IMPORTENZA

IMPOTENCE. — I. (Latin *impotentia*) is the inability to perform some action. Law and morality concern themselves with man’s *impotence* in the sphere of his duties, namely, his inability to fulfill obligations arising from the law: an inability that may be either physical or moral (see INCOMODO).

In a more technical sense, however, the term denotes that diriment impediment to marriage which consists in conjugal incapacity, i.e., the inability to perform the conjugal act.

I. CONCEPT

Given this premise, it is well to note at once that the *Codex Iuris Canonici* does not provide a definition of *impotence*, but merely establishes certain general principles. On the one hand, it requires the capacity "for acts per se apt for the generation of offspring" (can. 1081 § 2), while on the other it declares that "sterility does not dissolve or impede marriage" (can. 1068 § 3), and that marriage is not to be impeded in cases of doubtful *impotence* (can. 1068 § 2), whether the doubt be of law or of fact (*ius vel facti*). From this two conclusions follow: a) that the *CIC* did not intend to resolve the controversy existing among theologians and canonists regarding the juridical nature of *impotence*; b) that, given the theoretical dispute, in practice one may in doubtful points follow the opinion that favors the validity of the marriage.

II. HISTORY OF THE IMPEDIMENT OF IMPOTENCE

In ecclesiastical law, the first reference to the impediment of *impotence* dates from the 7th century (*Poenitentiale Theodori*; ed. H. J. Schmitz, *Die Bussbücher und die Bussdisciplin der Kirche*, I, Mainz 1883, p. 547). The text of Gregory II (c. 18, C. 32, q. 7), slightly later (726), is of controversial interpretation. However, the doctrine of the *Penitentiale* of Theodore passed into the Frankish Councils of the 8th century (Council of Verberis, can. 17 (756); Compiègne, can. 20 (757); Salzburg, can. 15 (800). Advocates of the copula theory, first Incarso and then Gratian, regarded *impotence* more as a ground for dispensation from marriage than for nullity (*dictum Gratiani*, in C. 39, q. 1). Peter Lombard, of the opposing school (consensual theory), recognized *impotence* as a cause of nullity, but only if unknown to the other spouse (Sentences, IV, dist. 34, A).

For a time, and indeed until the 12th century, given these uncertainties, the Roman Church customarily required in cases of *impotence* that the spouses live together as brother and sister (chapters 2, 4, Compilatio I, IV, 16). From the time of Alexander III onward, the practice of the Frankish councils—declaring marriages of the impotent null—was also introduced into the Church (chapters 2, Compilatio I, IV, 16). This practice was incorporated into the Decretals of Gregory IX, which, however, required a three-year trial period (c. 5, X, de frigidis, IV, 15) and introduced from Germanic law as proof the so-called "seventh-hand" testimony and the physical inspection of the woman (c. 2, 5, 7, C. 33, q. 1), a practice which doctrine extended also to men. The casuistry of the doctors developed from the 12th century onward, determining cases of *impotence* in men and women and recognizing as true *impotence* only that which amounted to *impotentia coëundi*. They also admitted *impotence* arising from witchcraft (*maleficium*), finding support in the very sources of law (c. 4, C. 33, q. 1).

A particular importance attaches to the determination of the concept of *impotence* in the constitution of Sixtus V, *Cum frequenter*, dated 27 June 1587, addressed to the Bishop of Novara, nuncio to the Spanish court, who had consulted the Pope regarding the liceity of marriages of eunuchs and spadoes. The Pontiff answered in the negative, ordering the separation of those who had already contracted such bonds, which were declared null, void, and invalid. The papal response is quite clear for the specific case submitted, but its application to the general problem of defining *impotence* remains a matter of controversy. Moreover, while it defines the limits of *impotence* in men, it says nothing regarding women. Benedict XIV, with the constitution *Dei misericordiae* of 3 November 1741, ordered a new procedure for cases of *impotence*, a procedure which has undergone further refinements in the *CIC* and in the constitutions of the Sacred Congregations, both before and after the *CIC* (cf. Sacred Congregation of the Council, 22 August 1840; Holy Office, 6 August 1890, etc.).

III. NATURE OF IMPOTENCE

In the generation of man, a distinction may be made between a voluntary human action (intercourse with seminal emission into the vagina) and an action entrusted to the play of physiological mechanisms that unfold involuntarily according to natural activity. This latter action, though in part also belonging to the man, is especially proper to the woman and consists in aiding the two moments of the reproductive mechanism: intercourse and fertilization. The insufficiency of the procreative faculty may take the form of *impotence* to perform intercourse (*impotentia coëundi*) or *impotence* to generate (*impotentia generandi*), understood in the strict sense as sterility. The human action ceases with intercourse; what follows is not dependent on the spouses, but on the uncontrolled play of natural forces. Thus, it is now commonly admitted that *impotence* exists when, on the part of the man, any essential element of the procreative faculty is lacking, and artificial fertilization (*v.*) strictly understood does not suffice.

The controversy begins, however, when it comes to determining the nature both of intercourse and of sexual motion, as authors follow two different criteria. Some, leaning rather toward the concept that marriage is a natural right, to be excluded only in those who lack the capacity to attain either the primary or the secondary end of marriage, tend to extend physical capacity and reject the limits of *impotence* (theory of sterility). Others, focusing chiefly on the primary end and, more than on the conjugal act itself, on the efficacy of the procreative faculty, tend to broaden the concept of *impotence* (theory of *impotentia*).

IV. Principal Cases of Impotence

Passing to concrete determination, impotence must be considered separately in men and women.

1) In Men. — Impotence with regard to intercourse in men may be provoked by functional defects at various stages of the act of intercourse or by anatomical anomalies of the copulative organ.

Among the functional forms, a distinction must be drawn between those of psychic origin and those of nervous origin. One speaks of impotence of psychic nature when the cause is linked to sexual insensitivity (frigidity) or to inhibiting psychic stimuli that, originating from the higher nervous centers, block the spinal sexual reflexes (obsessive fear of incapacity, extraneous worries, fear of being surprised, strong antipathy, disgust, or previous serious sexual aberrations, in which case particular prudence will be necessary in advising marriage as a remedy, if at all).

One speaks instead of nervous impotence when the cause resides in actual anatomical alterations that have affected the pathways and centers of the sexual nerves; sometimes severe, sometimes so slight as to escape superficial investigation, with a causal and symptomatic complex that may appear to be of only psychic origin. Thus, forms linked to profound exhaustion of the sexual centers of the spinal cord, consecutive to a primary state of nervous eroticism or intense sexual abuse; such forms occur in diabetes; more demonstrable are the lesions in chronic alcoholism. In tabes dorsalis and in progressive paralysis or paralytic dementia, both linked to syphilis, as the disease progresses, impotence is linked to a true destruction of the spinal nerve centers. An opposite state of psychic hyperexcitability, with extreme ease of provoking the nervous reflexes of sex, can lead to ejaculatio praecox, a cause of impotence due to untimely emission of semen, a form susceptible to cure.

With regard to organic impotence in men, it is easily understood how the complete absence of the copulative organ makes intercourse absolutely and incurably impossible. This is what occurs, for example, in cases in which the organ has been mutilated by traumatic causes or had to be removed for medical reasons (cancer, tuberculosis, etc.). Such absence may also be congenital, presenting all cases of more or less accentuated underdevelopment of the organ, up to its absolute absence; an anomaly that represents the most extreme and incurable defect of procreative activity, also because to such an anomaly of the external genitalia there often associate equally serious malformations of the deeper sexual organs. Very often, however, a question of relativity arises, which makes the work of an expert necessary, who can indicate whether, in the particular case, that specific development is or is not compatible with the function of the organ.

2) In Women. — Here too impotence may be functional or organic; it must be said at once, however, that in relation to the conditions of greater passivity of the woman in intercourse, the functional form becomes less important than that dependent on anatomical causes.

Among the forms of psychic origin, one must recall the insurmountable horror or revulsion toward the sexual act; which, it is understood, in the married state, in which relations can take place under conditions of legality, may be linked to states of mental alteration, to a misguided sense of modesty, to ignorance of the physical purpose of marriage and of the mutual physical duties between spouses.

One must also recall vaginismus, that is, the painful spasmodic contraction of the musculature of the vagina such as to prevent intercourse. Vaginismus must be considered a functional impediment to intercourse, although sometimes it is supported by anatomical causes, such as irritations of the external genitalia, slight cracks in the mucosa (fissures), suppurative inflammatory processes (gonorrhea), from which painful stimuli arise that, becoming exacerbated in the attempt at intercourse by reflex action, provoke the spasmodic contraction of the muscles of the genital apparatus. Vaginismus almost never constitutes an incurable cause of impotence, since it can be relatively easily overcome by psychic or physical treatments.

V. Requisites of Impotence as a Diriment Impediment and Treatment of Marriages of the Impotent

For the purposes of the diriment effect of impotence, it does not matter whether the impotence is on the part of the man or the woman, known or unknown to the other spouse. Thus fall away ancient controversies (Sum. Theol., Suppl., q. 52, a. 1), now more than anything of historical flavor: it is clear indeed that the impotent person, precisely because impotent, is incapable of the mutual giving and acceptance of the ius matrimoniale.

Nor does it matter whether the impotence is absolute, that is, toward all persons of the other sex; it suffices that it be relative (that is, limited to the person with whom the marriage has been contracted): the effect is in fact the same; in that marriage the payment of the conjugal debt is not possible and therefore the object of the contract is lacking.

Nor is the origin of the impotence of interest—whether of functional (psychic or nervous) or organic nature; if anything, the origin may shed light on the other characteristics of the impotence. For impotence to be efficacious for the purpose of invalidating marriage, it must be antecedent to the celebration (subsequent impotence is not relevant), perpetual, that is, incurable without danger of death (can. 1068 § 1). To prevent and even more to have declared null a marriage already celebrated, it is required that the impotence be certain, at least of moral certainty. Doubtful impotence, as has been said, is not relevant (can. 1068 § 2) either before contracting marriage to prevent it, nor, after marriage has been contracted, to render it null, whether the doubt be of law or of fact. Morally, however, it is obligatory to eliminate any doubt as far as possible before proceeding to the celebration; and, should doubt remain, it is obligatory to inform the other party.

After marriage has taken place, with a certain impediment of impotence existing and therefore normal conjugal relations being impossible, any other satisfaction of the senses is illicit for the pseudo-spouses. They may, however, be left in good faith if, rather than dissolving the marriage, serious inconveniences are foreseen and if the impediment is occult and therefore not a cause of scandal. If they are instead in bad faith, they must be admonished to separate, or, if separation is morally impossible, they must be enjoined to live in perfect continence, as brother and sister, provided that there is no danger of sin for them, nor scandal for others.

In ordinary cases of certain antecedent and perpetual impotence, separation “quod torum” must be effected at once by the pseudo-spouses themselves; separation of domicile may also be effected by their own private initiative, if there is no danger of scandal; indeed, it must be done if there is danger of incontinence. Ordinarily, however, if there is danger of scandal from separation of domicile, it is necessary to await the intervention of the competent ecclesiastical authority. The authentic declaration of nullity of marriage cannot, in any case, be given except by the ecclesiastical judge, to whose ministry the interested parties must therefore have recourse. The ascertainment of impotence and of its requisites of priority in relation to marriage and of perpetuity is based both on the confessions of the spouses, and on medical investigations (cann. 1976-82; V. EXPERTS), and on the so-called “septimanae manus” testimonies (cann. 1975), and on the analysis of every other element of indirect and presumptive proof, from the whole of which the judge must arrive at moral certainty of the actual existence of the impediment. Once this is done, the judge issues the sentence of nullity and the party who is sexually capable may contract a new marriage, once the procedural formalities required for its liceity have been completed.

Sometimes a judge, unable to obtain juridical proof of the consummation of a marriage, may limit himself to collecting evidence of its non-consummation and then transmit the acts to the competent authority for proceedings of this kind (can. 1963 § 2; V. MATRIMONIO). If the judge has an interest in the matter, the marriage remains valid in the external forum. At most, a temporary personal separation of the spouses may be granted if the continued cohabitation under conditions of sexual incapacity of the spouses or one of them constitutes a grave danger to the soul or body of one or both (can. 1131 § 1). The problems of the internal forum regarding the regulation to be given to conjugal cohabitation and the use of marriage remain; these problems each person must resolve by consulting his own conscience and persons of counsel, among whom the confessor should be foremost. A general criterion may be considered to follow this norm, which is rather common among moralists: an attempt at the sexual act may be made, provided there is some hope of success, at least initially, even if the act will certainly be non-procreative, and provided the spouses intend to do all they can to ensure that the act is performed in the best possible way. The so-called imperfect acts, which help to maintain affection between the spouses, are also permitted, provided there is no proximate danger of pollution or, at least (in cases of necessity), of consent to II. In these cases, artificial insemination (v.), taken in a broad sense, is admitted by some as probable and by others as certain, because the conjugal act is performed, or an attempt is made to perform it, according to the natural order, not subverting it but merely assisting II.
VI. THE IO. AS PROOF OF NON-CONSUMMATION OF MARRIAGE: V. MATRIMONIO.

VII. THE IO. IN THE ITALIAN CIVIL CODE. — The io. considered by the Italian Code may be organic or functional, including in this concept also psychic io. Article 123 of the Code states: “The io., whether perpetual or relative, when it precedes the marriage, may be proposed as a cause of nullity by the husband or the wife. The io. to generate may be proposed as a cause of nullity of the marriage only if one of the two spouses lacks the organs necessary for generation, etc.”

This article innovated with respect to what was provided by the Civil Code of 1865 (art. 107), which limited itself to declaring io. a cause of annulment of the marriage when it was manifest, perpetual, and antecedent to the marriage itself.

It was debated whether the io. thus contemplated was only that of *coitus* or also that of *generation*, although the more widespread and correct opinion considered only the io. *coitus* as a cause of annullability. The wording of art. 123, if it has not removed all grounds for debate, has at least limited them.

Compared to the previous Code, an innovation has been made in the sense that the io. *coitus* may be proposed as a cause of nullity even by the impotent spouse; while the mention that the io. must be manifest has been suppressed, considering that improved medical investigative means now allow the ascertainment of io. even when it is not manifest.

But the most important innovation is contained in the 20th paragraph of the article, which admits that the io. to generate may be proposed as a cause of nullity of the marriage “if one of the two spouses lacks the organs necessary for generation.”

It must first be noted that, where the lack of such organs results in the impossibility of sexual union, the marriage is annullable for io. *coitus*, in accordance with the rules of the 10th paragraph.

Given this premise, it cannot be said that the 20th paragraph, whose formulation during the reform of the Code was much debated and laborious, has opened the way to peaceful solutions.

For both doctrine and jurisprudence debate whether the io. to generate spoken of by the Italian legislator is to be understood in a strict sense, such that it must be recognized only when the organs necessary for generation are entirely lacking (for natural or other causes) or their imperfection is such as to be equated with non-existence; or whether it should not be interpreted more broadly, to include the lack of functional capacity. If one adheres to the first interpretation, it could be said that the Italian legislator is quite close to that which is the canonical doctrine (and this is what the report of the Minister of Justice to the Italian Parliament wished to emphasize), since the notion of io. *generandi* adopted tends to coincide with the canonical notion of io. *coitus* (inasmuch as it would practically include only the case of the *mulier exsisa*, the lack of organs necessary for generation in the man producing, as has been rightly observed, io. *coitus*). But a fairly widespread jurisprudential current is inclined to interpret paragraph 20 broadly, including cases of simple functional io. to generate.

In any case, since questions regarding the validity of concordat marriages are reserved to the competence of the ecclesiastical judge (and for those celebrated with a double rite prior to the Concordat, the parties being free to propose the question of nullity of the civil bond or to avail themselves of the faculty under art. 22 of the law of 24 May 1929, no. 847), this concept of io. has relevance only for purely civil marriages and those celebrated before a minister of a religion recognized by the State (art. 83).