Marvin Y. Alili
Canon Law IMPOTENCE

* What is impotency? * Impotency in 1917 Code of Canon Law * Impotency in 1983 Code of Canon Law

Part I * Intercourse * Antecedent * Perpetual * Either on the part of the woman or the woman * Absolute * Relative * By its nature

Part II – Paragraph 2 of can.1084 * What to do in the case of doubt either before or after the marriage?

Part III – Paragraph 3 of can. 1084 * Sterility

* How can one prove?

* Conclusion

Introduction:
Among the various matrimonial impediments affecting the licitness as well as the validity of the marriage contract, the impediment of impotence has been polarizing the attention of canonists, theologians and medical experts for centuries. Even at the present time, it represents ground for prolonged discussions on the inner interpretation of the impediment, and on the application of the principles to practical cases.
This, we believe, is motivated by 2 main factors: impotence is an impediment based on the very law of nature and, as such, is out of reach of the Church power to dispense it, once it is shown present beyond reasonable doubt. Secondly, impotence, as a physical or physiological defect, is regulated essentially by medical science, which is involved in a constant process of development and improvement. This gives rise to extreme difficulty of combining harmoniously the medical notion with principles of canonical jurisprudence.
However, in general, impotence may be defined as the incapacity of performing the marital act by which the spouses become one flesh. What is directly affected by a true condition of impotence is the object itself of the matrimonial consent which is the right to those acts resulting for the generation of offspring. But, later on, we will understand that impotence covers marital act not so much of sterility

1917 Code of Canon Law

Canon Law 1049: Antecedent and perpetual impotency, either of the part of the man or the woman, whether known to the other party or not, and whether absolute or relative, annuls marriage by the very law of nature. If the impediment of impotency is doubtful, either as to fact or to law, marriage is not to be forbidden. Sterility neither invalidates nor makes marriage illicit.

In relation to this canon, the doctrine and tradition of the Church requires three elements for the sexual intercourse, i,e., * Erection * Penetration * Insemination on the part of man and capacity to receive insemination on the part of woman.

Canon 1081 paragraph 2 – actus per se aptosprolisgenerationem
To be understood not as requiring the ability to generate, but the ability to perform procreative act (conjugal act)

1983 Code of Canon Law

§1 Antecedent and perpetual impotence to have sexual intercourse, whether on the part of the man or on of the woman, whether absolute or relative, by its very nature invalidates the marriage.

Intercourse:
For the man intercourse happens into 3 elements: * Erection * Penetration * Ejaculation
When incapable of one of these three elements it is impotency.

For the woman intercourse happens when * She has vagina * Capability to receive the erect male member.
Without these, a woman is impotent

What are the causes of Impotence?
Impotence can be organic or functional.

Organic impotence: the sexual organs themselves are physically, anatomically or organically defective.

For male organic impotence * Absence of penis * Abnormal size of the penis preventing vaginal intromission.
a. too large for the woman’s vagina
b. bent nail syndrome- the penis is so crooked as to prevent its being inserted into the vagina.
c. no opening in the head of the penis.

* Retrograde ejaculation.
-Any defect in the penis, testicle or the sperm ducts which would prevent the spermatozoa from being ejaculated. NO SPERM- IMPOTENT

For female organic impotence * Lack of vagina * Some defect in the size or shape of the vagina * Hysterectomy-prevents the possibility of the semen reaching the uterus. In this kind of operation, the vagina is closed at the interior end. Thus, must be taken prior to the marriage. * Absence of a canal or the occlusion of the canal so that it terminates without leading to the uterus.

Functional Impotence: the organs themselves are organically perfect but for one reason or another they function imperfectly.

For male functional impotence * The dysfunction of sexual organs due to any form of lower body paralysis. An injury to the central nervous system which affects the sexual functioning of a man renders one impotent. * Sexual dysfunction due to a psychological cause.
a. premature ejaculation
b. no ejaculation due to some emotional difficulty
c. inability to have or sustain an erection for long enough to perform sexual act.

For female functional impotence * Vaginismus – painful spasm of all the muscles surrounding and supporting the vagina, which happens when intercourse is attempted or even when the area is merely touched and which renders intercourse impossible.

a) Symptomatic – when there are inflammatory lessions due to immoderate or violent attempts at intercourse; hypersensitivity; injury or infection. b) Idiopathic – subconscious defense mechanism against pain or against a hated husband. It is also called defensive vaginismus. This results to vaginal contraction.

Antecedent:
It must have existed before the marriage
Although impotence must be antecedent that obviously invalidates the marriage, it does not mean that it should have manifested beforehand but only it is virtual or causal (once it happened).
= if after the marriage, the husband or the wife has found out that his or her partner is already impotent before marriage, then, the marriage can be invalidated. But if impotence arises only after marriage, due to an accident, or illness, or surgery, and one is undoubtedly impotent, such condition does not affect the validity of marriage.

Perpetual:
The condition is such that it cannot be cured by ordinary means.
If it is incurable then it is curable only by extraordinary means: * A miracle * Illicit means * Probable danger to one’s life

impotence is regarded as perpetual, first, if there are no available lawful means for the person and only be cured by a dangerous surgical operation which is a serious threat to the life of the person, and second, if ordinary operation is not available to that person.

Either on the part of the man, or on the part of the woman:
If one of the parties is impotent, the marriage is invalid.

Absolute:
The person is incapable of sexual intercourse with anyone of the opposite sex.
– a person is incapable of sexual intercourse with any partner

Relative:
The person is incapable of sexual intercourse with a determined individual person of the other sex.
Example: Man is impotent to a particular woman, his wife but, to other women he could be potent.

By its nature:
If one of the ends of the marriage is the procreation of children, it is naturally required that the capacity to do what is necessary for the generation should be there.

Impotence becomes an impediment to marriage because, by its nature, it is the inability to have sexual intercourse. Thus, impotence is an impediment of natural law that the Church cannot be dispensed.

§2 If the impediment of the impotence is doubtful, whether the doubt be one of law or one of fact, the marriage is not to be prevented nor, while the doubt persists, is to be declared null.

What to do in the case of doubt either before or after the marriage?

Before the marriage:
The benefit of doubt should be given to person who intends to marry.
To cancel out the fundamental right to marry, the impediment should be certain beyond any shadow of doubt.

After the marriage:
In this case, the law favors the stability of union.
Hence, proofs must be produced, enough to establish “moral certainty” that impotence was there in the first place.

-If impotence is doubtful as to fact or to law, marriage is not to be forbidden, nor it can be declared null and void as long as the doubt continues to exist. But if impotence is certain, then, marriage is declared invalid.

§ Without prejudice to the provisions of can. 1098, sterility neither forbids nor invalidates a marriage

What is sterility?
-It is defined as the incapacity to generate new human life.
-The sterile person is not impotent.

Example: if a woman whose ovaries or uterus have been removed or if a man who undergone vasectomy is not to be hindered from marrying or considered as impotent

As long as the spouses are capable of sexual intercourse which is one of the aspects of marriage, then, a sterile person can still get married or the marriage is valid. It is not anymore about the semen, but the mutual union of husband and wife is essential for the consummation of marriage.

When do we consider sterility as an impediment?

Can. 1098 A person contracts invalidly who enters marriage inveigled by deceit, perpetrated in order to secure consent, concerning some quality of the other party, which of its very nature can seriously disrupt the partnership.

This canon refers to a consent obtain through fraud; when one party deceits the other regarding fertility, the invalidity of marriage will be in the context of consent, not in the infertility.
If sterility - deceitfully concealed from the other party in order to obtain the consent to marry.

Example – before the marriage man did not tell to the woman that he is sterile because of vasectomy then after the marriage the woman finds this deceit this becomes an impediment.

Two aspects that make this canon clear 1. Conception as the effect of sexual intercourse. 2. Not in every intercourse produce conception.

-Composition of ejaculation is not an issue so much here whether you have low or high count of sperm. The issue is the ability to perform sexual act.
-Very low sperm count cannot constitute as impotent.
-Thus infertility is not considered as impotence.

How can one prove – this is left to the canonical judge based on his own knowledge, and the existing jurisprudence in the area of dysfunction. Only to Church court can analyze adequately the situation of impotency.

To prove your case, generally: 1. Your own testimony to the condition of impotence. 2. Hopefully your impotent partner’s statement of the condition. 3. Witnesses who are relatives of friends with whom the impotent party spoke and to whom he related the presence of sexual problem. 4. Expert witnesses, namely: doctor’s report (medical doctor, psychologist, and psychiatrist) or the husband willingness to submit to a medical or psychological examination for the purpose of annulment.

Conclusion:
Impotence becomes an impediment to marriage because it does not give completion to the totality of marriage where there should be an act of giving and receiving in the area of marital act.However, impotence is not an impidiment in view of the procreative aspect of marriage, though it is essential, but in view of the mutual union of man and woman (unitive aspect). As the issue of marriage indicated in GaudiumetSpes that followed the biblical pattern, it says that first, God has given a mate to man to relieve his solitude, then procreation followed. Though the two aspects are essential, in nature, mutual love precedes procreation. Thus, one’s marriage is still valid even though one of the spouses is sterile. We should realize that the very essence, then, of marriage is not the generation of children, but the mutual union of husband and wifeexpressed in a “marital intercourse.”

Sources:

ANNULMENT. Rev. Terence E. Tierry, JCL
Marriage in Canon Law.CadislasOrsy SJ
ANNULMENTS. Lawrence G. Whelm