Impotence

IMPOTENZA. — I. (Latin impotentia) is the impossibility of doing something. Law and morality concern themselves with man’s i. in the sphere of his duties, that is, with his inability to fulfill obligations arising from the law: an impossibility that may be either physical or moral (v. INCOMODO).

In a more technical sense, however, the term here denotes the diriment impediment to Marriage, consisting in conjugal incapacity, that is, the inability to perform the conjugal act.

I. NOTION

To begin with certain established facts, it is universally acknowledged that conjugal capacity means the capacity for the copula coniugalis, which entails intercourse that is not merely a contact of the organs, but a true sexual act or movement. Disagreements begin when it becomes necessary to determine the nature of this motus sexualis. On the other hand, notwithstanding some contrary opinion (A. Gemelli, De conceptus « impotentiae coëundi » definitione sub respectu medicinae pastoralis, Milano 1928), the conditions of intercourse must be considered in relation to scientific progress, such that remedies and treatments once considered extraordinary may later become ordinary or, from impossible, become possible. Thus, with progress, it has come about that an ordinary medical intervention can today render capable of normal married life individuals for whom, in the same conditions, such activity was formerly precluded; hence the juridical principle applies: that does not constitute i. which can be removed without serious inconvenience (danger to life). In this way the ethical-juridical order is not disturbed, because progress does not affect the right, but the object of the right, making an object of right what previously was not one.

With this premise, it should immediately be noted that the CIC does not provide a definition of i., but merely establishes certain general principles. On the one hand, it recognizes the right (ius ad actus per se aptos ad prolis generationem, can. 1081 § 2), but on the other hand declares that « sterilitatem Matrimonium nec dirimere, nec impedire » (can. 1068 § 3), and that Matrimony is not to be impeded in a case of doubtful i. (can. 1068 § 2), whether the doubt concerns law or fact (iuris vel facti). From this follow two conclusions: a) that the CIC did not intend to settle the controversy existing among theologians and canonists concerning the juridical nature of i.; b) that, given the theoretical controversy, in practice, in doubtful cases, one may follow the opinion favoring capacity for Matrimony.

II. HISTORY OF THE IMPEDIMENT OF I

Roman law does not appear ever to have considered i. as a cause of nullity, but only as a cause of divorce. The text of Ulpian (lib. 39, § 1, D, de iur. vot., XXIII, 3), which seems to assert the contrary with regard to eunuchs, is regarded as the expression of an individual opinion. The same may be said of Germanic law: divorce was the means of resolving any questions that might arise in this matter.

In ecclesiastical law, the first reference to the impediment of i. dates from the seventh century (Poeniteniale Theodori; ed. H. J. Schmitz, Die Bussbücher u. die Bussdisciplin der Kirche, I, Mainz 1883, p. 547). The text of Gregory II (c. 18, C. 32, q. 7), only slightly later (726), is of disputed interpretation. But the doctrine of Theodore’s Penitential passed into the Frankish Councils of the eighth century (Council of Verberie, can. 17 (756); Compiègne, can. 20 (757); Salzburg, can. 15 (800). The proponents of the copula theory, first Hincmar and later Gratian, regarded i. more as a cause for dispensation from Marriage than as a cause of nullity (dictum Gratiani, in C. 39, q. 1). Peter Lombard, of the opposing school (the consensual theory), on the other hand, recognized i. as a cause of nullity, but only if it was unknown to the other spouse (Sentent., IV, dist. 34, A).

For a certain period, namely until the twelfth century, in view of these uncertainties, the Roman Church ordinarily required, in cases of i., that the spouses live together as brother and sister (capp. 2, 4. Compil., I, IV, 16). From the time of Alexander III onward, the practice of the Frankish Councils was also introduced into the Church, with the declaration of the nullity of the Marriages of impotent persons (cap. 2, Compil., I, IV, 16). This practice was introduced into the Decretals of Gregory IX, which, however, required a three-year trial (c. 5, X, de frigid., IV, 15), and also adopted from Germanic law, as evidence, the so-called testimony septimae manus, the bodily examination of the woman (c. 2, 5, 7, C. 33, q. 1), which doctrine extended to the man as well. The casuistry of the doctors developed from the twelfth century onward, determining the cases of i. in men and women and considering only that i. which amounted to i. coëundi to be genuine. Among other things, they also admitted i. arising ex maleficio, finding support for it in the sources of the law themselves (c. 4, C. 33, q. 1).

The constitution of Sixtus V Cum frequenter, dated 27 June 1587, addressed to the bishop of Novara, nuncio at the Spanish court, who had consulted him concerning the lawfulness of the Marriages of eunuchs and spadones, is of particular importance in determining the concept of i. The Pontiff replied in the negative, indeed ordering the separation of those who had already contracted the bond, which was declared null, void, and invalid. The papal response is entirely clear with regard to the specific case submitted for decision, but its application to the general problem of defining i. remains the subject of controversy. Moreover, while it determines the limits of i. in men, it says nothing concerning women. Benedict XIV, in the constitution Dei miseratione of 3 November 1741, ordered ex novo the procedure for cases of i., a procedure that has subsequently undergone further adjustments through the CIC and the constitutions of the SS. Congregations, both before and after the CIC (cf. S. Congregation of the Council, 22 Aug. 1840; Holy Office, 6 Aug. 1890, etc.).

III. NATURE OF I

All agree that i. is an impediment that invalidates Marriage by natural law; it is called natural not only because it is inherent in the nature of things, but also because it is recognized through reasoning (Sum. Theol., 2ᵃ-2ᵃ, q. 57, a. 2). I. means the lack of the capacity to render that “right” which, by nature, is proportioned between man and woman with a view to the generation of children: the ius matrimoniale, which is the object of the matrimonial contract itself.

In human generation, one may distinguish a voluntary human action (copulation with the emission of semen into the vagina) and an action entrusted to the interplay of physiological conditions and mechanisms that unfold involuntarily according to the activity of nature. Although this second action is partly also that of the man, it belongs above all to the woman and consists in assistance with regard to the two moments of the mechanism of reproduction, copulation and fertilization. Insufficiency of the procreative faculty may take the form of i. in intercourse (impotentia cohundi) and i. in generating (impotentia generandi), understood in the strict sense of sterility. Human action ends with copulation; what occurs afterward does not depend on the spouses, but on the uncontrolled interplay of the forces of nature. Thus, it is commonly admitted today that i. exists when, on the part of the man, one of the essential stages in the exercise of the procreative faculty is lacking, and that even artificial fertilization (v.), strictly understood, is not sufficient.

The controversy begins, however, when it comes to determining the nature both of intercourse and of sexual activity, the authors following two different criteria. Some, orienting themselves rather toward the concept that marriage is a right of nature, to be excluded only in one who lacks the capacity to attain either the primary or the secondary end of Marriage, incline to extend physical capacity and reject the limits of i. (theoria sterilitatis). Others, by contrast, looking chiefly to the primary end and, more than to the marital act in itself, to the efficacy of the procreative faculty, tend to broaden the concept of i. (theoria impotentiae).

IV. PRINCIPAL CASES OF IMPOTENCE

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

1) In men. — Impotence to perform intercourse in men may be caused by functional defects at the various stages of the act of intercourse or by anatomical anomalies of the copulatory organ.

Among the functional forms, psychogenic and nervous forms must be distinguished. Impotence is said to be of a psychogenic nature when the cause is connected with sexual insensitivity (frigidity) or with inhibitory psychic stimuli which, arising from the higher nervous centres, block the spinal sexual reflexes (an obsessive fear of incapacity, unrelated preoccupations, fear of being surprised, strong antipathy, disgust, or serious previous sexual aberrations, in which case particular prudence will be required in possibly recommending marriage as a remedy).

Nervous impotence, on the other hand, is said to exist when the cause lies in actual anatomical alterations affecting the sexual nerve pathways and centres. These may sometimes be severe, and at other times so slight as to escape a superficial examination, with a causal and symptomatic complex that appears to be of purely psychogenic origin. Such are the forms associated with profound exhaustion of the sexual centres of the spinal cord, following a primary state of nervous eroticism and intense sexual abuse; likewise in diabetes. The lesions are more demonstrable in chronic alcoholism. In tabes dorsalis and progressive paralysis, or paralytic dementia, both associated with syphilis, as the disease progresses impotence is connected with the actual destruction of the spinal nerve centres. An opposite state of psychic hyperexcitability, with extreme susceptibility to the nervous provocation of sexual reflexes, may lead to eiaculatio praecox, a cause of impotence through the untimely emission of semen, a form amenable to treatment.

As regards organic impotence in men, it is readily understood that the complete absence of the copulatory organ entails absolute and incurable inability to perform intercourse. This occurs, for example, in cases where the organ has been mutilated through traumatic causes or has had to be removed for medical reasons (cancer, tuberculosis, etc.). Such absence may also be congenital, encompassing all cases of more or less pronounced underdevelopment of the organ, up to its complete absence. This anomaly represents the highest and incurable degree of impairment of procreative activity, also because such an anomaly of the external genitalia is often accompanied by equally serious malformations of the deeper sexual organs. Very often, however, a question of relativity arises, making the intervention of an expert necessary, so that he may determine whether, in the particular case, the given degree of development is compatible or incompatible with the function of the organ.

2) In women. — Here too, impotence may be functional or organic; it must immediately be said, however, that, in view of the woman’s greater passivity in intercourse,

the functional form becomes less important than that dependent on anatomical causes.

Among the forms of psychogenic origin, mention should be made of insurmountable horror or repugnance toward the sexual act. This, naturally, is understood in the marital state, in which relations may take place under lawful conditions; it may be connected with states of mental disturbance, a misunderstood sense of modesty, ignorance of the physical purpose of Marriage and of the mutual physical duties of the spouses.

Vaginismus must also be mentioned, that is, the painful spasmodic contraction of the musculature of the vagina, such as to prevent intercourse. Vaginismus should be regarded as a functional impediment to intercourse, although it is sometimes based on anatomical causes, such as irritations of the external genitalia, slight fissures of the mucous membrane (fissures), and suppurative inflammatory processes (gonorrhoea), from which painful stimuli arise which, becoming aggravated during an attempted act of intercourse by reflex action, provoke the spasmodic contraction of the muscles proper to the genital apparatus. Vaginismus almost never constitutes an incurable cause of impotence, since it can be overcome with relative ease by psychological or physical treatment.
V. REQUIREMENTS OF THE

I. AS A DIRIMENT IMPEDIMENT AND TREATMENT OF THE MARRIAGES OF IMPOTENT PERSONS

For the purposes of the diriment effect of i., it does not matter whether the i. is on the part of the man or of the woman, or whether it is known or unknown to the other spouse. Thus ancient controversies (Sum. Theol., Suppl., q. 52, a. 1), now of more than anything else merely historical interest, fall away: it is clear, in fact, 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 i. is absolute, that is, toward all persons of the other sex; it is sufficient that it be relative (that is, limited to the person with whom the Marriage has been contracted): the effect, in fact, is the same; in that Marriage the rendering of the conjugal debt is impossible, and therefore the object of the contract is lacking.

Nor is it relevant whether the origin of the i. is functional (psychic or nervous) or organic; at most, its origin may shed light on the other characteristics of the i. In order to be effective for the purposes of the diriment impediment of Marriage, the i. must precede the celebration (subsequent i. is not relevant) and be perpetual, that is, incurable without danger of death (can. 1668 § 1). To prevent a Marriage, and still more to have an already celebrated Marriage declared null, the i. must be certain, at least with moral certainty. Doubtful i., as has been said, is not relevant (can. 1668 § 2), either before contracting Marriage, in order to prevent it, or after Marriage has been contracted, in order to render it null, whether the doubt concerns law or fact. Morally, however, it is obligatory, if possible, to eliminate every doubt before proceeding to the celebration; and, if the doubt remains, it is obligatory to inform the other party of II.
Once the Marriage has taken place, if the certain impediment of i. exists and normal sexual intercourse is therefore impossible, every other sensual gratification is illicit for the pseudo-spouses. They may, however, be left in good faith, if they are in it, when serious disadvantages would otherwise be foreseen from the dissolution of the Marriage and when the impediment is occult and therefore the fact is not a cause of scandal. If, on the other hand, they are in bad faith, they must be admonished to separate; or, if separation were morally impossible, they must be required to live in perfect continence, as brother and sister, provided that there be neither danger of their sinning nor scandal for others.

In the ordinary cases of certain, antecedent, and perpetual i., separation «quod torum» must immediately be effected by the pseudo-spouses themselves: separation of residence may likewise be effected on their own private initiative, if there is no danger of scandal; indeed, it must be effected when there is a danger of incontinence. Ordinarily, however, when separation of residence would entail a danger of scandal, it is necessary to await the intervention of the competent ecclesiastical

authority. The authentic declaration of the nullity of Marriage can in any case be given only by the ecclesiastical judge, and the interested parties must therefore have recourse to his office. The ascertainment of the i. and of its requirements of priority with respect to Marriage and of perpetuity is based both on the confessions of the spouses and on medical investigations (cann. 1976-82; V. PERITI), on the so-called «septimae manus» testimonies (can. 1975), and on the analysis of every other indirect and presumptive item of evidence, from the totality of which the judge must arrive at moral certainty of the actual existence of the impediment. This having been done, the judge issues the sentence of nullity, and the sexually capable party may contract a new marriage as soon as the procedural formalities required for liceity have been completed.

At times the judge, being unable to obtain juridical proof of the i., may confine himself to gathering proof of the non-consummation of the Marriage, then transmitting the acts to the authority competent in such procedures (can. 1963 § 2; V. MATRIMONIO). If neither one proof nor the other can be obtained, the judge’s office comes to an end, and the Marriage remains valid in the external forum. At most, the personal and temporary separation of the spouses may be granted if the continuation of cohabitation under conditions of sexual impairment of the spouses, or of one of them, constitutes a grave danger to the soul or body of one or both (can. 1131 § 1). Questions concerning the internal forum remain regarding the regulation of married life and the use of Marriage—questions which each person must resolve by consulting his or her own conscience and persons of counsel, foremost among them the confessor. A general criterion may be considered to be the following norm, rather common among moral theologians: 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 not be procreative, and provided that the spouses intend to do everything possible for the act to succeed in the best possible manner. The acts known as imperfect acts are likewise permitted, since they help to keep affection alive between the spouses, provided that there is no proximate danger of emission or at least (in cases of necessity) of consent thereto. In these cases artificial insemination (v.), understood in the broad sense, is admitted by some as probable, by others as certain, because the conjugal act takes place, or is sought to take place, according to the manner ordained by nature, without overturning the order, but merely assisting II.

VI. I. AS PROOF OF THE NON-CONSUMMATION OF MARRIAGE: V. MATRIMONIO.

VII.

I. IN THE ITALIAN CIVIL CODE

The i. considered by the Italian Code may likewise be organic or functional, with psychological i. also included in this concept. Article 123 of the Code states: “Perpetual i., whether absolute or relative, when preceding the Matrimony, may be invoked as grounds for nullity by either spouse. I. to procreate may be invoked as grounds for nullity of the Matrimony only if one of the two spouses lacks the organs necessary for procreation, etc.”

This article introduced a change with respect to the provisions of the Civil Code of 1865 (art. 107), which limited itself to declaring i. a ground for annulment of the Matrimony when it was manifest, perpetual, and anterior to the Matrimony itself.

It was debated whether the i. contemplated therein was only coëundi or also generandi, although the more widespread and correct opinion held that only i. coëundi constituted grounds for annulability. The wording of article 123, while not removing all grounds for debate, did limit them.

Compared with the preceding Code, a change was introduced in the sense that i. coëundi may be invoked as grounds for nullity even by the impotent spouse; whereas the mention that the i. must be manifest was suppressed, in view of the fact that improved means of medical investigation now make it possible to ascertain i. even when it is not manifest.

But the most important innovation is that contained in the second paragraph of the article, which admits that i. to procreate may be invoked as grounds for nullity of the Matrimony “if one of the two spouses lacks the organs necessary for procreation.”

It should first be noted that, where the absence of such organs results in the impossibility of sexual union, the Matrimony is annullable on the grounds of i. coëundi, thus in accordance with the rules of the first paragraph.

That being said, it cannot be claimed that the second paragraph, whose formulation was the subject of considerable and laborious debate during the reform of the Code, has opened the way to peaceful solutions.

Both in doctrine and in jurisprudence, it is debated whether the i. to procreate of which the Italian legislator speaks is to be understood in the strict sense—namely, as occurring only when the organs necessary for procreation are entirely absent (whether for natural causes or otherwise), or when their imperfection is such that it may be equated with nonexistence—or whether it should not be interpreted more broadly, so as to include the absence of functional capacity. If the first interpretation were followed, it could be said that the Italian legislator is fairly close to the canonistic doctrine (and this is what the report of the Minister of Justice on the I. of the Code sought to emphasize), since the notion of i. generandi adopted would tend to coincide with the canonistic notion of i. coëundi (inasmuch as, in practice, it would include only the case of mulier excita, the absence in a man of the organs necessary for procreation producing, as has rightly been observed, i. coëundi). But a fairly widespread current of jurisprudence is inclined to interpret the second paragraph broadly, including cases of simple functional i. to procreate.

In any event, since questions concerning the validity of concordat Matrimonies are reserved to the jurisdiction of the ecclesiastical judge (and, for those celebrated with the double rite prior to the Concordat, since the parties are free either to raise the question of the nullity of the civil bond or to avail themselves of the faculty provided by art. 22 of law no. 847 of 24 May 1929), this concept of i. has relevance only for the exclusively civil Matrimony and for that celebrated before a minister of a religion recognized by the State (art. 83).

BBL.: It is extremely extensive. For the doctrine and bibliography preceding the CIC, cf. J. Rossi, De impedimento impotentiae, Rome 1910; B. Gietti, Synopsis rerum maralium et iuris pontificii, 3rd ed., there 1913, cols. 2219–87. After the CIC, A. De Smet, Impultrame, in DThC, VII, cols. 1431–41; G. Arendt, Circa controversam validitatem Matrimoni feminae recitae, Rome 1923; id., De absoluta habilitate sterilium ad Matrimonium, in Ius pontificium, 5 (1925), pp. 77–93; id., Occlusio vaginae estne causa impotentiae an steriliatis?, in Periodica de re marali, can., lit., 14 (1926), pp. 54–66; G. Oesterle, Circa controversam validitatem Matrimonii feminae recitae obloquenti amicabile responsum, in Ehem. theol. Lavan., 3 (1926), pp. 513–18; I. Claes, De impedimento matrimoniali impotentiae, in Collectanea Mechliniensia, 16 (1927), pp. 410–25; A. Gemelli, De conceptus impotentiae coëundi definitione tale respectu medicinae pastoralis, in Studi dedicati alla memoria di P. P. Zanzucchi, Milan 1928, p. 411 ff.; D. M. Prümmer, De genuina notione impedimenti impotentiae, in Ius pontificium, 9 (1929), pp. 214–18; I. Antonelli, Medicina pastoralis, 5th ed., III, Rome 1932, pp. 16–140; I. Hollstein, Die Spruchpraxis der S. Rossana Rota in Ehemichtigheidspraxisen, Freiburg im Breisgau 1934, passim; E. Albertario, Matrimonio e filiazione nel nuovo Codice civile, in Bollestina del Circolo giuridico di Milano, 3–4 (1939), p. 34 ff.; C. Rebuttati, in Commentario al Codice civile, I. I., directed by M. d’Amelio, Florence 1940, p. 351 ff.; A. C. Jemolo, Il Matrimonio nel diritto canonico, Milan 1941, p. 101 ff.; P. F., Prova dell’i. e dell’inconsumazione del Matrimonio, in Archivio di diritto eccl., 4 (1942), pp. 400–403; M. Sinopoli, Considerazioni sull’i. psicologica come causa dirimente del Matrimonio can., in Il diritto eccl., 24 (1943), pp. 147–156; F. Degni, Il diritto di famiglia nel nuovo Codice civile italiano, Padua 1943, p. 159 ff.; V. PALMIRA, Ginecologia forense, Città di Castello-Bari 1945, pp. 314–92; id., Medicina legale canonistica, there 1946, pp. 66–115; I. Morr-N. Markar-Markaroff - V. Pospisil-Kaisersschwert, Ehemichtigheidspraxis, Prague 1945, pp. 21–38; V. GIUDICE, Il Matrimonio nel diritto canonico e nel diritto concordatario italiano, Milan 1946, passim; C. Gangi, Il Matrimonio, 2nd ed., there 1947, p. 68 ff.; A. Niedermeyer, Ehe und Sexualleben, Handbuch der speciellen

Pastoralmedizin, II, Vienna 1949, passim, especially pp. 181–352 (with further bibliography); P. Cerato, Le controversa i femminili al Matrimonio, Padua 1949 (with extensive bibliography).

Giuseppe de Ninno-Pietro Palazzini