Article VI: On Incest

73. Incest is intercourse with blood relatives or relatives by affinity within the degrees prohibited by the Church for marriage. Incest is a grave sin, and differs in species from other sins of lust; for it is not only against chastity but also against the piety and reverence which the very relatives mutually owe to one another. Billuart, diss. 6, a. 6; St. Thomas, 2.2, q. 154, a. 9.

74. Note. The prohibited degrees are up to and including the fourth degree in consanguinity and affinity arising from marriage, whether ratified or consummated; up to and including the second degree in affinity arising from illicit intercourse. Thus from Trent, sess. 24, c. 4, de Ref. Matr.

75. Do not only intercourse, but also all immodest touches among relatives put on the nature of incest, necessarily to be explained in confession?

R. Affirmatively. For those acts also are opposed to the reverence owed to relatives. L. 453, 469; Billuart, l. c., a. 6, 9. Cf. here nn. 31, 103.

76. Note. Billuart, diss. 6, art. 6, vers. fin., speaking of sodomitic acts, judges it not improbable that acts of this kind do not put on the nature of incest in degrees prohibited only by positive law. The reason is that "positive law prohibits only intercourse between persons between whom it prohibits marriage to be entered. For these degrees of consanguinity and affinity are constituted by the Church in order to diriment marriage; and thus they do not seem to affect persons of the same sex between whom marriage cannot be entered." And ibid., a. 9, speaking of sin against nature, he says that if someone knows a blood relative in the preposterous vessel, there is had the malice of incest; nevertheless it is not strictly and properly incest, because there is not made a commingling of seeds, from which affinity would be contracted... "wherefore, if incest were reserved, these things would not be reserved." Cf. Lugo, de Poenit., d. 16, n. 344-350, who in n. 349 teaches altogether the contrary as regards a sin diverse in species to be manifested in confession, "because if someone basely touches a blood relative in the third or fourth degree, he ought to explain in confession the circumstance of the person because of the specific malice which that touch participates in, diverse from that circumstance of consanguinity... Therefore a fortiori, if a man has had sodomitic intercourse with a blood relative in the third or fourth degree, he ought to explain the circumstance of kinship because of the malice diverse in species. For it would be astonishing that touching the hand of a blood relative adds a malice diverse in species, but the touch so obscene and base which is found in the sin of sodomy would not have a malice diverse in species from the circumstance of kinship. Whence we have at least... that that circumstance must be explained in sodomitic intercourse of a male with a blood relative in the third or fourth degree. Yet from this it again seems proved that it must also be explained in the same sin between two males related by blood in the same degree: both because among the same men other base touches seem to have a special malice to be declared... and also because if sodomy with a blood relative has special malice by reason of blood, why will it not also have special malice between two blood relatives, since there is the same conjunction of blood and debt of observance between them? Therefore on account of these things it seems more true that that circumstance must altogether be explained in this sin, whether it is with a blood relative, or with an affine, or with a spiritual or legal relative; for the same reason proceeds concerning all."

77. Is incest present among those who are bound by the impediment of public honesty?

R. Some affirm, and Sporer, 613, hands it down as certain. But at least probably it must be denied. The reason is that incest is among cognates and affines. But among those who are bound by the impediment of public honesty, there is neither cognation nor affinity strictly such. Therefore. L., l. 6, n. 469.

78. Is incest with a blood relative the same in species as incest with an affine; and likewise are all incests, as regards degrees, of the same species?

R. "It is a probable opinion that all incests committed whether among blood relatives or among affines, and in whatever degree and line, are of the same species, and therefore that diversity of conjunctions and degrees does not have to be necessarily explained in confession, so that it suffices to say: I committed incest... The reason... is that in all those things there is one and the same species and deformity against the same virtue of piety and reverence owed to relatives; for that diversity of the conjunction of consanguinity and affinity and of diverse degrees brings nothing else except a greater or lesser conjunction; but more and less do not vary the species even in a moral matter, unless it is proved from another source to be against a particular virtue or against a special dictate of reason, which is difficult to happen here. Similarly, that intercourse in such a conjunction and degree is sometimes illicit from the intrinsic nature of the thing, as in the first degree of consanguinity, but sometimes only from the precept of the Church, as in all the rest: from this, however, nothing diverse in species is necessarily inferred, for the precept of a superior commanding something places the matter commanded in the same species of virtue by reason of which, or from the motive of which, he commands it. But now the Church prohibits congress in those conjunctions and degrees on account of the same virtue of piety and reverence owed to relatives; therefore the transgression remains of the same species." Sporer, 609. - St. Thomas, 2.2, q. 154, a. 9; Cajetan, ibid.; Billuart, l. c.; Suarez, de Poenit., D. 22, S. 3, n. 12; S. 4, n. 7; Lugo, de Poenit., D. 16, n. 313.

St. Alphonsus, as regards the first question, whether incest with a blood relative differs in species from incest with an affine, responds: "Each opinion is probable. The first, with Croix, Cajetan, Lugo, Diana, from St. Thomas, denies, because in each case one sins equally against the reverence owed to relatives. The second opinion, with Vasquez, Dic., and others, affirms. The reason of these is that the reverence owed on account of conjunction of blood seems totally diverse from that owed on account of conjunction of affinity." L. 449. - As regards the other question, whether all incests as regards degrees are of the same species, he responds: "It is affirmed sufficiently probably, except only the first degree of consanguinity in the direct line, with Cajetan, Soto, Lugo, Bonacina, etc., which they infer from St. Thomas." L. 448, 449, and l. 6, n. 469, 470. But the same exception has force for the first degree of affinity in the direct line. For the reverence owed to parents and children is not of the same account as the reverence owed to other blood relatives and affines. L., l. 6, n. 469, 470.

79. Is incest among spiritual and legal cognates of a diverse species from that among blood relatives and affines?

R. "Absolutely it must be affirmed with the Salmanticenses and St. Thomas, who in 2.2, q. 154, a. 10, ad 2, teaches that by intercourse among spiritual relatives sacrilege is committed in the manner of incest. But must the degree of cognation then be explained? The Salmanticenses affirm; but La-Croix probably denies. Likewise incest among legal cognates, namely by reason of adoption, is of a diverse species from the others enumerated and must be explained." L. 450. - "It must be confessed that it [incest among legal cognates] is properly incest; whence there is no reason why we should say it differs in species from incest among blood relatives and natural affines... Whence... it will not be necessary to explain the difference of legal from natural cognation... But the circumstance of spiritual cognation is diverse in species from incest, because although it contains some malice of incest... nevertheless beyond this it adds the malice of sacrilege." Lugo, de Poenit., D. 16, n. 327 seqq. - But Sporer, n. 612, 613, has these things: "He who sins carnally with a person joined by legal cognation (of which there is a fourfold degree: 1. between the adopting person and the adopted person and his or her descendants; 2. between the adopted and the legitimate children of the adopter; 3. between the wife of the adopted and the adopter himself; 4. between the wife of the adopter and the adopted) without doubt commits a special sin of incest, necessarily to be confessed as such, since among the same persons, on account of the reverence owed to relatives so often mentioned, the Church constitutes an impediment diriment of marriage. But whether this incest must be explained as a sin distinct from the other incests mentioned above, and whether that diversity of degrees or persons just mentioned must also be explained, again it is more probable and safer that it must, and sufficiently probable that not. - But he who sins with a person joined by spiritual cognation contracted from the Sacrament of Baptism and Confirmation (of which there is a twofold degree or species: spiritual paternity between the one baptizing and confirming, likewise between sponsors on the one side and the baptized and confirmed on the other side; and spiritual compaternity between the same one baptizing and confirming, and sponsors on one side, and the parents of the baptized or confirmed on the other side; for spiritual fraternity between the baptized and confirmed, and the children of the one baptizing or of the sponsors, has fallen into disuse) altogether commits incest distinct from all the aforesaid in consanguinity, affinity, or legal cognation; and therefore it must be specially explained in confession, because it adds a special malice of irreverence to the sacrament, by reason of which it is reduced to a certain genus of sacrilege. - But whether it must also be explained whether it was done from the Sacrament of Baptism or Confirmation; likewise whether in paternity or compaternity: it is most probable that not, because in all these things there is the same deformity, not much graver or lighter." - Thus also Billuart, Diss. 6, art. 6. But Cajetan, on 2.2, q. 154, a. 9, says: "To the second objection concerning spiritual and legal cognation, it is said that because such a conjunction is not ordered to consanguinity as its proper and proximate end, but according to a certain assimilation, therefore the violation of it is metaphorically called incest."

80. Must a confessor having relations with a spiritual daughter explain this in confession?

R. More probably, negatively. The reason is "because it is not incest, since no cognation intervenes between them; nor is it sacrilege (understand as regards this circumstance), since no injury is inflicted on the sacrament. Yet Elbel, l. c., with Henno, rightly observes that a parish priest sinning with such a penitent also sins against justice, since from justice he is bound to feed his sheep, from Trent, not only by word but also by example." L. 451; Billuart, Diss. 6, art. 7. Some say the same proportionately about a guardian toward a ward and about all to whom the care of minors has been entrusted. But Billuart, Diss. 6, art. 2, App. 1, concerning the circumstance of tutor or curator, says only that it "seems a notably aggravating circumstance." Lugo, de Poenit., D. 16, S. 6, Sect. 3.

81. Do relatives, after a dispensation has been obtained for contracting marriage, commit incest if they fornicate before marriage?

R. There is a twofold opinion: St. Alphonsus, 452, holds each probable. The reason of the denying opinion is that, when the special repugnance of marriage ceases, consequently the special repugnance of fornication ceases; for if this remained, the marriage itself would be impeded. The reason of the affirming opinion is that the dispensation removes only the impediment diriment of marriage, not the conjunction.

82. What are the penalties against incestuous persons?

R. The penalty for incest with blood relatives of a spouse in the first and second degree, from Canon Law, is privation of the right of asking the debt. From the Italian Penal Code, art. 335, 345 seqq.; French Penal Code, l. 3, art. 333, 334, 335, the penalty is of fine, prison, reclusion, forced labors.