RATTO (Matrimonial impediment and crime of). —
I. NOTION
In its proper etymological meaning, the term r. (from the Latin rapere) implies the concept of the abduction or transfer of a person from one place to another, carried out by force, and encompasses the abduction of both man and woman. In theological and juridical-canonical language, however, it has a more restricted scope and (apart from the exception of can. 2354 § 1 CIC) designates exclusively the r. of a woman.Current canon law considers r. 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 for the purpose either of marrying her or merely of satisfying a carnal passion upon her, and may equally be r. by force, that is, carried out despite the refusal and against the will of the abducted woman, or r. by seduction and consensual r., that is, carried out by fraudulently extorting the abducted woman’s consent (through deception, fraud, and blandishments), or carried out upon a minor woman who personally consents, but against the will or without the knowledge of her parents or guardians.
Conversely, considered as a matrimonial impediment, r. consists in the forcible abduction or detention of a woman for the specific purpose of marrying her. Its notion, therefore, does not coincide with that of r. as a crime, since it encompasses neither r. by force for the mere purpose of lust, nor consensual r. or r. by seduction; whereas, conversely, in addition to abduction, it also extends to the forcible detention or confinement of the woman, provided that it is always for the purpose of marriage.
II. THE IMPEDIMENTUM RAPITUS
Confused until the Council of Trent with the impedimentum vis et metus, abduction was established by that Council as a distinct and autonomous diriment impediment (sess. XIV, de reform. matrim., can. 6), at the request and under the pressure of the civil authorities; and in this form it has been retained, with certain modifications, also in the CIC. It is currently regulated by can. 1074, which provides: § 1 “Marriage cannot be contracted between the abductor and the woman abducted for the purpose of marriage, so long as the woman remains in the power of the abductor”; § 2 “The impediment ceases if the abducted woman, separated from the abductor and brought 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 detention of the woman is equated with abduction; this occurs when the man, for the purpose of marriage, forcibly keeps the woman in the place where she is or to which she has freely gone.”Canonists locate the rationale of this impediment tum ex praesumpione 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 in the more serious cases, the demand, so strongly advanced by the States during the Council of Trent, that the Church invalidate marriages contracted by minors without the assensus parentum; marriages which were often reached precisely through the abduction of the minor girl from her father’s house.
The nature of the impediment is one of merely ecclesiastical law and not of natural law (defect of consent on the part of the abducted woman), as is shown by the fact that abduction continues to exist so long as the abducted woman remains in the power of the abductor, even notwithstanding her free consent to the marriage. As such, it does not extend to infidels, unless their civil law or customs likewise regard it as a diriment impediment.
For the impediment to arise, four conditions must concur: a) abductio seu retentio. It is required, first of all, that the abducted woman either be taken from one place to another, or be detained or confined in the very place where she was, but always against her will. The equation of detention with abduction, and the extension to the former of the vis irritans impedimenti, constitute an innovation of the CIC with respect to Tridentine law, and have served to overcome all the former casuistry concerning the character, distance, and so forth of the place to which the abducted woman had to be transported for the essential element of the impediment to be present. b) Abductio seu retentio violenta. Abduction, whether in the form of genuine abduction or that of the simple detention of the woman, must be violent, that is, carried out despite the refusal and contrary will of the abducted woman, by recourse either to physical force or to moral coercion of such a nature as to induce in her grave fear. For the abduction to be considered violent, however, it suffices that the woman either oppose the abduction or detention while consenting to the marriage, or conversely refuse the marriage while consenting to the abduction. On the other hand, at least in matrimonial matters, no relevance attaches either to the so-called consensual abduction, that is, the abduction of a consenting minor woman without the knowledge or against the wishes of her parents, by exercising physical and moral violence against them (raptus in parentes); or to the so-called raptus sedutiosis, that is, the abduction of a woman whose consent to the abduction or to the marriage has been extorted by deceit through fraudulent seduction. c) Abdutio seu retentio mulieris a viro facta. Since, according to the legislative provision, the impediment is specifically constituted inter virum raptorem et mulierem raptam, the abductor must be male and the abducted person female: thus no impediment will arise (and it is difficult to offer a logical explanation for this) if even a young man, a minor and timid, is violently abducted by an authoritative woman. As regards the person of the abductor, it is not necessary that he carry out the abduction personally; and, if he makes use of male or female agents to perform it, the impediment is nevertheless constituted with respect to him, whereas it does not exist with respect to his agents. Finally, as regards the person of the abducted woman, the impediment arises regardless of her moral character or social position (virgo, corrupta, housta, inhousta, meretix), and even notwithstanding that she may already be engaged to the abductor himself; consequently, the classical ancient rule non fit raptus propriae sponsae must today be considered abrogated. d) Abdutio seu retentio intuitu matrimonii. Finally, the abduction must be carried out with the specific purpose of marrying the abducted woman, and not for any other licit or illicit purpose. If, however, there is doubt concerning the abductor’s actual intentions, doctrine is unanimous that the abduction is always presumed (naturally by praesumptio iuris tantum) to have been carried out intuitu matrimonii, since in such a case the libertas matrimonii must prevail; therefore, before permitting the celebration of a marriage in a case of raptus dubius, the parish priest must comply with the provision of can. 1031 § 1.
According to can. 1074 §§ 1–2, the matrimonial impediment continues to exist until the woman has been a raptore separata et in loco tuto ac libero constituta. The fact that the woman, having been transported or confined in a particular place against her will, subsequently has the full possibility of escaping and thus the freedom to withdraw from the potestas raptoris, is therefore irrelevant. Even if the abductor has formally declared that she is free to leave, and her failure to do so depends exclusively upon her own will, so long as the objective material condition of her being in potestate raptoris persists, the impediment retains its invalidating effect.
Conversely, according to can. 1074 § 2, the impediment ceases automatically if the abducted woman has been a raptore separata et in loco tuto ac libero constituta and, in these conditions, consents to contract marriage with him.
Moreover, although rarely, and in practice almost exclusively in mission territories, it may also be made to cease by virtue of a papal dispensation, given its nature as an impediment of merely ecclesiastical law; provided, naturally, that there is certainty that the abducted woman, although still in potestate raptoris, freely consents to marriage with him.
III. THE CRIME OF RAPTUS
The Council of Trent, in making r. a matrimonial impediment, had also imposed very severe penalties both upon the abductor himself and upon all his accomplices, 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 force intuitu matrimonii.The CIC regulated the matter ex novo in can. 2353, broadening, on the one hand, the notion of the crimen raptus, that is, extending it both to abduction by force and to consensual and seduction abduction, and thus both to abduction for the purpose of marriage and to that carried out for the purpose of mere lust; but, on the other hand, mitigating the penalties prescribed for it, namely, limiting them: a) to the latae sententiae penalty of exclusion from ecclesiastical legal 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 guilt committed.
Unlike the Council of Trent, the CIC makes no mention of accomplices, and this has led some canonists to consider them now exempt from every penalty. In view, however, of the general principle of can. 2231, it must be held that not only the instigator but also all the principal and necessary collaborators are included among those subject to the penalties established against the abductor by can. 2353, and that the secondary accomplices themselves are at least subject to those penalties which the Superior may deem appropriate to impose upon them in relation to their responsibility and participation in the crime.
Finally, in can. 2354, the CIC also regards as a crime the raptus impuberum wriusque sexus for a purpose other than marriage or lust and, if the abductor is a layman, considers it a delictum mixti fori and consequently accepts the penalties imposed by the civil magistrate upon the abductor, aggravating them with exclusion from legal acts and the loss of any munus, si quod in Ecclesia habeat, in addition to the obligation to compensate the injured party for damages; if, on the other hand, the abductor is an ecclesiastic, it considers the offense one within its exclusive competence by virtue of the privilegium fori pertaining to clerics and punishes it with penalties that may, depending on the gravity of the case, extend to deposition.