**KIDNAPPING** (Matrimonial Impediment and Crime). —
I. Notion
In its proper etymological sense, the term *rapimento* (from the Latin *rapere*) implies the concept of an abduction or transfer of a person from one place to another, carried out by force, and encompasses the kidnapping of both men and women. In theological and canonical legal language, however, it has a narrower scope (with the exception of can. 2354 § 1 CIC) and designates exclusively the kidnapping of a woman.Current canon law considers kidnapping both as a crime (can. 2353) and as a diriment impediment to marriage (can. 1074).
As a crime, kidnapping consists in the abduction of a woman, either to marry her or to satisfy upon her merely a carnal passion, and it may be indifferent whether it is a kidnapping by force, i.e., carried out despite the refusal and against the will of the abducted woman, or a kidnapping by seduction and consensual kidnapping, i.e., performed by deceitfully (through deceit, fraud, or flattery) obtaining the consent of the abducted woman, or by abducting a minor woman who personally consents but against the will or without the knowledge of her parents or guardians.
Considered instead as a matrimonial impediment, kidnapping consists in the abduction or forcible detention of a woman with the precise aim of marrying her. Its notion, therefore, does not coincide with that of kidnapping as a crime, since it does not include either kidnapping by force for the purpose of lust or consensual kidnapping or that by seduction; whereas, on the other hand, it extends, beyond abduction, also to forcible detention or sequestration of the woman, provided always that it is for the purpose of marriage.
**The Impedimentum Raptus.** — Confused until the Council of Trent with the *impedimentum vis et metus*, kidnapping was established as a distinct and autonomous diriment impediment by that Council (sess. XIV, *de reform. matrim.*, can. 6) at the request and pressure of civil authorities, and as such has been preserved with some variations also in the CIC. It is currently regulated in can. 1074, which provides: § 1 “There can be no marriage between the kidnapper and the woman kidnapped for the purpose of marriage, as long as the woman remains in the power of the kidnapper”; § 2 “The impediment ceases if the kidnapped woman, separated from the kidnapper and placed in a safe and free place, consents to take the kidnapper as her husband”; § 3 “For the purposes of the nullity of the marriage, forcible detention of the woman is equated with kidnapping, which occurs when the man forcibly holds the woman with the aim of marriage in the place where she is or in which she has freely gone.”
The rationale for this impediment is placed by canonists both in the presumption of lack of consent and in hatred of so great a crime. In reality, however, it may be considered that its creation was due to the intention of satisfying, albeit indirectly and only in the most serious cases, the demand—so strongly advocated by States during the Council of Trent—that the Church invalidate marriages contracted by minors without the *assensus parentum*; marriages to which one often resorted precisely by means of kidnapping the minor girl from her father’s house.
The nature of the impediment is of mere ecclesiastical law and not of natural law (lack of consent of the kidnapped woman), as is shown by the fact that kidnapping subsists as long as the kidnapped woman remains in the power of the kidnapper even despite her free consent to the marriage. As such, it does not extend to the unbaptized, unless their civil law or customs consider it also as a diriment impediment.
For the impediment to occur, four conditions must concur: a) *abductio* or *retentio*. It is required, first of all, that the kidnapped 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 detention with abduction and having extended to the latter the force that irritates the impediment is an innovation of the CIC with respect to Tridentine law and has served to overcome all the past casuistry regarding the diversity, distance, etc., of the place to which the kidnapped woman had to be taken for the impediment to recur. b) *Abductio* or *retentio violenta*. Kidnapping, whether in the form of true abduction or in that of simple detention of the woman, must be forcible, i.e., carried out despite the refusal and contrary will of the kidnapped woman, by resorting either to physical force or to moral coercion of such a nature as to instill in her grave fear. For kidnapping to be considered forcible, however, it suffices that the woman either opposes the abduction or detention, even while consenting to the marriage, or refuses the marriage, even while consenting to the kidnapping. No relevance, on the other hand, at least in matrimonial matters, is had either by the so-called *raptus consensualis*, i.e., the kidnapping of a minor woman who consents to the abduction or to the marriage despite or with the dissent of her parents, by exercising physical and moral violence upon them (*raptus in parentes*), or by the so-called *raptus seductionis*, i.e., the kidnapping of a woman whose consent to the abduction or to the marriage has been extorted by deceit through a fraudulent act of seduction. c) *Abductio* or *retentio mulieris a viro facta*. Since, according to the legislative provision, the impediment is specifically constituted *inter virum raptorem et mulierem raptam*, it is necessary that the kidnapper be male and the kidnapped woman female: hence there will be no impediment (and it is difficult to offer a logical explanation) if a young man, even a minor and pusillanimous, is kidnapped by force by an authoritative woman. As regards the person of the kidnapper, it is not necessary that he personally carry out the kidnapping; and if he avails himself of the work of material executors, male or female, the impediment is constituted equally with respect to him, while it does not subsist with respect to his mandataries. Finally, as regards the person of the kidnapped woman, the impediment arises equally whatever her moral character and social position (virgin, corrupted, honest, dishonest, prostitute) and even despite the fact that she is already engaged to the kidnapper himself, so that today the ancient rule *non fit raptus sponsae propriae* must be considered abrogated. d) *Abductio* or *retentio intuitu matrimonii*. Finally, the kidnapping must be carried out with the precise aim of marrying the kidnapped woman and not for any other licit or illicit purpose. In case, however, of doubt about the actual intentions of the kidnapper, doctrine is unanimous that kidnapping is always presumed (*naturaliter per praesumptionem iuris tantum*) *intuitu matrimonii*, since in such a case the *libertas matrimonii* must prevail, and therefore, before allowing the celebration of a marriage in case of *raptus dubius*, the parish priest must follow the prescription of can. 1031 § 1.
According to can. 1074 § 1-2, the matrimonial impediment continues to subsist as long as the woman has not been separated from the kidnapper and placed in a safe and free place. Therefore, no relevance is had by the fact that the woman, taken or sequestered in a certain place against her will, subsequently has full possibility of fleeing and thus freedom to escape the *potestas raptoris*. Even if, indeed, the kidnapper has formally declared to her that he leaves her free to depart and the failure to do so depends exclusively on her will, as long as the material objective condition of being in the *potestas raptoris* subsists, the impediment retains its irritating efficacy.
On the other hand, according to can. 1074 § 2, the impediment ceases automatically if the kidnapped woman is separated from the kidnapper and placed in a safe and free place and in such conditions consents to contract marriage with him.
Although rarely, and in practice almost exclusively in mission territories, it may also be terminated by means of a papal dispensation, given its nature as an impediment deriving solely from ecclesiastical law; provided, of course, that there is certainty that the abducted woman, although still in the power of the abductor, freely consents to marriage with him.
III. THE CRIMEN RAPTUS
The Council of Trent, by making abduction an impediment to marriage, also imposed the most severe penalties on the abductor himself and all his accomplices, declaring them ipso iure excommunicated and perpetually infamous, and incapable of holding any dignities; and if they were clerics, they were to be deposed from their own rank (Session XXIV, De reform. matr., can. 6). This, however, referred only to abduction accomplished through violence with a view to marriage.The Code of Canon Law has newly regulated the matter in can. 2353, on the one hand broadening the notion of the crimen raptus, that is, extending it both to abduction by violence and to that by consent or seduction, and thus to abduction for the purpose of marriage as well as to that with the mere purpose of lust; but on the other hand mitigating the penalties imposed for it, namely by limiting them: a) to the penalty *latae sententiae* of exclusion from ecclesiastical acts of legitimate standing, as enumerated in can. 2356, n. 2; b) to those penalties *ferendae sententiae* determined case by case by the judge in proportion to the gravity of the fault committed.
Unlike the Council of Trent, the Code of Canon Law makes no mention of accomplices, and this has led some canonists to believe that they are today exempt from any penalty. Considering, however, the general principle of can. 2231, it must be held that not only the instigator but also all principal and necessary cooperators are included in the penalties prescribed against the abductor in can. 2353, and that even secondary accomplices are at least subject to such penalties as the Superior may deem appropriate to impose in relation to their responsibility and participation in the crime.
Finally, the Code of Canon Law, in can. 2354, also considers as a crime the abduction of minors of either sex for purposes other than marriage or lust, and if the abductor is a layman, it treats it as a *delictum mixti fori* and accordingly accepts the penalties imposed by the civil magistrate against the abductor, aggravating them with exclusion from legitimate acts and the loss of any office he may hold in the Church, in addition to the obligation of making restitution for damages to the injured party; whereas if the abductor is a cleric, it treats it as a crime falling within the exclusive competence of the Church by virtue of the privilege of the clerical forum and punishes it with penalties that may, according to the gravity of the case, extend as far as deposition.