Saturday, 4 February 2012

On Marital Rape

First things first: in stating that ‘from a Catholic perspective, marital rape is quite simply an oxymoron; it is not possible,’ I was wrong.  

This post is my thinking-out-loud about why I was wrong, and where I was right in my thinking.  As always, I claim no infallibility: indeed I invite correction.

One of the things I like about blogging is that if I display my ignorance, misunderstandings and prejudices  publicly, eventually somebody with something useful to say may turn up and put me right, or at least put me on the right track.

Since I first posted on this, here, I have had a number of comments offered, some in private and some in the public domain.  Few were helpful, as only a few actually addressed what I had written.  Claiming that I was condoning rape, and denouncing me as an extremist, whether publicly or privately, didn’t really address the issues (satisfying though that may have been).

I am somewhat intrigued by those who, having misunderstood, thought it essential to email me privately and put me right (sometimes in somewhat condemnatory terms) but who, when I wrote back clarifying what I had and hadn’t meant by my post, and again inviting correction, declined to respond.  ‘What’s all that about?’ I ask myself...

Of those few that were helpful, one was certainly Vincent’s comment on the previous post.

He makes a number of points.  His first point I have no issue with, other than that it misses the point I was making (unless, of course, I have missed the point he was making...).  I was not talking about civil marriages; I limited myself specifically, I thought, to a Catholic understanding of Christian marriage.
His second point was more germane: 

Secondly, I do not think that the ius in corpus must include 24/7 availability. Rotal jurisprudence has held that the limitation of the right to sexual acts at certain times e.g. illness does not vitiate matrimonial consent. Even if sexual refusal in a certain case is sinful, that does not necessarily legitimise forceful attempts to redress the situation. Theft is wrong; that does not mean we can always use violence to get our property back.

The point about rotal jurisprudence is clearly a very important one, and suggests that I was taking too simplistic approach to the notion of irrevocable consent.  I always agreed, of course, that recourse to force is not legitimate in this area (as I hope I made clear); my only question was whether ‘rape’ was the right label for that particular wrong.

So the first half of this paragraph is the most relevant to my thinking.

Somebody else, who prefers to remain anonymous, also emailed me:

Lifted from the SSPX US website:There can, however, be good reasons that excuse a husband or wife from rendering this marriage debt, such as adultery of the other spouse, or unreasonable demands (e.g. frequency, intoxication) or grave danger to health or life (e.g. by the possible communication of infectious diseases), or a husband who refuses to perform his duty of supporting his family (Jone, Moral Theology, pp. 557 & 558). There can also be special circumstances that reduce the culpability of refusing the marriage debt, so that it is only a venial sin, for example "if the petitioner will readily renounce his right, or if rendering it is only briefly postponed, or when the use of the marriage right is frequent and its refusal is only rare."

I quote this, not because I endorse the SSPX particularly (for me, full, visible, unconditional communion with Peter is pretty foundational...) but because even their most vehement critic (which I am not) would be unlikely to see them as inclining to liberalism in moral issues.  Again, what it shows is that my understanding of irrevocable consent was too simplistic.

The most important, in many ways, was Vincent's third point.

Thirdly, there is the jurisprudence and theology surrounding ratum sed non consummatum marriages. This refers to the power of the Roman Pontiff alone to dissolve the bond of a sacramental but non-consummated marriage, whereas a marriage ratum et consummatum is dissoluble by no human power; only death. For many years the question was debated whether or not sexual intercourse with violence or against protests (i.e. rape, by most people’s understanding of the word) could qualify as the consummation needed to make a marriage extrinsically indissoluble. The 1983 Code of Canon Law settled this question by requiring the act to be performed humano modo i.e. with the voluntary consent of both parties. This interpretation of humano modo is supported by the December 20th 1986 circular letter of the Congregation for the Sacraments, which is itself pretty similar to a responsum ad dubium of the Holy Office of February 2nd 1949. The point of the diversion is this: the Church makes provision for for the possibility of non-consensual sexual intercourse as early as the wedding night. Furthermore, it judges that such non-consensual intercourse is apparently not the object of the consent to ius in corpus exchanged in marriage.
That seems to me to be pretty conclusive: which is why I have realised that I was wrong in my earlier assertion.

He then added:

Finally, trying a different tack, let’s look at the Catechism of the Catholic Church. 2356: “Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically evil act.” or “Stuprum ingressum indicat per vim, cum violentia, in sexualem alicuius personae intimitatem...” Note that the definition is based on force or violence, not on ‘consent’. It seems to me that your argument against the existence of marital rape is based on a legalistic application of ‘presumed consent’, when consent – presumed or actual - is not part of the definition of rape.
Game, set and match!  Not only was I wrong on the application of irrevocable consent, I was also wrong in my definition of rape.

I would add a few further thoughts:

One is that it is interesting, both in this case and in the case of Stephen Green, which kicked all this off, how many people were quick to leap to the knee-jerk ‘How could you possibly be so evil as to condone rape?’ position.

The second is that I maintain that the way in which couples are prepared for marriage gives insufficient clarity to the nature of the vows. On the one had, my misunderstanding was clearly never addressed when we were instructed some 30 years ago (and to all those who in private correspondence have taken a prurient interest in my marriage, I can now reveal that this misunderstanding has never had any incarnation in our marital relations).  On the other hand, I can see nothing in current marriage preparation programmes that addresses this with any clarity.

The third is that I still stand by the understanding that irrevocable gift of the self, with particular reference to the body, is at the heart of Christian marriage.  That is the ius in corpus referred to above.  I do not warm to the expression ‘marriage debt’ for all the obvious reasons, but at least it had clarity.  I can see why it has been discarded over time, but feel we have failed to replace it adequately.

Finally (and this has been a long post - if anyone has read this far, I’m impressed - but like so much blogging, the principal beneficiary is the writer...), finally, as I said before I interrupted myself, I have some unease about defining rape only on the basis of force, and not consent - but maybe here I am again confusing civic and canon law.  In civic law it is already hard to get convictions for rape: requiring the proof of force, not just the lack of consent, would, I fear, make it harder.

Incidentally, Vincent’s valediction, was a good example of how to sign off when you have basically been telling someone he’s got the wrong end of the stick: he found some points of agreement and assumed my intention, even if not my thinking, was good.

All that said, I think you are correct to note the increasing trend to decouple marriage from sexual intercourse, which we see has resulted in the current epidemic of contraception, abortion, homosexual unions et cetera. Keep up the good work!

We could do with more such clear, non-confrontational, and fundamentally friendly fraternal correction on the Catholic blogosphere, and I would like to thank Vincent both for putting me right, and for his approach.


Part-time Pilgrim said...

I think a true understanding of the marriage commitment (along the lines of Ep 21-25) would render consideration of whether one partner could force sex on or refuse sex from (over a prolonged period of time) moot. I actually think our marriage preparation was sound on this aspect. A phrase I remember: “Marriage is NOT give and take: it’s give and give.” Clearly this includes all aspects of life. I think if someone had send to me: “Remember you are committing yourself to a life-long sexual union” I would have thought: “Well duh..”
I think the whole discussion has been intriguing. I was particular struck by your quote from the Catechism of Trent which clearly defines mutual and equal obligations in this regard even though some of its authors may well have regarded a wife as the property of her husband. (Perhaps I am overplaying the role of the Holy Spirit and being unfair to the Catechism authors)

Edited - word "not" in the wrong place!

Ben Trovato said...

P-t P

Yes, it reads rather better like that!

Vincent said...

You're welcome. As I said, I do enjoy your blog, so please keep it up.