Abduction
Abduction may be considered as a public crime and a matrimonial diriment
impediment. Viewed as a crime, it is a carrying off by force, physical or moral, of any virtuous
woman, or even man, from a free and safe place to another place morally different and neither free
nor safe from the captor's power, with intent to marry her or to gratify lust. Abduction considered
as a matrimonial Impediment is a violent taking away of any woman whatsoever, chaste or
unchaste, from a place free and safe to a morally different place, and there detaining her in the
power of her abductor until he has coerced her into consenting to marry him. Abduction as a crime
is of wider scope than is the impediment, inasmuch as the former includes man-captors and intent
to gratify lust, both of which are excluded from the scope of the impediment. On the other hand, the
impediment is of wider import than the crime in as far as it includes all women, chaste as well as
unchaste, while the crime excludes the corrupt. This difference arises from the fact that the State
aims to suppress the public crime as a menace to the safety of the commonwealth, while the
Church cares, directly and immediately, for the freedom and the dignity of the Sacrament of
Marriage. Abduction is often divided into Abduction by Violence (Raptus Violentiae) and Abduction
by Seduction, or Elopement (Raptus Seductionis). The former is when (a) a woman evidently
reluctant, and not consenting either to the flight or to the marriage, is forcibly transferred with a
matrimonial intent from a secure and free place to a morally different one and there held under the
abductor's influence by force, physical or moral, i.e. threats, great fear, or fraud equivalent to force,
as it is a well-known axiom that "it is equal to be compelled to do a thing as to know that it is
possible to be compelled to do it", (b) a woman enticed by fair words and fraud and deception
consents to go with a man for other reason than matrimony from one place to another where he
detains her by force or fraud equivalent to force, in order to coerce her into a marriage to which she
objects; (e) a woman who, although she had already consented to a future marriage by act of
betrothal, vet strenuously objects to Abduction, is carried off violently by her betrothed or his
agents from a free and safe place to another morally different and there detained until she consents
to marry him. Some deny, however, that the raptor in this case is guilty of Abduction, saying that
he has a right to his betrothed. He has, indeed, a right to compel her to fulfil her engagement by
public authority, not, however, by private authority. His carrying off of the woman against her will
is the exercise of private authority, and therefore violence to her rights. Abduction by Seduction
(Raptus Seductionis), or Elopement, is the taking away from one place to another, by a man, of (1) a
woman of age or under age who consents to both the flight and the marriage without consent of her
parents or guardians; or (2) a woman who, although she refuses at first, finally, induced thereto by
caresses, flattery, or any allurement, not however equivalent to force, physical or moral, consents to
both flight and marriage without knowledge or consent of her parents or guardians. Abduction by
seduction, as defined is held by Roman law to be Abduction by violence inasmuch as violence can be
offered to the woman and her parents simultaneously, or to the woman alone, or to the parents and
guardians alone; and in the elopement, while no violence is done to the woman, violence is done to
the parents or guardians. On the contrary, the Church does not consider violence done to parents,
but the violence done only to the parties matrimonially interested. Hence, elopement, or Abduction
by seduction, does not induce an impediment diriment. Pius VII, in his letter to Napoleon I (26
June, 1805), pronounced this kind of Abduction no Abduction in the Tridentine sense. The Church
considers it, indeed, a wrong against parental authority, but not a wrong to the abducted woman.
The old Roman law (Jus Vetus), mindful of the actual or imaginary "Rape of the Sabines", dealt
leniently with woman-stealers. If the woman was willing, her marriage with her abductor was
allowed and solemnized by the lictor leading her by the hand to the home of the raptor. Constantine
the Great, to protect female virtue and safeguard the State, forbade (A.D. 320) such marriages.
The law was neither universally received nor observed. The Emperor Justinian (A.D. 528, 533, and
548) forbade these marriages and fixed the punishment, for the principal and his accomplices in the
crime, at death and confiscation of all their property. Legal right to avenge the crime was given to
parents, relations, or guardians; to put to instant death the abductor caught in the act of
Abduction. Appeal by the victim in behalf of her abductor, on the plea that she gave consent, was
denied. The law awarded the confiscated property to the woman, if she had not consented to the
Abduction; to her parents, if they were ignorant of, or adverse to, it, and their daughter consented
to the Abduction; but if the woman and her parents consented to the carrying off, then all the
property lapsed to the State, and the parents were banished (Codex Just., IX, Tit. xiii; Auth.
Collat., IX, Tit. xxvi; Novell., 143; Auth. Collat., IX, Tit. xxxiii; Novell. 150). The Byzantine
Emperor, Leo VI (886-912), called the Philosopher, approved (Constit. XXXV) the former laws in all
particulars, with the exception that if swords or other deadly weapons were carried by the abductor
and his accomplices during the Abduction a much severer punishment was inflicted than if they
were not carried. The old Spanish law condemned to death the abductor who also ravished the
woman, but the abductor who did not ravish was let off with a money fine to be equally shared by
the abducted and the State. If the woman had consented to the Abduction, the whole fine reverted
to the State. Athenian law commanded the abductor to marry the abducted, if she so willed, unless
the woman or her parents or guardians had already received money instead. The earlier Byzantine
law enjoined, but the later law forbade, the marriage. Among the Germanic nations the crime of
Abduction was compounded by pecuniary gifts to the parents or guardians. The Church did not
accept the Roman law which declared all the marriages of the abductor with the abducted, without
exception, entirely and perpetually null and void. She held as valid all marriages in which there
was present true and real consent of the captured women. According to St. Basil (2 Canon. Epist. to
St. Amphilochius, xxii, xxx, fixed date, an. 375, Post-Nicene Fathers, 2d series, VIII, Scribner's ed.),
the Church issued no canons on Abduction prior to his time. Such a crime was, doubtless, extremely
rare among the early Christians. In the fourth century, as men grew more audacious, the number
of wife-captors became exceedingly numerous. To check this, the Church in several particular
councils, besides the punishment of service, confiscation of goods, and public penance, decreed
sentence of excommunication (to be judicially pronounced) against laics, and deposition from
ecclesiastical rank against clerics, who had violently carried off, or helped to carry off, women. Pope
Gelasius (496) permitted the marriage of the abductor with his captive if she was willing, and they
had been betrothed, or had mutually discussed their future marriage prior to the Abduction.
Antecedent to the ninth century, however, the canons make no mention of Abduction (raptus) as a
matrimonial impediment, either diriment or impedient. In the Western Church, at least from the
ninth century, the marriage of the captor with his captive, or any other woman, was perpetually
prohibited. This was not, however, the universal church discipline, but rather the discipline
peculiar to those nations among whom the absence of strict laws made abductions more numerous.
The bishops of the Frankish nation felt the necessity of severe legislation to meet the evil, and
therefore, in many particular Councils, e.g. Aix-la-Chapelle (817), Meaux (845), etc., issued
stringent canons which continued as the peculiar law of the Franks until it was abolished by
Innocent III. Furthermore, the impediment was impedient, not diriment (according to the most
common opinion). Marriages celebrated in opposition to the prohibition were held to be valid,
although illicit. The Council of Meaux (845) forbade the abductor ever to marry the rapt woman,
but permitted his marriage with any other woman after he had performed the prescribed public
penance. Gratian ("Decretum Caus.", XXXVI, quaest. ii, ad finem) inaugurated a milder discipline.
He, relying upon the (supposed) authority of St. Jerome, taught that an abductor ought to be
allowed to marry the abducted, provided she was willing to have him for a husband.
After the publication of his decree in the twelfth century, this milder discipline was generally
observed and met with the approval of many popes. Finally, Innocent III ("Decret. Greg.", lib. V, tit.
xvii, cap. vii, "De Raptoribus") decreed for the universal Church (especially aiming at the perpetual
prohibition by the particular councils) that such marriages might take place as often as a prior
reluctance and dissent on the part of the woman should change to willingness and consent to the
marriage, and this (according to the common interpretation) even if the woman was in the power of
the captor at the time she consented. This decree practically did away with the impedient
impediment of Abduction, which was merged into the impediment of vis et metus. The Innocentian
law continued to be the ecclesiastical discipline up to the sixteenth century. The Council of Trent
introduced an entirely new discipline. To guard the liberty and dignity of marriage, to show its
detestation of a horrible crime dangerous alike to the purity of morals and the peace and security of
society, and to bar the criminal from gaining the result intended by his crime, the Fathers decreed:
between the abductor and abducted there can be no marriage, as long as she remains in the power
of the raptor; but if the abducted, having been separated from the abductor, and having been placed
in a safe and free place, consents to have him for a husband, let her marry him; yet,
notwithstanding, the abductor with all his advisers, accomplices and abettors, are by the law itself
excommunicated and declared forever infamous, incapable of acquiring dignities, and, if they be
clerics, deposed from their ecclesiastical rank. Furthermore, the abductor is bound, whether he
marries the abducted or not, to dower her with a decent dowry at the discretion of the judge
(Concil. Trid., Sess. XXIV, vi, "De Reform Matrim."). This law was to take immediate effect,
requiring no promulgation in individual parishes. Such also is the law in the Oriental Churches
(Synod. Mont. Liban., 1736, Collect. Lacens., II, 167; Synod. Sciarfien. Syror., 1888). The difference
between this law and that of the Decretals (Innocent III) is evident. According to the Decretals, the
woman's consent, given even while she was in the raptor s power, was deemed sufficient. The
Council of Trent does not consider such consent of any avail, and requires consent given after the
woman has been entirely separated from the control of the raptor and is dwelling in a place safe
and free from his influence. Should she desire to marry him, the marriage may be celebrated, the
priest having first obtained permission from the bishop (according to some) whose duty it is to
testify to the cessation of the impediment and that the dowry prescribed by the Council has been
made over and is subject to the sole use and discretion of the abducted. The general law of the
Church does not require the aforesaid bishop's permission, but individual bishops can and do make
laws to that effect. The Council of Trent by this law safeguarded the freedom of marriage (1) on the
part of the man, by allowing him to marry the abducted woman, and (2) on the part of the woman,
by protecting her from being coerced while in the abductor's power into a marriage against her free
will and consent. This impediment of Abduction (raptus) is one entirely distinct from that of vis et
metus. The latter entirely looks to the freedom of consent; the former, to the freedom of the place
where true consent must be elicited. Of ecclesiastical origin, this impediment is temporary and
public, and does not bind two unbaptized persons unless the civil law of their country invalidates
such marriages. It does, however, govern the marriage of an unbaptized abductor with a Catholic
abducted woman, and vice versa.
Amidst the conflicting opinions of canonists and moralists as to whether Abduction by
seduction, Abduction of a betrothed, Abduction of a minor against the will of her parents, or the
Abduction of a man by a woman, induces the impediment or not, it is necessary to remember that
this impediment is of Tridentine origin, and therefore the Council of Trent was sole judge of the
necessary conditions; that the Roman or any other civil law or any prior ecclesiastical law had
nothing to say in the matter; that the question under investigation was the impediment, not the
crime, of Abduction; and that in rebus odiosis, which this is, the words of the Council of Trent must
be strictly adhered to and interpreted. Four elements are essential in an Abduction in order to
induce thereby the Tridentine diriment impediment, to wit: (1) a woman; (2) change of locality; (3)
violence; (4) matrimonial intent.
(1) Any woman, whether moral or immoral, maid or widow, betrothed or not, even a public
woman, may be the object of a violent Abduction inducing the Tridentine impediment and
punishment. Lessius, Avancini, and others hold that a man is not guilty of Abduction who carries
off his betrothed. The Council of Trent makes no exception, hence we should not. The Abduction of a
man by a woman is not included in the Tridentine law. the contrary opinion (De Justis and other
earlier authors) is at variance with the language of the Council, which always speaks of the raptor,
but nowhere of the raptrix. A woman can be guilty of the crime of raptus; but the question here is
not about crime, but about the Tridentine impediment. She may be an agent or accomplice of the
abductor and, as such, incur the penalties decreed by the Council; but it does not admit her as
raptrix.
(2) Change of Locality. -- Two places are necessary to an Abduction -- one, the place from which,
the other, the place to which, the reluctant woman is violently taken, and in which she is also
violently detained. These two places must be morally (some say physically, some virtually) different
-- the one, from which may be her own or her parents' home, where she is a free agent; the other, to
which, must be subject to the power or influence of the abductor, where, though she is free in very
many of her actions, she is not perfectly free in all. It is not necessary that the place to which be
the house of the abductor; it suffices if it be under his control or influence. Two rooms or two stories
in a small dwelling, the home of one family; a street and an adjoining house; a public highway and
a nearby field, would not afford the necessary change of locality. Removal, though violent, from
room to room as above, would not induce the impediment under consideration, though some hold
the contrary opinion. In case of a large castle, or mansion, or tenement-house, where many families
dwell, the violent transference of a reluctant woman from a part where her family dwells to
another remote part where a different family lives would constitute sufficient change of locality. If
a woman is violently seized, v.g. in a room, and is violently kept there without change to another
room, or if she willingly, without any enticement on the part of the man, goes to a place and is
there violently detained with matrimonial intent, she does not suffer Abduction in the Tridentine
sense. It is a mere sequestration, or detention. Some jurists, however, think otherwise, claiming
virtual change (from state of freedom to that of subjection) to be sufficient to induce the Council's
impediment. Physical transference from one place to another, however, is absolutely necessary to
constitute raptus; virtual transference does not suffice. Should a woman be forcibly removed from a
place to which she went willingly to another where she is detained against her will with
matrimonial intent, it is Abduction.
(3) Violence. -- Abduction always presumes that the abducted dissents, and that her
unwillingness is overcome either by physical force, i.e. laying hands upon her, or moral force, i.e.
threats, great fear, and fraud equivalent to force. Mere importunities, fair words, sweet phrases,
gifts, and promises are not sufficient to constitute the moral force requisite for Abduction. It is
immaterial whether the principal, of and by himself, or through his agents and accomplices, uses
this force, moral or physical. Women as the agents of the principal, may exercise it, and not
infrequently do so.
(4) Matrimonial Intent. -- The intention or motive of the criminal act is all important. To induce
the impediment the intent must be to marry the abducted woman. Were the motive other than
marriage, e.g. vengeance, pecuniary gain, or gratification of lust, there would be no Abduction, no
impediment, no penalties (S. Cong. Cone., 23 Jan., 1585). This is evident also from the custom of
the Roman Curia, which, in all dispensations given or faculties granted to ordinaries to dispense in
eases of affinity, consanguinity, etc., prefixes "provided that the woman was not abducted on
account of this [marriage]". This impediment exists only between the abducted and abductor who,
of and by himself, or with the assistance of others, had carried her off with intent to marry her. No
impediment arises between the abducted and the agent or abettors of the Abduction. She could
validly, therefore, marry one of the agents or accomplices while still under the control of the
abductor. When the intention is doubtful, judgment is arrived at from consideration of the
circumstances. Thus, if a man violently carries off his betrothed or a woman with whom he has had
conversations looking to future marriage, it is presumed that his intention was marriage. If doubts
still remain, the law presumes the motive to be matrimonial. Where it is abundantly evident that
the initial motive of the Abduction was lust, it is not Abduction, but sequestration, or detention,
although afterwards, during the captivity, the captor promise marriage in order to attain his lustful
object. The contrary opinion, held by Rosset (De Matrimonio, II, 1354), Krimer, and others, is at
variance with the principle of law, that in crimes the beginning, and not what happens accidentally
is what the law considers. Were the intent twofold, v.g. lust and marriage, then the carrying off is
Abduction and induces the impediment. The Abduction must be proved, not presumed. The mere
word of the abducted woman, especially as against the oath of the so-called abductor and the
absence of all rumour, does not establish the fact. The existence of the Abduction once admitted, the
burden of proof rests upon the abductor. He must conclusively prove that the abducted willingly
consented to both Abduction and marriage. If she admits consent to the flight, he must still prove
conclusively that she gave willing consent also to the marriage; otherwise the impediment holds
and the penalties are incurred. Should he claim (in order to exclude impediment) that his motive in
the beginning of the transaction was not marriage, but lust, and that he proposed marriage in
order to attain his initial purpose, then he must, by the most conclusive evidence, establish his
assertion, since the law presumes that his motive was matrimonial.
PUNISHMENTS
The abductor and his advisers and abettors and accomplices in a complete
(copula not required), not merely an attempted, Abduction are, by the law itself (Tridentine),
excommunicated (not reserved), and made perpetually infamous, incapable of acquiring dignities; if
they be clerics, they also incur deposition from their ecclesiastical rank. The abductor is also bound,
whether the woman marries him or not, to dower her with a decent dowry at the discretion of the
bishop. The priest who celebrates the marriage while the woman is under restraint does not incur
the excommunication nor any other penalty, unless he has advised the abductor that he would aid
him in his Abduction by his presence and ministry. The agents and the like, in an Abduction of a
woman validly and freely betrothed, but unwilling to be carried off, do not incur excommunication
and other Tridentine punishments (S. C. Prop. Fid., 17 April, 1784). The vindictive punishments
are incurred, at least in the ecclesiastical court, by a declaratory sentence. The abducted woman,
not the abductor, has the right to challenge the validity of her marriage celebrated while under
control of the abductor. No particular time is prescribed by law, but she should, however, unless
prevented by reasonable cause, present her plea as soon as possible after her entire separation
from the control of the abductor.
DISPENSATION
The Church as a rule does not dispense with this impediment. It even
refuses to grant other dispensations, v.g. affinity, if the woman was abducted; indeed any
dispensation granted, in which mention of the Abduction has been omitted, is held as invalid. There
are some cases in which the Church has dispensed when it is abundantly evident that the consent
of the woman was really free, although circumstances prevented her entire separation from the
control of the abductor. The late Instruction of the Congregation of the Inquisition (15 February,
1901, in the "Analecta Ecclesiastica," Rome, 1901, 98) to the bishops of Albania (where Abduction is
of very frequent occurrence) refused a general repeal of the law for their country, adding that the
frequency mentioned, far from being a reason for relaxing, was rather a reason for insisting on the
Tridentine law; yet, where it was abundantly evident that the consent of the woman under
restraint was truly a free consent, and that there were reasons sufficient for the dispensation,
recourse should be had to Rome in each single case. Further, in the extraordinary faculties given to
bishops (20 February, 1888) for dispensing in public impediments persons in danger of death, the
impediment of raptus is not excluded. The civil codes of today, as a rule, do not recognize Abduction as an
impediment diriment to civil marriage, but consider it as a species of vis et metus. The codes of
Austria and Spain, however, still hold it as an impediment, and among the jurists of Austria there
is an earnest endeavour to make it an impediment absolute and perpetual, so that the abducted
woman, if still under control of her abductor, may not marry even a third party.
RIGANTI, Comment. in Reg., in Reg. xlix, nn. 46 sq.; SCHMALZGRÜBER, V, xvii, De Rapt. Pers., nn. 1-54,
GONSALEZ TELLEZ, Comment. Perpet., V, xvii; BERARDI, Comment. in Jus. Eccles., II, 81 sqq.; WERNZ, IV, Jus
Matrim, 408 sqq.; ROSSET, De Sac. Matrim., II, 1344 sqq.; VECCHIOTTI, Instit. Can., III, 234 sqq.; SANTI-LEITNER,
IV, 58-65; FEIJE, De Imped. et Dispens.; KUTSCHKER, Das Eherecht (1856), III, 456 sqq.; Analecta Ecclesiastica
(Rome, April, 1903); HOWARD, Hist. of Matrimonial inst., I, 156 sq., s.v. Wife-Captor; Acta Sanctae Sedis, I, 15-24; 54
sq.; GASPARI, De Matrim., I, 364 sqq.
P.M.J. ROCK
The 1913 Catholic Encyclopedia