Rape

RAPE. - In canon law, by rape is meant the carnal oppression of a virgin woman; whereas moralists extend rape to the oppression of any woman, regardless of her state of virginity; Italian criminal law then broadens it still further, including persons of either sex (art. 519, paragraph 1).

In Italian law, the following are considered objects of violence, even though they consent to carnal union: 1) in every case, those who have not completed 14 years of age (art. 519, paragraph 2, no. 1); 2) those who have not completed 16 years of age, where the active subjects are the ascendants or the guardian, or others to whom the minor is entrusted by reason of care or education or instruction or supervision or custody (ibid., no. 2); 3) the mentally ill or those who are in such conditions of psychic or physical inferiority as to be unable to resist, even if the impairment does not depend on an act of the guilty party (ibid., no. 3); 4) those who have been deceived by the fact that the guilty party substituted himself for another person (ibid., no. 4). Also according to the CIC, those persons must be considered passive subjects of rape who, at the time of the act, are incapable of consent, e.g., drunkards, those tormented by natural or even artificially induced sleep, the insane, idiots, etc. Rape is never possible between spouses in canon law: it is possible in Italian criminal law, when the spouses are legally separated; it is also possible (though only in Italian criminal law) between persons of the same sex: in canon law it then remains an aggravating circumstance of homosexuality.

The penalties against those guilty of rape are, in the Italian penal code, imprisonment from three to ten years (art. 519, paragraph 1), and the loss of any parental authority over the oppressed person (art. 541, paragraph 1); however, the penalty is not applied, or is extinguished if, in the course of execution, the guilty party enters into marriage with the woman to whom he has done violence (art. 544). In the CIC, against the faithful legitimately condemned for rape, the penalty of infamy is inflicted by law, while others are left to the discretion of the Ordinary (can. 2357 § 1); against minor clerics, in addition to the aforementioned infamy, other penalties are likewise to be applied at the discretion of the Ordinary, up to expulsion from the clerical state (can. 2358); against clerics in sacred orders various penalties are prescribed (suspension, infamy, deprivation of office, of benefice, etc., up to deposition), which however are not incurred unless they have actually been applied by the Ordinary (can. 2359 § 2).

Lorenzo Simeone