Section — Prümmer, Manuale Theologiae Moralis
§ 7. Abduction
819. Notion. Abduction, insofar as it is an impediment of matrimony, is distinguished from abduction insofar as it is a sin of lust, which is wont to be defined: the violent abduction of a woman from a safe place to an unsafe place for the purpose of satisfying lust. But abduction as an impediment of matrimony is defined: the violent abduction or detention of a woman for the purpose of entering matrimony.
Origin of this impediment. The abduction of women for the purpose of entering matrimony occurred many times among the ancient pagans and Jews. Examples are the abduction of the Sabine women and the abduction of Helen. Even in our days, among barbarous peoples, women are sometimes abducted for matrimony.149 In ancient Roman law the abduction of women was punished most gravely, namely, by the penalty of death.150 In the law of the Decretals, abduction is not yet found, at least as an impediment distinct from the impediment of fear.151 But the Council of Trent152 established abduction as a special impediment in these words: "The holy Synod decrees that between the abductor and the abducted woman, so long as she remains in the power of the abductor, no matrimony can subsist. But if the abducted woman, separated from the abductor and constituted in a safe and free place, consents to have him as husband, the abductor may have her as wife; and nevertheless, the abductor himself and all those furnishing counsel, aid, and favor are by the law itself excommunicated and perpetually infamous, and incapable of all dignities, and, if they were clerics, they are to fall from their proper rank. Furthermore, the abductor is bound to endow the abducted woman decently, according to the judgment of the judge, whether he has taken her as wife or has not taken her." The Code of Canon Law, can. 1074, establishes similar things.
149 Cf. Westermarck, History of Human Marriage, c. 17.
150 L. 5, § 2, Dig., Ad leg. Iul. de vi publica, 48, 6.
151 c. 7, X, 5, 17.
820. Required conditions. In order that abduction constitute a diriment impediment of matrimony, and one distinct from the impediment of force and fear, the following are required according to the discipline now in force:
a) Violent abduction from a safe place to an unsafe place, that is, the woman must be abducted from a place in which she was safe to a place physically and morally diverse in which she is no longer safe.
Hence the abduction of a woman from one house to another in the same city suffices, because the place is diverse; but the abduction of a woman from one room to another in the same house does not suffice, since the rooms of the same house are not held to be morally diverse places. Nevertheless, even in this case the matrimony could be invalid a) because of the impediment of force and fear, b) because of the violent detention of the woman in such a place. - It makes no difference whether the abductor himself, who desires to enter matrimony, abducted the woman, or another did so at the command of the abductor. For what someone does through another, he is held to do himself.153
The abduction must be violent, that is, against the will of the woman. This violence can be either physical (raptus violentiae) or moral, that is, accomplished by grave fear, fraud, deceit, hypnotic suggestion, etc. Therefore the impediment of abduction is not present if a woman freely flees with a man to a distant place for the purpose of contracting matrimony there against the will of her parents. But in the external forum, the free consent both to the flight and to the matrimony must then be proved; otherwise abduction is presumed.154
Violent detention is equivalent to abduction. If a woman indeed freely flees with a man but afterward is violently detained in an unsafe place and induced by fear or deceit to contract matrimony, the impediment of abduction is also present in this case.155
b) The abduction of a woman, whether honorable or dishonorable, whether espoused or not yet espoused.
The impediment of abduction does not arise if a man is forcibly abducted from a safe place to an unsafe place for the purpose of entering matrimony. Thus the most common and today certain opinion, with a few contradicting.156 The reason is that the Code of Canon Law speaks of a male abductor and a female abducted, but not of a female abductor and a male abducted; nor is there a sufficient cause for extending the impediment to the abduction of a man.
c) For the purpose of entering matrimony.
It is required that the end of the abduction or detention was entering matrimony, and not lust, vengeance, the extortion of money, or something else.157 If there is doubt what the end of the abduction was, the end of matrimony is presumed.
d) That the abductor retain the abducted woman in an unsafe place and contract matrimony there.
For the Code of Canon Law, can. 1074, § 2, expressly establishes after the Council of Trent:158 "But if the abducted woman, separated from the abductor and constituted in a safe and free place, consents to have him as husband, the impediment ceases."
153 Cf. Rule of Law 68 in VI°.
154 Cf. Leitner, Lehrb. d. kirchl. Eherechtes, § 25, p. 142.
155 Code of Canon Law, can. 1074, § 3.
156 Cf. St. Alphonsus, Theol. mor., bk. 6, n. 1107.
157 Sacred Congregation of the Council, January 23, 1586.
158 Loc. cit.
821. Cessation of the impediment. Although the impediment of abduction (insofar as it is not joined with the impediment of force and fear) is constituted by ecclesiastical law alone and therefore does not bind unbelievers among themselves,159 nor did it exist before the Council of Trent, nevertheless the Supreme Pontiff most rarely dispenses from it, because a) it is so intimately connected with the impediment of force and fear, b) there is a great danger that the woman, existing under the power of the abductor, may furnish matrimonial consent that is not altogether free but merely feigned.
For this reason, the Holy Office, in an Instruction directed to the bishops of Albania on February 15, 1901, was unwilling to delegate the faculty of dispensing to the bishops. These are the words: "Nothing prevents assistance from being given to the abducted woman by a dispensation if, in whatever manner, it is certainly established that her consent is truly free and sufficient motives for dispensing are present. But in a matter of such moment, especially lest the most holy Tridentine law become cheapened through excessive facility in obtaining a dispensation of this kind, it is fitting that judgment be altogether reserved to the Holy See."160
Indeed, in every concession of a matrimonial dispensation the clause is wont to be added: "provided that the woman was not abducted, and if she was abducted, that she does not exist under the power of the abductor." This clause imports a true condition without which the dispensation is not valid. - But in the most ample faculty of dispensing from impediments, however public, conceded by the Code of Canon Law, cann. 1043-1045, for imminent danger of death and for a case in which matrimony cannot be deferred without grave danger, there is also included the faculty of dispensing from the impediment of abduction. But care must then be taken that the abducted woman furnishes true and free consent.
The impediment of abduction ceases by that very fact when the abducted woman has been separated from the abductor and restored to a safe place. This is evident from the words of the Code cited. But it belongs not to the parish priest but to the bishop to judge whether the abduction has truly been purged, that is, has ceased;161 nevertheless, even after the abduction has been purged, there remain not only the penalties imposed against abductors of women (concerning which below), but also, if some other impediment obstructed the matrimony, mention of the abduction previously committed would have to be made in the petition for a dispensation. When it is necessary to convalidate a matrimony invalid because of the impediment of abduction, the spouses must first be separated, and both must express marital consent before the parish priest and two witnesses according to the legal norms. For this impediment is held to be of public law. Only a dispensation conceded in danger of death is excepted.
159 If the abductor is a member of the faithful but the abducted woman an unbeliever, and likewise conversely, if the abductor is an unbeliever but the abducted woman a member of the faithful, the impediment of abduction seems to bind each: the member of the faithful directly, but the unbeliever indirectly. Cf. Cappello, De sacr. III, n. 472; Wernz-Vidal, Ius can. V, n. 310.
160 Collect. de Prop. Fide, n. 2101.
161 Cf. Gasparri, De matrim., n. 559; Feije, De imped. et dispens. matrim., 4th ed., n. 186; Van de Burgt-Schaepman, Tract. de matrim., n. 115. - Wernz-Vidal, Ius can. V, n. 313, and Vogt, loc. cit., § 43, teach that the judgment of the bishop is not required, at least by common law.
822. The penalties against abductors of women imposed by the Council of Trent162 or by ancient law have been abolished. But the Code of Canon Law, can. 2353, establishes: "One who, with a view to matrimony or for the purpose of satisfying lust, has abducted an unwilling woman by force or deceit, or a woman who is a minor (below twenty-one years of age) indeed consenting but without the knowledge or against the will of her parents or guardians, is by the law itself to be held excluded from legitimate ecclesiastical acts and furthermore is to be punished with other penalties according to the gravity of the fault."
The abduction of women (especially that perpetrated for the purpose of lust, which today rages so widely in what are commonly called Mädchenhandel, "traffic in girls," and la traite des blanches, "white-slave traffic") is also wont to be punished most gravely by civil laws.163
162 Sess. 24, c. 6, De reform. matrim.
163 Cf. Austrian Civil Code, §§ 56, 94; French Penal Code, art. 354 ff.; German Penal Code, § 236 ff.; Spanish Civil Code, art. 135; and Penal Code, art. 460 ff.