Article — Koch–Preuss
Article 3: The Duty of Restitution Arising From Fornication and Adultery
It is impossible to make restitution for lost bodily integrity (virginity) because the damage done is beyond repair. But reparation can and must be made for material injury arising from illicit cohabitation.
- If both parties have freely committed fornication together, neither has a valid claim to restitution, because “scienti et volenti non fit iniuria.”1 If a woman has been dishonored by means of fraud, trickery, violence, or grave threats of cruelty, mutilation or death, she is en- titled to full reparation of the damage inflicted upon her reputation, station, or fortune, and eventually to compensation for the injury to her health resulting from ill-treatment or excitement.2 A man who has seduced an honorable woman, especially if she was a virgin, is bound under pain of mortal sin to employ all the means at his command to lead her back to the path of virtue. Such means are: advice, warning, a good example, prayer, and, eventually, marriage. If a secret sin of unchastity committed by a woman has become public through the fault of the seducer, the latter must repair the damage resulting to her.3 Equity requires that an apology be made to the injured parents, if they are not themselves to blame for the sin of their daughter; but there is no strict obligation to this effect.4
1 Cfr. H. Busembaum, S. J., Medulla Theologiae Moralis, III, tr. 5, c. 2, dub. 6, a. 4: “Restitution is not binding precisely for virginity alone. Hence, if the defloration remained secret, or did not prevent her from marrying equally advantageously, the deflowerer is bound to nothing. Likewise he is bound to nothing if he deflowered one who consented, without force, fraud, or promise of marriage, because no injury was done. If he bent a virgin by importunate entreaties, he is bound to restore nothing, because she still consented freely, unless perhaps the entreaties were such as to be equivalent to force and coercion: for example, if they were joined with threats or reverential fear, e. g., if he was her master or a man of great authority.”—Cfr. St. Alphonsus, Theol. Mor., l. IV, n. 642, dub. 2.
2 St. Alphonsus, Theol. Mor., l. III, n. 641: “If anyone violates [a virgin] by force, threats, or fraud, he is bound to repair for both the girl and her parents all damages to honor and fortune. Hence he is bound to increase her dowry so that the girl may marry equally well as if she had not been violated. . . . But if he himself wished to marry her, while the girl rejected the marriage, he is bound to endow her fully. . . . And the same must be said even in doubt whether the girl had previously been corrupted by another or not, because she is presumed intact until the contrary is certainly proved. Likewise, if a man has intercourse with a secretly corrupted girl or with a widow of honorable reputation and, through his unjust intercourse, they suffer loss of reputation; but otherwise, if the intercourse remained entirely secret, for then he would be bound to nothing.” Ibid., n. 642, dub. 1: “What if a virgin unjustly violated afterwards marries equally well? The answer is that the violator is bound to nothing unless, before the marriage, a dowry was awarded to the girl by judgment or agreement; for otherwise he is bound to furnish nothing: not for the violation of virginity, which is irreparable, nor for damage, since none followed. . . . If the woman is ill-treated by her husband because of the known defect, the deflowerer is bound to compensate the woman.”—Cfr. Ex. XXII, 16 sq.; Deut. XXII, 25; Ehrlich, Randglossen zur hebr. Bibel, II, 316.
3 St. Alphonsus, l. c.: “If the man afterwards defamed the girl by making the deed public, then in justice he is bound to make good to the girl and her parents every damage arising from the defamation, as Laymann and the Salmanticenses rightly observe.”
4 Ibid.: “If the virgin freely consents, it is commonly held that the deflowerer is bound to restore nothing to her. But the first doubt arises whether in that case he is bound to make satisfaction for the injury to the girl’s parents. There are two probable opinions. The first denies it. . . . The reason is that if the girl herself, since she is mistress of her own body, inflicts no injury on her father when she consents to defloration in exercise of her right, much less does the deflowerer inflict one. She alone will sin, and consequently the violator also, against the filial duty owed to her father, and also against obedience if she had an express prohibition from her father concerning such a crime, as Lugo says. The second opinion, however, affirms it. And St. Thomas holds the same (S. Th., 2a 2ae, qu. 154, art. 6, ad 3), who says: ‘The [deflowerer] inflicts injury upon the girl’s father, and hence according to the law he is liable to a penalty to him,’ namely from Deut. XXII, 28 sq., where deflowerers, if they had been brought to judgment, were bound to pay the girl’s father fifty shekels. Yet this, St. Antoninus rightly observes, has place only after the judgment of a judge. Moreover, the aforesaid second opinion holds that both the girl and her deflowerer sin in two ways, namely against chastity and justice; and that the deflowerer is bound to restore to the father the honor taken away through some sign of honor, a request for pardon, or something similar, unless it is presumed that the father would not want such satisfaction. The second doubt arises whether the violator of a consenting girl is bound to restore to her parents the loss of property coming upon them because of the dowry which they must increase in order to settle their daughter in marriage. Azor and Corduba and others affirm it. But Scotus, Suarez, Sanchez, Lessius, Lugo, etc., very commonly deny it. The reason is that, just as the girl, since she can freely reject marriage, does not injure her parents if, by consenting to her defloration, she renders herself less fit for it, so neither does the deflowerer injure them by violating her with her consent.” (Ed. Gaudé, II, 116).
a) Restitution is of strict obligation in cases of criminal assault or rape (stuprum), and by this term moralists understand not only an act of violence which the assaulted person was unable to ward off, but in which she was given no other choice but to suffer violation or risk bodily ill-treatment, mutilation, or perhaps even death.
b) The claim of having been “seduced” does not in itself entitle a woman to restitution. Seduction is not necessarily accomplished in one act or in a single moment in which it would be possible to deprive the will of its freedom. It usually extends over some time, in which reason and conscience have a chance to assert their influence and put a chaste and conscientious woman on her guard. Probably most women who pretend to have been seduced were willing victims.6 At any rate, in its subtler form, seduction is traceable to the coquetry of the female as much as to the passion of the male.7 A man may fancy he is seducing a woman when in reality the woman is seducing him. And even when religious motives are given no room for play, an ordinarily good woman can with a little reflection realize that, while dallying with the seducer, she is embarking on a dangerous course and that, if actual “seduction” follows, it will be her own fault as much as the man’s.8
6 Gen. XXXIX, 7–18 (Putiphar’s wife); cfr. XXXVIII, 13 sqq. Homer, Odyssey, I, 55 sqq. (Calypso and Ulysses); Iliad, VI, 160 sqq. (Anteia and Bellephoron).—Elbel-Bierbaum, Theol. Mor., Vol. I, 3rd ed., 223 sq. (Casus non fictus, sed vere factus).
7 2 Kings XIII, 11–17. (Amnon’s rape of Thamar).—Cfr. St. Jerome, Epist., XXII, n. 12 (Migne, P. L., XXII, 401).—Prov. VII, 5–27.
8 Linsenmann, Moraltheologie, pp. 612 sq.
“That a weak and poorly developed woman should be abused by a strong man against her will is credible,” says a medical writer; “but when both are in good health and in the possession of ordinary strength, such a thing is improbable, and a contrary statement deserves no credence unless the circumstances are exceptional. A woman may be attacked and abused against her will by two or more men; . . . but one man unaided is hardly able, under ordinary conditions, to overpower and rape a grown-up, healthy, and fully developed woman who is in the full possession of her strength and free to use it in offering resistance.”9
9 J. Maschka, Handbuch der gerichtlichen Medizin, Vol. III, pp. 136 sq.
- If a birth results from an act of fornication to which both parties freely consented, both are equally and in solidum bound to rear the child.
a) If the sin was committed through violence, grave fear, trickery or fraud, or if the woman was made incapable of offering resistance by intoxicating liquor or other similar means, or if consent or resistance on her part was morally impossible on account of mental weakness or extreme youth, the guilty aggressor is alone liable for the support and education of the child and, moreover, bound to marry the woman, or at least provide for her and the child to the best of his ability.10
10 Aertnys, Theol. Mor., Vol. I, 7th ed., l. III, n. 371: “If offspring has been born, a distinction must be made: 1. If the virgin freely consented, by natural right each parent is bound proportionately and in solidum for the expenses of education until the offspring can provide for itself; 2. If she was overpowered, the deflowerer alone is bound to bear the expenses of education; yet in his default the girl must supply them, since she is the mother of the offspring, but she then retains an action against her violator, who is obliged to restore the whole damage. Furthermore, both parents ought to acknowledge the offspring conceived or already born as their own in the manner of a legacy and, through subsequent marriage, to endow it with legitimacy, lest it remain disgraced and be deprived of inheritance and due education. This obligation ceases, however, if a grave disadvantage stands in the way or if the girl was deceived or overpowered, since she is not bound to enter marriage with her violator. Finally, for practice I observe: When the deflowerer is to compensate the damage with money, it is expedient that he agree upon the amount of the sum with those who suffered the damage and pay the sum at one time, lest perhaps a dangerous association be continued or payment of the debt be omitted.”—Noldin, II, pp. 494 sqq.
When necessary, it is licit to garnishee a portion of the man’s wages or salary for the benefit of the woman whom he has violated and of her illegitimate child.
If a woman has had voluntary intercourse with two or more men and it is consequently uncertain who is the father of her child, no one is obliged to make restitution, unless the civil law provides otherwise; for when a duty is doubtful, no certain burden may be imposed.11
11 St. Alphonsus, Theol. Mor., l. IV, n. 658: “This opinion, considered in respect of reason and speaking absolutely, is more probable, for no one is bound for damage unless it is morally certain that he was its cause.”—Cfr. A. Lehmkuhl, Theol. Mor., Vol. I, 12th ed., n. 997; IDEM, Casus Consc., Vol. I, 2nd ed., n. 714 sqq.—Noldin, II, p. 495.
If in case of rape several men have been guilty and there is consequent uncertainty with regard to the paternity of a child, all are obliged to make restitution pro rata.12
12 Lehmkuhl, Theol. Mor., Vol. I, p. 683; Aertnys, Theol. Mor., Vol. I, 7th ed., l. III, n. 376, p. 6: “What if, between two adulterers who have known the same woman, it is doubtful whose offspring it is? The answer is: The first and more common opinion teaches that each is bound for support in proportion to the doubt, because each inflicted a certain injury and some damage, namely either illegitimate offspring or uncertainty about the author who would be bound to pay. Moreover, the innocent party ought not to suffer from this uncertainty. The second and more probable opinion asserts that neither is bound to anything, because no one is to be bound to payment and restitution so long as the debt is not established; hence no one is bound to support offspring which is not established to be his. Nor does an injurious action suffice, but in addition damage certainly following from it is required. Yet the reasoning of the first opinion is persuasive in two cases: 1. Against the second adulterer, who, knowing that adultery was committed by the other, perceives that by his second adultery he becomes the cause of uncertainty because of which compensation cannot be demanded from the first adulterer; 2. If they committed adultery by common counsel. Such awareness and such counsel will be very rare. The aforesaid answer applies also to fornicators.”
b) The sin of fornication, committed with mutual consent, violates no strict right of the families of the respective participants, but it constitutes a gross violation of the respect and charity due to them. This damage the guilty parties should repair by making an apology and giving satisfaction, which they can do by faithful compliance with their duties. Parents, superiors, or teachers who seduce their subjects to fornication, possibly with a view of pecuniary profit (lenocinium), incur the same guilt and responsibility as those who command others to sin (mandantes).13 They are guilty of negative co-operation if they grossly neglect their duty towards their charges.
13 V. supra, concerning coöperation in evil.
c) In some countries a woman cannot recover damages if it can be proved that she had sexual intercourse with several men. The admission of this principle (exceptio plurium, as it is called), seems a hardship for the mother and her child, and gives unscrupulous men an opportunity to escape responsibility for their sins by causing others to have sexual intercourse with a seduced woman. But experience shows that to exclude this principle would promote blackmail and immorality. If the legal consequence of exceptio plurium is admitted, every intelligent girl that commits fornication with one man, knows that she will lose her claims against him if she takes up with another, and thus her will-power is strengthened and she is saved from sinking to lower depths. The illegitimate child will at least have a mother, who, though she may have sinned, is not a professional harlot or a blackmailer who runs after rich men to secure a “father” for her child.
Under the Code Civil Napoléon a suit for damages against the father of an illegitimate child was impossible because search for the father was forbidden.14
14 Art. 340: “La recherche de la paternité est interdite.”—Cfr. W. Beringer, Das uneheliche Kind und seine Mutter, Metz 1903; A. Bebel, Die Frau und der Sozialismus, 37th ed., Stuttgart 1904.
- When a child is born of adulterous intercourse, the wrong-doers, if they sinned freely, are both bound to provide for the child and make compensation for the loss ensuing to the husband or wife (provided he or she did not consent), and to his or her legitimate offspring.15 If the crime of an adulteress has remained unknown to her husband, and he is compelled to support the child, unaware that it is not his, though her guilt is grave and she is bound to make adequate restitution, she may nevertheless conceal her crime in order to preserve her good name and the domestic peace,16 and, under certain circumstances, she has the duty of safeguarding the interests of the adulterine child.17 But she is also bound to make compensation for the damage inflicted upon her husband and legitimate offspring, either from her own means, or if she possesses no property of her own, by increased diligence, economy, and reduction of her personal expenses.18
15 St. Alphonsus, Theol. Mor., l. III, n. 651; Gury, Comp. Theol. Mor., Vol. I, n. 702: “Each adulterer is bound in solidum to repair all damages coming upon the family, if the crime was voluntary on both sides, because the whole must be imputed to each. Hence: 1. All expenses which the husband made in supporting and educating the offspring must be restored; 2. If the illegitimate son has already received an inheritance with the legitimate children, compensation must be made to them proportionately.”
16 St. Alphonsus, Theol. Mor., l. III, n. 653 (ed. Gaudé, II, 130).—Gury, Comp. Theol. Mor., Vol. I, n. 703: “Is a woman bound to reveal her crime if she cannot repair the damage in another way? The answer is negative, speaking generally. The reason is: 1. Because commonly this revelation cannot be made without great disgrace to the woman and often without danger of death or of perpetual hatred and other grave evils; 2. Because even if such a means were employed, she could repair the damage only with difficulty. They commonly make an exception if the mother is of ruined reputation.”
17 Linsenmann, Moraltheologie, pp. 613 sq.: “If no other proofs are given, the child may not, merely because of the testimony of the mother, be denied the right of legitimacy; pater est, quem nuptiae demonstrant.”—Cfr. Gury, Comp. Theol. Mor., I, n. 704: “Is a son bound to believe his mother, even when she swears that he is illegitimate? The answer is negative, because by law and common sense no one is bound to believe one witness, even one of the most proven fidelity. It is otherwise, however, if besides the mother’s testimony evident indications are present, e. g., the father’s absence for a long time.”—Cfr. St. Alphonsus, Theol. Mor., l. III, n. 654 (ed. Gaudé, II, 132).
18 Gury, Comp. Theol. Mor., I, n. 702: “If the adulteress has paraphernal property, she must make restitution from it to her injured husband and children through gifts by hand, by contract, testament, legacies, etc. If she has none, let her administer the household more diligently and be more sparing in private expenditures; let her work more diligently, insofar as her state permits.”
a) If an adulteress conceals her crime in confessionali until she is near death, when it is impossible for her to make restitution, she should not be compelled to reveal her sin to her husband, because the reputation of a wife and mother is a more valuable possession for her husband and children than the temporal good of which they will be deprived in consequence of being ignorant of her sin.19
19 C. 9, de Poenit. et Rem., V, 38: “Just as penance is not to be denied to a woman who, unknown to her husband, conceived offspring through adultery, although she fears to confess this to her husband, so neither is it to be denied to her who substituted another’s offspring for her own, . . . but suitable satisfaction must be enjoined upon her by a discreet priest.”
b) If a man, by the use of force or serious threats, compels a married woman to commit adultery with him, he is the sole cause of the resulting damage and alone bound to make restitution and to provide for the support and education of the child.20 In case there is doubt whether the child belongs to him or to the woman’s lawful husband, the adulterer is not obliged to make restitution, for according to the principle, “Pater est, quem nuptiae demonstrant,” a child is regarded as the offspring of the mother’s lawful husband unless the contrary is proved.21
20 Aertnys, Theol. Mor., Vol. I, 7th ed., l. III, n. 374: “When an adulterer has extorted the woman’s consent by force, fear, or fraud, he alone is bound to repair the whole damage. The reason is that then he alone is the cause of the whole damage.”
21 St. Alphonsus, Theol. Mor., l. II, n. 657 (ed. Gaudé, II, 133).—Gury, Comp. Theol. Mor., I, n. 703.—Code Civil Napoléon, a. 312: “L’enfant conçu pendant le mariage a pour père le mari.”—J. Maschka, Handbuch der gerichtl. Medizin, III, 4 sqq.
c) If a woman has had adulterous intercourse with two or more men besides her husband, and it is uncertain which of them is the father of her child, none is held to restitution, since the mother is the cause of the uncertainty. But if a conspiracy existed between the men, they are bound to make restitution in solidum. If those that came later were aware of the woman’s previous relations with others, they are bound to make restitution pro rata dubii and in solidum.22
22 Aertnys, Theologia Moralis, Vol. I, 7th ed., l. III, n. 376, qu. 6; Lehmkuhl, Theologia Moralis, Vol. I, 11th ed., n. 1190: “When several adulterers have approached a woman at about the same time suitable for generation, and it is not known whose the offspring, certainly adulterine, is: if they acted by common counsel, or if they merely knew or gravely suspected that others had already been admitted, I think that they are all bound, in proportion to the doubt, to repair the damages that will arise to the husband or legitimate children. For they all posited a cause which of itself is apt either to procreate offspring of a certain father or to produce uncertain and doubtful paternity, and therefore to produce uncertainty concerning the one from whom the husband and others who suffered damage could seek complete reparation of certain damage. But producing this uncertainty is an unjust and damaging action. Therefore, from this injustice, whose effect they knew could arise from their own action, they are bound to repair the damage; nevertheless, since the same injustice is not present just as if the certain author were established, each must repair only in proportion the damages that will arise; he is not bound in solidum.”
d) He who commits his illegitimate child to a public foundling asylum, is not bound in justice to make restitution of the money expended for its support, because such institutions exist for all children, rich and poor, which are exposed to danger. Since, however, foundling asylums are not intended to relieve wealthy people of the care for their offspring, it is surely a matter of equity that the expenses be repaid in such cases.23
23 Cfr. St. Alphonsus, Theol. Mor., l. III, n. 656 (ed. Gaudé, II, 133); Gury, Comp. Theol. Mor., I, n. 705.
e) Adultery is a canonical ground for demanding a separation a mensa et toro. The guilty party loses the ius petendi debitum coniugale, which may, however, be recovered by express or implied condonation on the part of the innocent party. The least that can be expected of a husband or wife who has been guilty of adultery is that he or she humbly confess his or her sin, ask for forgiveness, and sincerely promise to be faithful in future. Genuine penitence can usually repair the scandal given, at least in its more serious consequences.
Readings.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., 1022 sqq., 146 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 640 (ed. Gaudé, II, 115 sqq.).—H. Noldin, S. J., Summa Theol. Mor., Vol. II, pp. 494 sqq.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 242 sqq.—T. Slater, S. J., A Manual of Moral Theol., Vol. I, pp. 416 sq.—A. Lehmkuhl, S. J., Theol. Mor., Vol. II, pp. 680 sqq.