Impotence

IMPOTENCE. - I. (Latin impotentia) is the impossibility of doing something. Law and morality deal with the i. of man in the field of his duties, that is, with his impossibility of fulfilling the obligations arising from the law: an impossibility that can be either physical or moral (v. INCOMODO).

In a more technical sense, however, the term here indicates the diriment impediment of Matrimony, which consists in conjugal incapacity, that is, in the impossibility of performing the conjugal act.

I. NOTION

To start from certain facts, it is universally admitted that by conjugal capacity is meant the capacity for the copula coniugalis, which implies coitus that is not a mere contact of organs, but a true sexual act or motion. Disagreements begin when it comes to determining the nature of this motus sexualis. On the other hand, despite some opinion to the contrary (A. Gemelli, De conceptus « impotentiae coëundi » definitione sub respectu medicinae pastoralis, Milan 1928), the conditions of the copula must be considered in relation to scientific progress, whereby it is possible that remedies and cures once out of the ordinary may later become ordinary or, from impossible, possible. Thus with progress it has come about that an ordinary medical intervention today renders capable of normal conjugal life individuals for whom formerly, in those same conditions, such activity was precluded; hence the juridical principle holds: that which without grave inconvenience (danger to life) can be removed does not constitute i. In this way the ethical-juridical order is not disturbed, because progress does not come to touch the right, but the object of the right, constituting as an object of right what in the past was not.

This premised, it is opportune to note at once that the CIC does not give a definition of i., but sanctions only certain general principles. It requires on the one hand the right (ius ad actus per se aptos ad prolis generationem, can. 1081 § 2), but on the other hand declares « sterilitatem Matrimonium nec dirimere, nec impedire » (can. 1068 § 3), and that Matrimony must not be impeded in case of doubtful i. (can. 1068 § 2), whether it be a doubt of law or of fact (iuris vel facti). From this two conclusions follow: a) that the CIC did not wish to settle the controversy that exists between theologians and canonists on the juridical nature of i.; b) that, given the theoretical controversy, in practice one may follow in doubtful points the sentence that favors the ability to marry.

II. HISTORY OF THE IMPEDIMENT OF IMPOTENCE

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

In ecclesiastical law the first mention of the impediment of i. is from the 7th 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), slightly later (726), is of disputed interpretation. But the doctrine of Theodore's Penitential passed into the Frankish Councils of the 8th century (Council of Verberie, can. 17 (756); Compiègne, can. 20 (757); Salzburg, can. 15 (800). The supporters of the copula theory, Hincmar first and Gratian later, regarded i. more as a cause for dispensation from Marriage than of nullity (dictum Gratiani, in C. 39, q. 1). Peter Lombard, of the opposing school (consensual theory), on the other hand recognizes i. as a cause of nullity, but only if it is unknown to the other spouse (Sentent., IV, dist. 34, A).

For a certain time, that is until the 12th century, given these uncertainties, the Roman Church was accustomed in cases of i. to require that the spouses cohabit 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 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 introduced from Germanic law, as proof, the so-called testimony of the septima manus, the bodily inspection of the woman (c. 2, 5, 7, C. 33, q. 1), which doctrine extended also to the man. The casuistry of the doctors developed from the 12th century onward, determining the cases of i. of the man and of the woman and holding as true i. only that which was reduced to i. coëundi. They admitted, among other things, also i. arising ex maleficio, finding support moreover in the very sources of law (c. 4, C. 33, q. 1).

Particular importance in determining the concept of i. is assumed by 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 about the lawfulness of the Marriages of eunuchs and of spadones. The Pontiff responds negatively, ordering indeed that those who had already contracted the bond be separated, the bond being declared null, void and invalid. The pontifical response is very clear for the specific case submitted for decision, but its application to the general problem of the definition of i. is still a matter of controversy. Moreover, while it determines the limits of i. in the man, it says nothing regarding the woman. Benedict XIV, with the constitution Dei miseratione of 3 Nov. 1741, ordered ex novo the procedure for causes of i., a procedure that has received further adjustments from the CIC and from the constitutions of the Sacred Congregations, before and after the CIC (cf. Sacred Congregation of the Council, 22 Aug. 1840; Holy Office, 6 Aug. 1890, etc.).

III. NATURE OF IMPOTENCE

Everyone admits that impotence is a diriment impediment to Marriage by natural law; natural, it is said, not only because it is inherent in the nature of things, but also because it is discerned by reasoning (Sum. Theol., 2ᵃ-2ᵃ, q. 57, a. 2). Impotence means the lack of the capacity to render that "ius" which is by nature commensurate between man and woman, in order to the generation of children; the ius matrimoniale, which is the object of the marriage contract itself.

In the generation of man one may distinguish a voluntary human action (copulation with effusion of seed into the vagina) and an action entrusted to the play of physiological conditions and mechanisms that unfold involuntarily according to the activity of nature. This second action, although it is in part also the man's, is proper above all to the woman and consists in the assistance in relation to two moments of the mechanism of reproduction, copulation and fecundation. The insufficiency of the procreative faculty can take the form of impotence for coitus (impotentia cohundi) and impotence to generate (impotentia generandi), taken in the strict sense of sterility. Human action stops at coitus; what happens afterwards does not depend on the spouses, but on the uncontrolled play of the forces of nature. Thus, today it is commonly admitted that impotence exists when on the part of the man there is lacking any one of the essential moments of the actualization of the procreative faculty, nor does artificial fecundation (v.), strictly understood, suffice.

But the controversy begins when it comes to determining the nature both of coitus and of the sexual impulse, the authors obeying two different criteria. Some, orienting themselves rather to the concept that marriage is a right of nature, to be excluded only in those who have the capacity to attain neither the primary nor the secondary end of Marriage, incline to extend physical capacity and to reject the limits of impotence (theoria sterilitatis). Others, on the other hand, looking above all to the primary end and, more than to the conjugal act in itself, to the efficiency of the procreative faculty, tend to broaden the concept of impotence (theoria impotentiae).

IV. PRINCIPAL CASES OF IMPOTENCE

Turning to the concrete determination, I. must be considered separately in man and in woman.

1) In man. — I. for copulation in man can be brought about by functional defects in the various stages of the act of copulation or by anatomical anomalies of the copulatory organ.

Among the functional forms, those of a psychic nature must be distinguished from those of a nervous nature. One speaks of I. of a psychic nature when the cause is bound to sexual insensibility (frigidity) or to inhibitory psychic stimuli which, starting from the higher nerve centers, block the spinal sexual reflexes (obsessive fear of incapacity, extraneous worries, fear of surprise, strong antipathy, disgust, or previous grave sexual aberrations, in which case particular prudence will be needed in possibly advising marriage as a remedy).

One speaks instead of nervous I. when the cause resides in true anatomical alterations that have affected the sexual nerve pathways and centers; at times serious, at times so slight as to escape superficial investigation, with a causal and symptomatic complex that appears to be only of psychic origin. Thus the forms bound to profound exhaustion of the sexual centers of the spinal cord, consequent upon a primitive state of nervous eroticism, intense sexual abuse; thus in diabetes; more demonstrable are the lesions in chronic alcoholism. In tabes dorsalis and in general paralysis or paralytic dementia, both bound to syphilis, as the disease progresses the I. is bound to a true destruction of the spinal nerve centers. An opposite state of psychic hyperexcitability, with extreme facility for the nervous provocation of the sexual reflexes, can lead to eiaculatio praecox, a cause of I. through untimely emission of the seed, a form susceptible of cure.

As regards organic I. in man, it is easily understood how the complete absence of the copulatory organ entails the absolute and incurable impossibility of copulation. This is what happens, for example, in those cases in which the organ remained mutilated for traumatic causes or had to be removed for medical reasons (cancer, tuberculosis, etc.). Such an absence can moreover be congenital, presenting all the cases of more or less marked reduction in the development of the organ, up to its absolute absence; an anomaly which represents the defect in the highest incurable degree of the procreative activity, also because such an anomaly of the external genitals is often associated with malformations equally serious with regard to the deeper sexual organs. Quite often, however, a question of relativity arises, for which the work of an expert is required, who can indicate whether, in the special case, that particular development is or is not compatible with the function of the organ.

2) In woman. — Here too the I. can be functional or organic; it must be said at once, however, that, in relation to the conditions of greater passivity of the woman in copulation, the functional form becomes less important in comparison with that dependent on anatomical causes.

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

One must recall furthermore vaginismus, that is, the spastic, painful contraction of the musculature of the vagina such as not to permit copulation. Vaginismus must be considered as a functional impediment to copulation, although at times it rests on anatomical causes, such as irritations of the external genitals, slight fissures of the mucosa (rhagades), suppurative inflammatory processes (blennorrhagia), from which painful stimuli depart that, exacerbated in the attempt at copulation by reflex action, provoke the spastic contraction of the muscles proper to the genital apparatus. Vaginismus almost never constitutes an incurable cause of I. since, with relative ease, it can be overcome by psychic or physical treatments.

V. REQUIREMENTS OF DIRIMENT IMPOTENCE AND TREATMENT OF THE MARRIAGES OF IMPOTENT PERSONS

For the purpose of the diriment effect of impotence, it does not matter whether the impotence is on the part of the man or of the woman, whether or not it is known to the other spouse. Thus the ancient controversies fall away (Sum. Theol., Suppl., q. 52, a. 1), by now of little more than historical interest: it is clear in fact that the impotent person, precisely because he is such, 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 is enough that it be relative (that is, limited to the person with whom the Marriage was contracted): the effect is in fact the same; in that Marriage the rendering of the conjugal debt is not possible, and therefore the object of the contract is lacking.

Nor again is it of any interest whether the origin of the impotence is of a functional nature (psychic or nervous) or organic; at most the origin may shed light on the other characteristics of the impotence. In order to be effective for the purpose of invalidating the Marriage, the impotence must be antecedent to the celebration (impotence supervening afterward is not relevant), perpetual, that is, incurable without danger of death (can. 1668 § 1). In order to prevent and still more in order to have declared null a marriage already celebrated, it is required that the impotence be certain, at least with moral certainty. Doubtful impotence, as has been said, is not relevant (can. 1668 § 2), neither before contracting Marriage in order to prevent it, nor, once Marriage has been contracted, in order to render it null, whether it be a doubt of law or of fact. Morally, however, it is obligatory to remove as far as possible every doubt before proceeding to the celebration; and, should the doubt remain, it is obligatory to inform the other party of it.

Once the Marriage has taken place, if the certain impediment of impotence subsists and the normal erotic relation is therefore not possible, every other satisfaction of the senses is unlawful for the pseudo-spouses. These, however, may be left in good faith, should there exist, if grave inconveniences were foreseen from the dissolution of the Marriage, and should the impediment be occult and therefore the fact not be a cause of scandal. If instead they are in bad faith, they must be admonished to separate, or, if separation were morally impossible, they must be enjoined to live in perfect continence, as brother and sister, supposing that there is no danger of sinning for them, nor scandal for others.

In the ordinary cases of certain antecedent and perpetual impotence, the separation "quod torum" must be made at once by the pseudo-spouses themselves: separation of residence may also be made on their own private initiative, if there is no danger of scandal: indeed it must be made, whenever there is the danger of incontinence. Ordinarily, however, since the danger of scandal for the separation of residence subsists, it is necessary to await the intervention of the competent ecclesiastical authority. The authentic declaration of the 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 the impotence and of its requirements of priority in relation to the Marriage and of perpetuity is based both on the confessions of the spouses, and on medical investigations (cans. 1976-82; v. PERITI), and on the testimonies of the so-called "septimae manus" (can. 1975), and on the analysis of every other element of indirect and presumptive proof, from whose ensemble the judge must arrive at moral certainty of the actual existence of the impediment. This done, the judge issues the sentence of nullity, and the party who is sexually capable may contract a new marriage, as soon as the procedural formalities required for liceity have been completed.

Sometimes the judge, being unable to reach juridical proof of the impotence, may stop even at merely gathering the proofs of the non-consummation of the Marriage, afterward transmitting the acts to the authority competent in procedures of this kind (can. 1963 § 2; v. MATRIMONIO). If neither the one nor the other proof can be reached, the ministry of the judge ceases, and the Marriage remains valid in the external forum. At most, the personal, temporary separation of the spouses may be granted, if the prolongation of the living together in conditions of sexual impairment of the spouses or of one of them constitutes a grave danger for the soul or the body of one or of both (can. 1131 § 1). There remain the problems of the internal forum concerning the ordering to be given to the conjugal living together and to the use of Marriage, problems that each must resolve, questioning his own conscience and persons of counsel, among whom in the first place the confessor. As a general criterion, the following norm, rather common among moralists, may be considered: the attempt at the sexual act may be made, provided there is some hope of success, at least initial, even if the act will certainly be non-prolific, and provided the spouses intend to do what is possible so that the act succeed in the best possible way. Also permitted are the so-called imperfect acts, which serve to keep affection alive between the spouses, provided there is no proximate danger of pollution or at least (in cases of necessity) of consent to the same. In these cases artificial insemination (v.), taken in a broad sense, is admitted by some as probable, by others as certain, because the conjugal act takes place in hypothesis, or an attempt is made to carry it out according to the manner ordained by nature, not subverting the order, but only assisting it.

VI. IMPOTENCE AS PROOF OF NON-CONSUMMATION OF MARRIAGE: v. MATRIMONIO.

VII. IMPOTENCE IN THE ITALIAN CIVIL CODE

Impotence as considered by the Italian Code may also be organic or functional, and the concept also includes psychic impotence. Article 123 of the Code states: "Perpetual impotence, whether absolute or relative, when it is antecedent to the marriage, may be put forward as a cause of nullity by either spouse. Impotence to generate may be put forward 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 the Civil Code of 1865 provided (art. 107), which limited itself to declaring impotence a cause of annulment of the marriage when it was manifest, perpetual and antecedent to the marriage itself.

It was debated whether the impotence thus contemplated was only that of coëundi or also that of generandi, although the most widespread and correct opinion held that only impotence of coëundi was a cause of annullability. The wording of art. 123, if it has not removed all grounds for discussion, has nonetheless limited them.

Compared with the previous Code, the innovation is that impotence of coëundi may be put forward as a cause of nullity even by the impotent spouse; while the mention that the impotence must be manifest has been suppressed, taking into account the fact that improved means of medical investigation today make it possible to ascertain impotence even when it is not manifest.

But the most important innovation is that contained in the 2nd paragraph of the article, which allows impotence to generate to be put forward as a cause of nullity of the marriage "if one of the two spouses lacks the organs necessary for generation."

It must first of all be noted that, where the lack of such organs produces as a consequence the impossibility of sexual union, the marriage is annullable for impotence of coëundi, that is, in accordance with the rules of the 1st paragraph.

That said, it cannot be said that the 2nd paragraph, whose formulation, during the reform of the Code, was much debated and laborious, has opened the way to settled solutions.

In doctrine as well as in jurisprudence, indeed, it is debated whether the impotence to generate of which the Italian legislator speaks is to be understood in a strict sense, such that it should be recognized only when the organs necessary for generation are entirely lacking (for natural causes or otherwise) or their imperfection is such as to be equated with non-existence; or whether it should not be interpreted more broadly, so as to include the lack of functional capacity. If one were to adhere to the first interpretation, one could say that the Italian legislator is fairly close to what is the canonistic doctrine (and this is what the report of the Keeper of the Seals to the 1st [book] of the Code wished to emphasize), since the notion of impotence of generandi adopted would tend to coincide with the canonistic notion of impotence of coëundi (insofar as, in practice, only the case of the mulier excita would fall within it, the lack of the organs necessary for generation in the man producing, as has been rightly observed, impotence of coëundi). But a fairly widespread jurisprudential current is inclined to interpret the 2nd paragraph broadly, including within it cases of mere functional impotence to generate.

In any case, since questions concerning the validity of concordatary marriages are reserved to the competence of the ecclesiastical judge (and for those celebrated with the double rite prior to the Concordat, the parties being free to raise the question of nullity of the civil bond or to avail themselves of the faculty referred to in art. 22 of the law of 24 May 1929, no. 847), this concept of impotence is relevant only for the exclusively civil marriage and for that celebrated before a minister of a cult admitted in the State (art. 83).

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

Giuseppe de Ninno-Pietro Palazzini