, but raptus also abduction from place to place; stuprum brings violence only upon the virgin, raptus upon the person abducted or those under whose power the abducted person is, or even both. "Whence you see that raptus of a virgin, once the base effect has followed, differs from stuprum only very accidentally." Sporer, de Matr., 603. "If, however, a woman should depart willingly with her lover, the parents not knowing, it will not properly be raptus, but flight, not adding a malice distinct in species from fornication." - L. 443. Therefore the proper malice of raptus consists in the injury which is inflicted in violent abduction for the sake of lust. Wherefore as stuprum perfectly such, so raptus, besides the sin of lust, contains a sin of injustice; but in raptus that injustice is against both the person herself, who is violently abducted, and also the parents or any others under whose power that person is placed. Here it must be noted that by raptus even of one willing the right of paternal power is violated, but not by the defloration of the same, since as regards the use of her own body she is not subject to her parents. - Schmalzgrueber, l. 5, p. 2, t. 16, de Adulteriis, etc., Sect. II, de Stupro, n. 19; St. Thomas, 2.2, q. 154, a. 7; L. 444.

62. Note. Billuart, diss. 6, art. 4, par. 1, has these things about flight: "Flight can be reduced to raptus, because although it is done without violence, nevertheless it is not done without injury to parents, insofar as especially girls are committed to their custody by nature and law for a definite time, regularly until the twenty-fifth year of age, by which they become of full age, and beyond which the abduction of a girl voluntarily consenting, even with parents resisting, must no longer be called raptus, either properly or improperly, because then injury is done to no one."

63. What ought a woman oppressed by force to do, so that she may be immune from sin?

R. 1. She must guard against inwardly assenting to pleasure; otherwise she sins mortally, although force is externally brought upon her. - 2. She must also defend herself externally as much as she usefully and reasonably ought; otherwise she is already judged to consent. But whether she is also bound to cry out, several affirm; but others very probably deny, if there would be danger of notable harm, whether of infamy or of excessive shame, because then, if she already resists otherwise as much as she can, she is not bound with so great inconvenience to herself to repel force. Except if there is present a proximate danger of consenting. L. 430.

But in the supposed case whether it is lawful to kill the invader of modesty, Bishop Bouvier denies, but others commonly affirm. The reason is that if this is lawful for protecting honor and resources, much more must it be said to be lawful for protecting modesty, when no other remedy is at hand. Lugo, Roncaglia, etc., observe that it will be lawful for a girl not only while she is actually being violently touched by another, but also immediately after, to strike him with slaps, fists, a stick, and even non-dangerous blows. The reason is that unless in such a way she shows her constancy and displeasure, he will not easily depart. Hence always, if this is not done for vengeance, it is not only to be permitted, but also to be counseled to the woman, so that the other may at least come to his senses and not solicit her another time. L. 386.

Finally, whether a woman oppressed by force is bound rather to suffer death, by repelling with force the invader of modesty, than to permit intercourse, there is a twofold opinion. "The first says that, although she can, nevertheless a woman is not bound to suffer death, but can then bear herself permissively while intercourse occurs, provided she resists positively by the will and the danger of consent is absent; because, as they say, that permission is not then moral cooperation, but only material, and therefore is sufficiently excused on account of danger of death. The second teaches that this is altogether illicit, because, since the woman can impede intercourse, if induced by fear she rests, then her cooperation becomes truly moral and voluntary; for in the woman that rest in intercourse is reckoned as action. Yet this reason does not convince, because that rest of the woman truly cannot be called action, since it is in no way positive; therefore the first opinion, speculatively speaking, does not seem to lack its probability. Nevertheless it must not be denied that the second opinion is altogether to be recommended in practice, at least on account of the danger of consent which can easily be present in that permission." L. 368, 430, 433. - Hence above in R. 2 it was said: "as much as she usefully can and reasonably ought, certainly without danger of her life or reputation; for then she is not bound to kill, mutilate, or wound the invader, even though she could by right." Sporer, 605; Elbel, de Act. hum., Conf. 2, Cas. 1.

64. Can a girl violently oppressed lawfully expel at once the semen of the man that has been injected, lest she conceive?

R. Negatively. The reason is that this expulsion of semen now existing in the womb is per se and directly against generation from the positive action itself of the woman. But if the semen had not yet been injected into the womb, "she could lawfully turn herself and interrupt coitus, although the semen of the man would have to be poured forth, because this would happen per accidens and on account of the malice of the man alone." L. 394 and l. 6, n. 954. - Nevertheless there are not lacking authors who permit that, if it is done immediately after intercourse, before conception has been made, because, they say, the semen then bears itself in the manner of an unjust aggressor, whom it is lawful to repel. But if it is lawful immediately after intercourse, before conception is made, to expel semen by washing or by another means, as St. Alphonsus excellently says in the cited n. 394, the same would be lawful afterwards, which would be altogether illicit. Is not the fetus already conceived then more the aggressor, the continuer of the aggression? Besides, how can semen be expelled after it has been received, before conception takes place? For "the womb of a woman is closed as soon as it receives the semen." L. 394. - But observe here that generation is not impeded by simple washing, if it is done at least some hours after intercourse.

65. What are the penalties against abductors?

R. The penalties are of detention, imprisonment, forced labors, according to various cases, Italian Penal Code, art. 340-344; French Penal Code, l. 3, art. 354-357. But as regards Canon Law, from Trent, sess. 24, c. 6, de Ref. Matr., the abductor is bound "whether he has married her or has not married her, decently to endow the one abducted according to the judgment of the judge," unless she is a prostitute or of evil reputation; and this is not so much a penalty as just compensation. But as regards penalties properly so called, whether he who abducts a woman for the sake of lust, or for another evil end than marriage, if he does not incur the impediment, at least incurs the other penalties established by Trent, sess. 24, c. 6, de Ref. Matr., some affirm, because the Tridentine in that special chapter speaks generally; but others more truly deny, because Trent intended only to favor the liberty of marriage. For the rest, except excommunication, the other penalties established there are ferendae sententiae. Scavini, Milan 1874, l. 3, n. 808.