IV. On Injurious Copulation

318. - When the assent of the other party is lacking, a grave malice against justice is committed by fornication, which will be either stuprum or abduction. We have already spoken of adultery.

First let us speak of stuprum.

1. In moral theology, stuprum is the lustful oppression of an unwilling person: whether copulation or obscenity has been extorted by open force, or by fraud, for example by a deceitful promise of matrimony, by deception concerning the nature or malice of the act, as if the seducer were to abuse the girl's ignorance or trust; or by threats or entreaties so importunate that they are equated with violence ¹.

¹ Palmieri, Opus theologicum, vol. 6, no. 1010.

Furthermore, if the fornication redounds to the disgrace of the woman's family and to the grave sorrow of her parents, it will contain a grave fault against charity. And a woman then consenting will gravely offend against the very piety owed to her parents.

Moreover, one who oppresses a virgin is twice injurious, since, besides the abuse of her body, he also takes from her the seal of virginity. Cf. Sanchez, De matrimonio, book 7, disputation 14, no. 7; Noldin, De sexto, no. 24.

2. Stuprum is not so rarely a reserved sin and is punished by canonical penalties. Cf. canons 2357, § 1, and 2359, § 2, which will be recited below, after the other external sins against the sixth precept.

Stuprum is then, according to the opinion of the older authors, understood only of the defloration of an unwilling virgin. But she is considered a virgin who, although she perhaps has sinned, has nevertheless preserved the seal of virginity ². Cf. Noldin, De sexto, no. 24.

² Gratian, however, at canon Lex 2, Cause XXXVI, question 1, defined stuprum as "the illicit defloration of a virgin," and says that it is illicit when it takes place at least against the will of the father. And so the condition of an unwilling virgin entered the canonical essence of stuprum only afterward.

3. Fornication committed with a virgin who knows and consents contains no new malice, at least no grave one, from the removal of virginity: no injury is done to one who consents. Yet to cooperate in defloration through sin seems lightly to be opposed to charity.

319. - 1. While in stuprum the injury is committed by the very lustful act, the exterior act of the abductor alone is opposed to justice. For, in moral theology, abduction is: the injurious deprivation of liberty inflicted upon some person for the fulfillment of lust.

And so that person can be male or female, married or unmarried. Force can be inflicted both upon the person himself or herself who is deprived of liberty and upon those under whose authority that person is. And one who is deprived of liberty by guile and fraud is also considered morally to be abducted.

2. If a girl of full age willingly departs with a lover, without the knowledge of her parents, there is not properly abduction but elopement, which of itself adds no new species to fornication. Concerning a girl who is a minor, attention must now be given to canon 2353, to be alleged below.

3. Canonically, abduction which constitutes an impediment of matrimony must be distinguished: it concerns only a woman and supposes the intention of matrimony - this is treated in the treatise on matrimony - from abduction which is a crime to be punished in the external forum.

The crime of abduction requires the violent or fraudulent carrying away of an honorable woman from one place to another, whether for the purpose of entering matrimony or of fulfilling lust. According to canon 2353, it is committed even if a consenting girl who is a minor is carried away without the knowledge of, or against the will of, her parents or guardians. And fraud is equated with force, as had already been answered by the Sacred Congregation on January 24, 1608, and August 27, 1864.

Therefore, for the crime of the external forum, a carrying away is required; the deprivation of liberty alone is not sufficient. But it is already consummated if lust is fulfilled on the journey itself. When a prostitute has been carried away, the crime is not regularly committed. Indeed, according to several ³, who argue from canon Cum causa 6, De raptoribus, etc. (5, 17), 2, one who has carried away his betrothed woman, indeed a woman with whom he had entered into negotiations concerning matrimony, is immune from the crime. For thus reads the chapter mentioned: "We respond that abduction is said to be admitted where nothing has previously been done concerning nuptials: this man ought not to be called an abductor, since he had the woman's assent and had betrothed her before he knew her, although the parents protested." The earlier words sufficiently openly favor this opinion, but the later words, where the woman is said to have consented, weaken the force of the argument. Therefore, the matter is uncertain.

³ For example Palmieri, vol. 2, treatise 6, no. 1013, after St. Thomas, II-II, question 154, article 7, reply to objection 4, and Lessius, book 4, chapter 3, no. 70, against Wernz, De matrimonio, no. 280, note 32.

Canon 2353 describes and sanctions abduction in these words: "One who, with a view to matrimony or for the purpose of fulfilling lust, has carried away by force or fraud an unwilling woman, or indeed a consenting woman who is a minor but without the knowledge of, or against the will of, her parents or guardians, is by the law itself to be held excluded from legitimate ecclesiastical acts and, in addition, is to be punished with other penalties according to the gravity of the fault ⁴."

⁴ That a carrying away is still required even now can be gathered from the opposition of canon 1074, § 3, which expressly denies that a carrying away is required where there is question of the impediment of matrimony. But legitimate acts are: the office of godfather in baptism or confirmation; administration, by virtue of an office, of ecclesiastical goods; the act of a judge, auditor, relator, defender of the bond, promoter of justice and of the faith, notary and chancellor, usher and apparitor, advocate and procurator in ecclesiastical causes; a vote in elections; the exercise of the right of patronage.

But according to canon 2354, § 1: "A layman legitimately condemned for the crime of... abduction... is by the law itself to be held excluded from legitimate ecclesiastical acts and from any office, if he has any in the Church, without prejudice to the burden of repairing the damages." According to § 2, a cleric is to be punished, according to the gravity of the fault, with various penalties, even deposition.

320. - Those who, because of an office undertaken or an agreement entered, must take care of the spiritual or moral good of certain persons by an obligation of justice from which the consent

of those persons cannot release them, if they sin carnally with these persons, at the same time gravely violate commutative justice.

Such an obligation is held by a bishop in relation to his diocesans, a pastor in relation to his parishioners, the instructor or superior of a college in relation to the pupils entrusted to him by their parents, and a guardian in relation to his ward.

But the assistants of pastors, or coadjutor vicars, and of the director of a college, or masters and prefects of discipline, do not participate in this obligation; but they will usually already be gravely scandalous for this reason, because they have defamed the priestly order or the religious state, and have weakened religion itself in the soul of the accomplice.

Concerning a confessor who sins with a penitent, there has been doubt. It is indeed certain that one who has abused the occasion of confession, or even knowledge obtained from confession, in order to sin will be guilty of grave sacrilege; indeed, so will one who has sinned in those circumstances in which irreverence or detriment would redound from the sin upon the sacrament ⁵. But inquiry is made concerning a confessor who sins apart from every relation to confession.

⁵ Cf. Cardinal de Lugo, De sacramento paenitentiae, disputation 16, no. 355.

And there were those who affirmed this, relying either upon decrees which specially prohibited sins of the flesh to confessors, or upon some bond of spiritual relationship which would be contracted from this sacrament. Thus Sanchez, De matrimonio, book 7, disputation 55, nos. 3 and 4.

But with Cardinal de Lugo ⁶ and most of the more recent authors, this must be denied. St. Alphonsus ⁷ considers this opinion more probable. For today there certainly are no positive decrees; the bond of spiritual relationship is affirmed gratuitously, since from confession, as such, no stable relation arises between confessor and penitent ⁸.

⁶ De sacramento paenitentiae, disputation 16, no. 357; cf. no. 359.

⁷ Book 3, no. 451.

⁸ Cf. de Lugo, in the cited place, no. 357.

There are, even now, those who affirm of a habitual spiritual father, even one chosen by the penitent, what they deny of a confessor. Lugo thinks that this can rather easily be conceded ⁹. But we consider that it should instead be denied. Certainly, even an elected spiritual father is bound in justice to give no fraudulent counsel and not to abuse his authority. But if, as an equal to an equal, he has proposed the sin and it is accepted, the office ceases or is interrupted by mutual consent, and here too that saying holds true: no injury is done to one who consents. Yet we do not on this account disapprove the peculiar horror which a sin of this kind produces; but that horror demonstrates the enormous scandal and easy abuse of authority which usually accompany that sin.

⁹ In the same place, no. 358.

But a more severe judgment must be made concerning one who is appointed by legitimate authority to exercise the properly so-called office of spiritual father, such as the spiritual director of a monastery is accustomed to hold. No forgiveness by a spiritual daughter can then exempt the man from his special obligation.

321. - Because of what we wrote in no. 48, at the end of p. 43 and on p. 44, concerning an anointing by which infection with venereal disease can be avoided, you will ask:

1. Whether one who applies an antiseptic ointment before fornication so that he may be immune from infection formally sins or not;

2. Whether the use of this ointment can be advised or not;

3. Whether it is lawful for pharmacists to have this ointment for sale or not?

To 1. Although, as it seems (cf. Times, January 1917), certain Anglicans in England scrupulously distinguished between a use which precedes the sin and one which follows it, and prohibited the former but approved the latter, it must not be doubted that even an anointing performed by one about to sin is to be called formally blameless. We do not touch upon the case of a woman who by an anointing of this kind renders copulation infertile.

The intention of fornication is certainly evil, just as it is always evil to sin and to will to sin; but it is not evil, while sinning, at the same time to seek means which are indifferent in themselves for avoiding the harmful consequences of the sin.

To 2. One would certainly sin if, by revealing the medicine or advising its use, he were to induce someone to sin; but nothing prevents him from indicating to one who has resolved to sin a means by which he may sin with less bodily harm.

To 3. The sale would certainly have to be refused if men would abstain from fornication for this reason. But there are so many who expose them- selves to the danger of infection that such a fruit cannot be hoped for from refusing the sale. Again, this must not be concealed: ready availability of the preventive medicine will remove from many the fear of fornication. But since venereal disease threatens not only the sinner but also many innocent persons, so that it can be called a common evil, there is a most just cause for permitting this temptation of many. Moreover, the uprightness of one who is restrained from sin by fear of disease alone is slight. Add that this remedy can also benefit spouses, so that its use may accompany an altogether honorable action.