Nonmarital Sex in Gratian

Gratian considered the sex urge a defect, an illness or weakness of the human mind and body.⁸³ Voluntary yielding to sexual feelings he deemed culpable, but involuntary sexual experiences, such as wet dreams, involved no offense, al-

^7gD.

⁷⁷D. 30 c. 14; Schimmelpfennig, “Ex fornicatione nati,’’ p. 31.

^7sC. 31 q. 1 c. io-13 and d.p.c. 10; C. 32 q. 4 c. 1; Rosambert, Veuve, pp. 118-19. ⁷⁹D. 34 e. 4-5.

^s*¹D. 34 c. 6; C. 32 q. 2 c. 5, 11-12; C. 32 q. 4 c. 9.

⁸¹D. 34d.p.c. 3; PlochI, Eherecht, p. 50; but cf. Freisen, Geschichte, p. 65.

⁸²C. 28 q. 1 d.p.c. 17; Pldchl, Eherecht, p. 51; Esmcin, Mariage 2:113-14; CaselIi, “Concubina pro uxore,” pp. 218-20.

^mC. 15 q. 1 pr. and d.p.c. 2.

though they might constitute a source of pollution.^[978] Intercourse, whether in marriage or not, also produced ritual pollution, as Gratian knew from the Re­sponsa Gregorii. Any experience that led to orgasm produced pollution and re­quired cleansing before the person could receive the eucharist or enter a church.^[979] Christians were obliged to keep their sexual impulses under control and to suppress any sexual promptings they might feel outside of the marriage bed. It behooved all Christians to maintain virgin minds in chaste bodies.^[980] The rejection of sexual temptation was particularly important for women, who were even more susceptible to sexual corruption than were men, according to Grat­ian, and who could be led astray not only by overt sexual advances, but even by social gestures such as talking, kissing, and embracing.^[981]

Sexual intercourse meant yielding to human frailty—it was always a sign of moral weakness. Gratian, like many of his contemporaries, had learned this lesson from patristic authorities and writers on penance.

Gratians typology of sex offenses was conventional. The basic category was fornication, which included any type of intercourse save for that between hus­band and wife.^{[983] [984] Adultery was an especially serious type of fornication in which a married person had sexual relations with someone other than his or her legiti­mate spouse.[985] Gratian was aware that his sources sometimes used both “for­nication” and “adultery” metaphorically to refer to deviations from the Chris­tian faith and that they often used these terms figuratively to describe sexual temptations and fantasies.[986] Gratian himself, however, generally used these terms carefully and literally. He categorized both adultery and fornication as major offenses against the Church’s law and considered both of them punish­able by the courts as crimes.[987] [988] [989] [990] He outlined in the Decretum a hierarchical scale of sex crimes in which simple fornication (which some called “average inconti­nence”) ranked as the basic offense, followed in order of increasing seriousness by adultery, incest, and unnatural sex.98}

Fornication

Fornication, the commonest and most basic sex crime in Gratian’s scheme, was a serious offense, comparable to perjury and even to some types of homicide.⁸⁴ Fornication, Gratian asserted, was prohibited by the Scriptures and, contrary to popular belief, could not take place under any circumstances without guilt, so long as the offender knew what he or she was doing.⁸⁵ More serious than fornication was adultery.⁸⁶ Like fornication, adultery was excused only by igno­rance: it was a legitimate defense to an adultery charge to plead that the of­fender believed that the other woman was his wife.⁸⁷ It was not an acceptable defense, however, for the offender to plead that he had slept with a woman other than his wife only in order to beget children.⁹⁸ A procreative intention did not excuse the crime.

Adultery

Just as men and women were equally bound by their conjugal duties, Gratian considered that each bore equal guilt if he or she strayed into adultery. Since adultery by a man was just as much a crime as adultery by a woman, the punish­ments for both should be the same.⁸⁸ When the innocent partner became aware of the spouses infidelity, he or she was obliged to refuse further marital rela­tions, unless or until the unfaithful one broke off the outside relationship and did penance for it.¹⁰⁰

Gratian noted that earlier writers had differed on the question of whether adultery constituted a bar to subsequent marriage between the participants. Some authorities had claimed that an adulterous couple could never marry each other,¹⁰¹ others ruled that an adulterer could marry his mistress provided that he had done penance and that the former spouse was dead.¹⁰² As usual, Gratian attempted to resolve the conflict of authorities by distinguishing different types of situations. If the adulterer and adulteress had plotted the death of the first spouse, or if they had agreed during the lifetime of the first spouse that they would marry once the spouse was dead, then they should not be allowed to wed. If, however, there had been no prior agreement and no involvement in

^wC. 3 q. ii d.p.c. 3.

⁹⁵C. 34 q. 2 d.p.c. 7; C. 32 q. 4 d.p.c. 10; C. 14 q. 6 c. 4; C. 27 q. 1 c. 20.

⁹⁶C. 32 q. 5 d.p.c. 14 and c. 15-16; Alesandro, Gratians Notion, p. 88.

⁹⁷C. 34 q. 2 c. 6.

⁹⁸C. 32 q. 7 c. 27.

"C. 32 q. 5 d.p.c. 22 and q. 6 pr., as well as C. 32 q. 4 c. 4; C. 32 q. 5 c. 23; and C. 32 q. 6c. 4-5.

¹⁰⁰C. 22 q. 4 c. 21; C. 32 q. 1 c. 4-8 and d.p.c. 10.

¹⁰¹C. 31 q. 1 c. 1 and 3.

¹⁰²C. 31 q. 1 c. 2.

the first spouse’s death, then the adulterous pair might marry, provided they first did penance for their offense.^[991]

Gratian strongly disapproved of private vengeance for adultery and cited several authorities who had forbidden Christian men to slay their unfaithful wives.

The status of the children of an adulterous union posed difficulties. Again Gratian found conflicts among his sources: some had held that the sins of the parents should not be visited upon the children; others contended that the off­spring of adultery should be excluded from positions of honor and especially from the priesthood. After setting forth numerous authorities on both sides of the issue, Gratian came down on the side of those who taught that adultery created an irregularity in the offspring that precluded their ordination.^{[993] [994] Here again, as with consanguineous marriage, Gratian relied upon the power of dis­pensation to temper the punishment that strict law required.100}

Prostitution

Gratian adhered to patristic precedent in his treatment of prostitution. He de­fined prostitution through a citation from St. Jerome, who had emphasized the notion that the essence of prostitution lay in promiscuity, rather than in the mercenary nature of the transaction between the harlot and her client.^[995] Thus a woman who took many lovers was a prostitute, whether she took money for her favors or not. Financial gain was a secondary consideration in Gratian’s treat­ment of the topic.

Although he quoted St. Augustine’s statement that it was an offense either to be a prostitute or to patronize one of them, Gratian was more keenly concerned with other aspects of the subject, especially questions about marriage to prosti­tutes.^[996] While he cited authorities who either strongly discouraged marriage to a prostitute or flatly forbade it, Gratian was prepared to distinguish between different situations.

Practicing prostitutes, according to Gratians authorities, were tainted with infamia and thus suffered all the legal disabilities attached to that condition.^[1000] The children of prostitutes, however, should not be punished for the sins of their mothers,^[1001] although they were ineligible for ordination.^[1002]

Rape and Abduction

Raptus meant for Gratian either abduction of a girl without her parents’ con­sent (even if she was a willing party to the abduction) or intercourse with her against her will.^[1003] He thus distinguished between rape and other kinds of sex crimes on the basis of the violence employed against the persons who had right­ful control over a woman’s sexual relations, namely either the woman herself or her family.^[1004] By his willful act, the rapist violated both the rights of his victim and of her family, stealing something over whose disposal they had rightful con­trol.^[1005] Gratian also distinguished between rape, where violence was used to secure the attacker’s will, and seduction, where a girl was induced by guile and promises to agree to illicit sexual relations.^[1006]

Violence was thus a necessary element in the offense of rape, regardless of whether the force was directed against the victim’s family or against the victim herself.

According to some earlier writers marriage between a rapist and his victim remained forever impossible, even if, after the rape episode, both the girl and her family consented to it.^[1008] Gratian had serious doubts about this teaching. Certainly, he maintained, if the victim had previously been betrothed or mar­ried to someone other than her abductor, then she ought to be restored to her husband or fiance when she was liberated from her abductor s control.^[1009] If the victim of an abduction or of forcible sexual intercourse later consented to marry her assailant, however, and if her parents also consented to this marriage, then Gratian was prepared to allow the marriage, provided that the rapist repented of his unlawful actions and performed appropriate penance.^[1010]

Gratian knew, of course, that royal law and folklaw often prescribed the death penalty for rape or abduction, but he emphasized that in ecclesiastical law the appropriate remedy for rape was excommunication.^[1011] He considered the rape or abduction of nuns especially heinous and apparently felt that the extreme penalties for rape should apply in these cases, whether the nun was a willing accomplice to the episode or not.^[1012] Although he expressed no opinion as to whether the death penalty was justified in ordinary rape cases, Gratian maintained that if the abductor and his victim took refuge in a church, the per­petrator must be granted immunity from capital punishment.^[1013]

A woman victimized by forcible sexual molestation, Gratian added, should not be held guilty either of fornication or adultery, since she had not been a willing participant.^[1014] But even an unwilling victim of sexual duress, he con­cluded, could not subsequently be considered a virgin; even if she incurred no blame in the incident, she was ineligible to become a consecrated virgin, since, without any fault on her part, she had forfeited that status.^[1015]

Other Sex Offenses

Gratian paid scant attention to other sexual offenses among the laity. While he noted the civil law penalties for sexual corruption of either boys or girls and cited some authorities who reprobated homosexual intercourse and other “un­natural” sex acts, Gratian gave little space to these matters. He made it plain

Tiie Clergy

that he considered deviant sex more heinous than either adultery or fornica­tion, but he failed to specify penalties for these offenses.¹²⁸ He also included without comment an early conciliar condemnation of cross-dressing.¹²⁹