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Neither Shalt Thou Kill Thy Spouse

For those readers who may have been quarantined from the American media for the last several months, a brief explanation may be in order. Terri Schiavo is a brain-damaged Catholic woman in Florida. Her husband, Michael, through the instrumentality of the courts and with the widespread support of the mainstream media, wants to eliminate her. The fight to save her life has been taken up by her parents, Florida governor Jeb Bush (a Catholic), the majority of the Florida legislature, and thousands of right-to-lifers around the world.

Despite this array of defenders of his wife, Michael Schiavo continues to probe a sympathetic court system looking for a “legal” way to starve her to death. Actually, Michael wants his wife’s food and water cut off and, given the body’s more urgent need for hydration, Terri might be parched to death before she starves.

Terri’s situation and that of her supporters is an illustration of how God takes unknown—and in many ways unremarkable—people and offers them the occasion for great personal heroism while presenting us all with an opportunity to illustrate and defend the fundamental principles upon which sound societies are built. While others have analyzed ably the chilling civil law implications for the United States should Terri be starved to death with court approval, I want to address an aspect of Terri’s case that involves the Catholic Church’s canon law.

The case raises several canonical issues. For example, regardless of how the civil law might view such deeds, euthanasia—the kind of death with which Terri is now threatened—falls under the stricture of canon 1397 of the 1983 Code of Canon Law and makes those who perpetrate such an offense (as well as those who cooperate in it, per canon 1329) liable to an ecclesiastical penalty “according to the gravity of the offense.” No one can doubt that euthanasia is a gravely immoral act (cf. Catechism of the Catholic Church 2277).

Last October, Terri was denied her right to receive the Eucharist, a denial that constituted a serious violation of her ecclesiastical rights. Even then, within the terms of the then-operative—albeit unjust—court order, her right to the Eucharist could have been honored without having to challenge the court order (see my article “Terri’s Right to Communion,” www.canonlaw.info). Here, though, I wish to look at another canonical aspect of this case that would impact not so much Terri but rather—potentially at least—her husband, Michael.

It is widely known that Michael has fathered a child by another woman since Terri’s hospitalization and that he awaits the birth of a second child by the same woman, one whom he reportedly hopes to marry once his current wife is dead. Would the starvation death of a disabled spouse, brought about at the request of the other spouse—albeit with some kind of civil court approval—clear the path to the Catholic altar for the survivor spouse? The short answer is no.

(I do not address specifically Michael Schiavo’s status in this part of the discussion because I do not know whether Michael himself is Catholic or whether he or his apparent intended spouse desires a Catholic wedding. But the principles of a case like this are applicable to others in similar circumstances and need to be understood in order to address them correctly.)

When two people marry, there arises between them a “bond” of marriage, known in canon law as ligamen (cf. CIC 1085). This marriage bond is what canonically prevents either spouse from marrying someone else so long as the other spouse is alive, even if the couple has obtained a civil divorce or dissolution of their marriage. Ligamen is the canonical enforcement of the familiar wedding phrase “till death do us part” and, with rare exceptions not applicable in a case like this, only the death of one spouse can free the other from the bond of marriage.

Now, the Church has been around for a long time, and she is, in Pope Paul VI’s memorable phrase, “an expert in humanity.” The Church has seen people try to get around the demands of permanent Christian marriage, including even the killing of one spouse in order to marry another. It is obvious that the death of a spouse, natural or otherwise, ends the bond of the marriage that once existed. But if that death is brought about by the surviving spouse, it is quite possible that canon law will step in to prevent the survivor from gaining by the misdeed and attempting another marriage in the Church. It does this by establishing on the killer spouse an impediment to marriage known as crimen (cf. CIC 1090).

If you think you see in the Latin word crimen a predecessor of our English word crime, you’re right. Both terms are getting at what is—in the eyes of the Church at least—criminal behavior. According to canon 1090, “One who, with a view to entering marriage with a certain person, brings about the death of one’s own spouse or of the other person’s spouse, invalidly attempts that marriage.” Thus the Catholic Church prevents someone from entering a marriage when, in order to be free to contract such a marriage, that person had brought about the death of a former spouse.

The impediment of crimen was present in the 1917 Code of Canon Law (see 1917 CIC 1075), and even before that it had been a part of ecclesiastical law for many centuries. Today’s canon law on crimen is, in comparison with earlier law, much simplified. Reliable canonical commentators such as John Beal, Thomas Doyle, and Javier Hervada believe it means just what it says. Focusing our discussion, then, on factors suggested by the Schiavo situation, three things are required in order for the canonical impediment of crimen to apply.

1. The original parties must be validly married. This fact that can be presumed whenever there is a public celebration of a Catholic wedding.

2. At the time of the killing, the surviving spouse must be intending to enter marriage with a specific person once free of his prior marriage bond. This is a question of fact to be determined on a case-by-case basis. Evidence such as positive statements about marrying another or behavior consistent with future marriage plans can be used to show this intention to marry. The fact that one might have multiple motives for wanting to cause the death of one’s spouse (say, also wanting to save money on health care) would not obviate the desire-to-marry motive.

3. The death of one spouse must be brought about by the surviving spouse. This does not mean, though, that the survivor spouse needs to have struck the deadly blow. Commentators agree that death brought about at the behest of the survivor qualifies for imposition of the impediment. So even if the death comes about with the approval a civil court and no civil liability can be attached to the instigator, one is still burdened by the impediment if, under the Church’s moral analysis, one is found to have been morally responsible for the death of one’s spouse.

Once incurred, the impediment of crimen never ceases on its own. The passage of time will not erase it, even if, after many years, people more or less forget about the dead spouse. Pastors cannot grant a dispensation from this impediment, nor can bishops. Even if a cleric is found to witness the wedding of one laboring under the impediment of crimen, such an attempt at marriage is null and of no worth in the eyes of the Church.

Only the Apostolic See can dispense from the impediment of crimen (cf. CIC 1078 § 2, n. 2), and commentators agree that the Holy See rarely considers such dispensations. Going back at least a hundred years, they can find no example of a dispensation from the impediment of crimen being granted where the fact of one’s moral responsibility in the death of a former spouse is public knowledge.

Of course, there are those who could say that anyone who is willing to kill a spouse in order to marry another is not likely to worry too much about what the Church thinks about their second wedding. There might be some truth in that, but the fact that some people are going to disregard moral and canon law in their decisions does not mean the Church cannot, or should not, enunciate clearly the rules by which we should strive to live. The matrimonial impediment established under canon 1090 is not—and is not intended to be—the Church’s primary response to the threat of legalized euthanasia. But it is part of that response, and it would behoove us all to know that, in its way, it too is there to defend the innocent.

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