ABDUCTION (Matrimonial Impediment and Crime). - I. NOTION. - In its proper etymological meaning the term r. (from the Latin rapere) implies the concept of an abduction or transfer of a person from one place to another, carried out with violence, and embraces the kidnapping of either a man or a woman. In theological and juridical-canonical language, however, it has a narrower scope and (save for the exception of can. 2354 § 1 CIC) designates exclusively the r. of a woman.
Current canon law takes r. into consideration both as a crime (can. 2353) and as a diriment impediment to marriage (can. 1074).
As a crime, r. consists in the abduction of a woman, whether for the purpose of marrying her or of satisfying on her merely a carnal passion, and it can equally be a r. of violence, that is, carried out despite the refusal and against the will of the abducted woman, or a r. of seduction and a consensual r., that is, accomplished by extorting with deceit (tricks, frauds and flatteries) the consent of the abducted woman, or carried out on a minor woman personally consenting, but against the will or without the knowledge of her parents or guardians.
Considered conversely as a matrimonial impediment, r. consists in the abduction or violent detention of a woman for the precise purpose of marrying her. Its notion, therefore, does not coincide with that of r. as a crime, inasmuch as it embraces neither the r. of violence for the mere purpose of lust, nor the consensual r. or that of seduction; whereas conversely it extends, beyond abduction, also to the detention or violent sequestration of the woman, provided it is always for the purpose of marriage.
II. THE IMPEDIMENTUM RAPITUS
Confused until the Council of Trent with the impedimentum vis et metus, the raptus was instituted as a distinct and autonomous diriment impediment by that Council (sess. XIV, de reform. matrim., can. 6) at the requests and under the pressure of the civil authorities, and as such it has been preserved, with certain variations, in the CIC as well. It is currently regulated in can. 1074, which provides: § 1 "There can be no marriage between the abductor and the woman, abducted for the purpose of marriage, as long as the woman remains in the power of the abductor"; § 2 "The impediment ceases if the abducted woman, separated from the abductor and having come to a safe and free place, consents to take the abductor as her husband"; § 3 "For the purposes of the nullity of marriage, the violent retention of the woman is equated with the raptus, which occurs when the man violently keeps the woman, for the purpose of marriage, in the place where she is or to which she has freely gone."
The ratio of this impediment is placed by canonists tum ex praesumptione non consensus, tum in odium tanti facinoris. In reality, however, it may be held that its creation was due to the intention of satisfying, albeit only indirectly and for the gravest cases, the demand, so strongly advocated by the States during the Council of Trent, of obtaining that the Church invalidate marriages contracted by minors without the assensus parentum; marriages which were often arrived at precisely by means of the raptus of the minor girl from her father's house.
The nature of the impediment is one of mere ecclesiastical law and not of natural law (defect of consent of the abducted woman), as is shown by the fact that the raptus subsists as long as the abducted woman is in the power of the abductor even despite her free consent to the marriage. As such, it does not extend to unbelievers, unless their civil law or their customs also regard it as a diriment impediment.
For the impediment to occur, four conditions must concur: a) abductio seu retentio. It is required, that is, first of all that the abducted woman either be taken from one place to another, or be detained or sequestered in the very place where she was, but always against her will. The having equated with the abductio also the retentio mulieris and the having extended to the latter the vis irritans of the impediment is an innovation of the CIC with respect to Tridentine law and has served to overcome all the past casuistry concerning the diversity, distance, etc. of the place to which the abducted woman had to be transported for the element of the impediment to be present. b) Abductio seu retentio violenta. The raptus, whether in the form of true abduction or in that of the mere detention of the woman, must be violent, that is to say carried out despite the refusal and the contrary will of the abducted woman, having recourse either to physical force or to a moral coercion of such a nature as to engender in her a grave fear. For the raptus to be considered violent, however, it is enough that the woman either oppose the abduction or detention, while consenting to the marriage, or conversely refuse the marriage, while consenting to the abduction. Conversely, no relevance, at least in matrimonial matters, attaches either to the so-called raptus consensualis, that is the abduction of a minor woman consenting to it without the knowledge or with the dissent of her parents, exercising physical and moral violence upon them (raptus in parentes); or to the so-called raptus seductionis, that is the abduction of a woman whose consent to the abduction or to the marriage has been extorted by deceit through a fraudulent work of seduction. c) Abductio seu retentio mulieris a viro facta. Since, in terms of the legislative provision, the impediment is constituted specifically inter virum raptorem et mulierem raptam, it is necessary that the abductor be of the male sex and the abducted of the female sex: hence there will be no impediment (and it is difficult to offer a logical explanation of this) if a young man, even one of minor age and pusillanimous, is abducted with violence by an authoritarian woman. As regards, then, the person of the abductor, it is not necessary that he carry out the raptus personally; and, should he avail himself of the work of male or female material executors, the impediment is nonetheless constituted with respect to him, while it does not subsist in the reflections of his mandataries. As regards, finally, the person of the abducted woman, the impediment arises equally whatever her moral character and her social position (virgo, corrupta, honesta, inhonesta, meretrix) and even despite the fact that she is already betrothed to the abductor himself, so that today the classic ancient rule non fit raptus propriae sponsae must be considered abrogated. d) Abductio seu retentio intuitu matrimonii. The raptus, finally, must be carried out for the precise purpose of marrying the abducted woman and not for any other lawful or unlawful end. In case, however, of doubt concerning the actual intentions of the abductor, the doctrine is agreed that the raptus is always presumed (naturally by praesumptio iuris tantum) intuitu matrimonii, since in such a hypothesis the libertas matrimonii must prevail, and therefore, before permitting the celebration of a marriage in the case of raptus dubius, the parish priest must adhere to the prescription of can. 1031 § 1.
In terms of can. 1074 §§ 1-2, the matrimonial impediment continues to subsist until the woman is a raptore separata et in loco tuto ac libero constituta. No relevance, therefore, attaches to the fact that the woman, transported or sequestered in a determined place against her will, subsequently has the full possibility of fleeing and hence the freedom to withdraw from the potestas raptoris. Even if, in fact, the abductor has formally declared to her that he leaves her free to depart and the not doing so depends on her exclusive will, as long as the material objective condition of being in potestate raptoris subsists, the impediment preserves its irritant efficacy.
Conversely, according to can. 1074 § 2, the impediment ceases automatically if the abducted woman is a raptore separata et in loco tuto ac libero constituta and in such conditions consents to contract marriage with him.
Although rarely, moreover, and in practice almost exclusively in mission territories, it can also be made to cease by virtue of pontifical dispensation, given its nature as an impediment of mere ecclesiastical law; provided naturally that there is certainty that the abducted woman, although still in potestate raptoris, freely consents to the marriage with him.
III. THE CRIMEN RAPITUS
The Council of Trent, by making abduction [r.] a matrimonial impediment, had also struck both the abductor himself and all his accomplices with very grave penalties, declaring them ipso iure excommunicati ac perpetuo infames omniumque dignitatum incapaces; et si clerici fuerint, de proprio gradu decidant (sess. XXIV, De reform. matr., can. 6), referring however only to abduction by violence intuitu matrimonii.
The CIC [Code of Canon Law] regulated the matter ex novo in can. 2353, broadening on the one hand the notion of crimen raptus, that is, extending it both to abduction by violence and to that which is consensual and by seduction, and thus to abduction for the purpose of marriage as well as to that with the aim of mere lust; but on the other hand alleviating the penalties imposed for it, that is, limiting them: a) to the latae sententiae penalty of exclusion from legitimate ecclesiastical acts, as enumerated in can. 2256, n. 2; b) to those ferendae sententiae penalties determined case by case by the judge in proportion to the gravity of the offense committed.
Unlike the Council of Trent, the CIC does not mention accomplices, and this has led some canonists to consider themselves today exempt from any penalty. Considering, moreover, the general principle of can. 2231, it must be held that not only the instigator, but also all the principal and necessary cooperators are included in the penalties sanctioned against the abductor by can. 2353, and that the secondary accomplices themselves are at least subject to those penalties which the Superior shall deem fit to inflict upon them in relation to their responsibility and participation in the crime.
The CIC, finally, in can. 2354 also considers as a crime the raptus impuberum utriusque sexus for a purpose other than marriage or lust and, if the abductor is a layman, regards it as a delictum mixti fori and consequently accepts the penalties imposed by the civil magistrate upon the abductor, aggravating them with exclusion from legitimate acts and the loss of any munus, si quod in Ecclesia habeat, besides the obligation of making reparation for damages to the injured party; if on the other hand the abductor is an ecclesiastic, it regards it as a crime of its own exclusive competence on the basis of the privilegium fori competent to clerics and punishes it with penalties that can reach, depending on the gravity of the case, as far as deposition.