cormacburke.me.ke

[English version: Studia canonica 26 (1992) 244-255]

I.          THE FACTS

1.         In 1957, when she was twenty years old, the Petitioner entered a religious order where she spent twelve years. She first met the Respondent in 1964, when she began graduate studies in sociology at X University where he was Professor of this subject. A normal teacher-student relationship continued over almost five years, until she received her Masters degree. From Nov. 1968 and during the first half of 1969 she had a relationship with a priest. She applied for a dispensation from religious life in Feb. 1969. The Respondent having begun to show his interest in her, in early July she broke definitively with the priest, and accepted the professor's proposal of marriage.

            They were married in August 1969 when he was 44 and she 32 years of age. They had four children over almost 10 years of what seemed to be a very happy married life. Trouble began toward the end of this period when she fell for another priest. This led to their separation, and to their divorce in Sept. 1983.

            She then addressed a petition to the diocese of St. XX for a declaration of nullity of the marriage. The case began there but, at the Respondent's objection, was called to YY. After a lengthy instruction in which some 30 witnesses were examined, the one-Judge Court handed down an Affirmative decision, on May 2, 1986, on the grounds of lack of due discretion on the part of the Petitioner. Appealed by the Respondent, the case went to the Appellate Tribunal where, after a new instruction, a second Affirmative decision was given on Dec. 30, 1986.

            The Respondent now applied to the Rota, requesting a new proposition of the case. He appointed his own rotal Advocate, an Advocate ex officio being appointed for the Petitioner. After an examination of the Acts of the case (as they had then been received in the Rota), the new proposition was granted by a Decree of our Turnus of May 23, 1988 (cf. Monitor Ecclesiasticus, 115 (1990-III), pp. 341-348). Considerable delays followed, due to inactivity on the part of the Respondent and his advocate. On May 17, 1990 the terms of the controversy were fixed: "Whether the nullity of the marriage is proved, on the grounds of a lack of discretion of judgment in the Petitioner?" The first meeting of the Turnus to decide the case resulted in a "dilata", so that the opinion of a court expert at this level could be sought. The peritia having been carried out, the briefs of the lawyers examined as well as the Observations of the Defender of the Bond, we today answer the doubt proposed.

II.        THE LAW

2.         Canon 1095, 2 states: "They are incapable of contracting marriage ...

who suffer from grave lack of discretion of judgment concerning essential matrimonial rights and duties which are to be mutually given and accepted".

3.         Marriage is the common aspiration and vocation of the vast majority of mankind. There exists a natural right to marry, which the Church has always regarded and defended as one of man's most inviolable human rights. It follows that to be incapable of consenting to marriage (in the case of an adult), is an extraordinary circumstance and handicap that must correspond to some extraordinary defect in a person's physical or psychic makeup

            In his addresses to the Rota of both 1987 and 1988, Pope John Paul II dealt with consensual incapacity under c. 1095. Without distinguishing nos. 2 or 3 of the canon, he insisted that incapacity must be the result of a grave anomaly affecting man's spiritual faculties - mind or will. The Pope's words leave no doubt that, prescinding from technical or medical classifications, only a serious disorder or pathology of the human «psyche» can invalidate consent. "An argument for real incapacity can be entertained only in the presence of a serious form of anomaly which, however one chooses to define it, must substantially undermine the capacity of understanding and/or of willing of the contracting party" (AAS 79 (1987) 1457); "only the more serious forms of psychopathology are capable of undermining the substantial freedom of the person" (AAS 80 (1988) 1182). Here we clearly have an authentic interpretation that gives needed and mandatory guidance to all Tribunals on a matter of the greatest importance.

4.         It follows that a plea for nullity, based on c. 1095, should not even be accepted by a Tribunal unless the facts alleged could correspond to some grave psychic anomaly, present at consent ("An argument for real incapacity can be entertained only..."). If there is no pre-wedding (or even post-wedding) medical history of some definite psychopathology, if there is no allegation of a serious psychic disorder, if all that is referred to is simple "immaturity" or commonplace character defects, etc., then the Tribunal should realize that there is no "fumus" to the plea, and should not accept it.

5.         In judging these cases, Courts have to be more concerned about the proof of the existence of some psychopathology, and of its incapacitating gravity, than about the medical terminology used to describe its symptoms (this terminology, as is well known, is constantly evolving). This is clear from the Popes's words when he insists on the need for the presence of "a serious form of anomaly, however one chooses to define it".

6.         The possible presence of some serious pathology is the first criterion that will influence a Judge in deciding whether the services of a "peritus", or professional (psychiatric or psychological) expert, are called for or not. Canon 1680 says: "In cases of impotence or defect of consent due to mental illness [mentis morbus], the judge is to use the services of one or more experts unless it is obvious from the circumstances that this would be useless". So, putting this canon together with the Pope's authentic interpretation, it is only if there are some indications of the presence of a serious illness ("morbus") that an expert should normally be called. As the Commentary of the Canon Law Society of America on this canon notes: "whenever a marriage case on one of those grounds [c. 1095] seems to involve a psychopathology or mental disorder (mentis morbus), the services of an expert are in order" (The Code of Canon Law. A Text and Commentary, 1985, p. 1013). If there are no reasonable indications of a morbus, the services of an expert are not needed. This is a matter for the Judge to decide, case by case.

7.         The foregoing could suggest the following practical guidelines:

            a) a case based on clearly trivial grounds should not be accepted; the judge can and should reject the libellus, if there seems to be no foundation whatever to the grounds alleged (c. 1505, § 2, 4º);

            b) a case based on rather unsubstantial grounds may be accepted, but, in principle, can be heard without any need for a "peritus" (unless subsequent evidence begins to suggest the possibility of some grave psychic condition);

            c) a case which prima facie indicates the possible presence at consent of some grave psychic anomaly (and which of course should be accepted) does normally call for a "peritia" or expert opinion;

            d) An Affirmative decision on consensual incapacity requires a "peritia" in support: because an Affirmative decision must be based on the presence - also medically substantiated - of a grave psychic anomaly;

            e) A Negative decision does not need the backing of a "peritia". A Negative decision, in other words, may be given even against the expert opinion, provided that the Judges consider that it is not in accordance with the burden of the evidence that emerges from the rest of the Acts.

8.         In relation to this last point, it must not be forgotten that it is the whole of the Acts, and not just the "peritia" alone, which has to provide the juridic proof of the presence (or otherwise) of a grave psychic anomaly causing consensual incapacity. It is the Judge's competence and responsibility to weigh the Acts, to see if they bear out the presence of an anomaly that had substantially undermined the person's mind or will. To do this is of the very essence of his judicial mission. Where expert opinions exist, they, according to c. 1579, have to be considered simply as one more (medically qualified, but in no way juridically conclusive) element of the instruction of the case.

9.         In the case before the Court, the affirmative Sentences given in first and second instance rest largely on the argument that an invalidating lack of discretion of judgment is shown by marrying a person for whom one lacks sensitive or emotional love; or by choosing to marry for other motives than love. This argument is not acceptable.

            In most people's cases, the decision to marry is usually influenced by strong feelings of romantic love; in other cases it is cooler and more reflective. It is arguable that more discretion, and not less, is shown in the latter decision (cf. case of Dec. 16, 1987, coram the undersigned Ponens, nos. 4-6). Besides, the decision to accept another person truly as one's spouse, inasmuch as it shows a singular esteem for that person, can always be regarded as an act of love, in the truest sense. But this love does not have to be accompanied by emotional feelings, nor does it gain any essential "discretion" if it is.

10.       The motives for which a person decides on a marriage seldom give grounds for concluding to a grave defect of discretion. For the purposes of c. 1095, discretion must be examined in relation not to the motives for marrying, but to the essential rights/obligations of matrimony itself. No proof of a lack of discretion is provided, for instance, by showing that a person married mainly out of a wish to have children. The desire to start a family is one of the major natural motives for marrying, at least of equal importance with romantic or sexual love. In fact, the person who marries out of a deep desire to have children usually shows a more mature and discreet understanding of marriage than the one who marries simply out of romantic love, for the former person is more likely than the latter to have reflected on the demands and obligations of married life.

11.       While it is possible to use "discretion" in the sense of a prudential or wise choice of a partner for marriage, this is not the discretion contemplated under c. 1095. People very often make a choice of a spouse which others regard as unwise (and yet many such marriages work out very well); but even if such a choice were generally considered imprudent, this, from the juridic point of view, is irrelevant as an index of the discretion required for valid consent. Invalidating lack of discretion must relate not to the person chosen as spouse, but (as the canon specifically states) to the essential rights and duties of the institution of matrimony itself.

12.       That people marry without knowing each other in depth is perhaps a sign of imprudence, but not of any invalidating lack of discretion. The object of the latter must always be one of the rights/duties which are essential to matrimony, not simple self-knowledge, or knowledge of the other party, or an adequate assessment of how the two personalities are likely to get on. It is not the correct appraisal of persons, but the ability to make an adequate judgment of essential marital rights and duties, that concerns the law.

13.       It cannot be too strongly emphasized that testimony (no matter how voluminous) to slight character defects or normal emotional strains is totally insufficient to justify a conclusion of grave lack of discretion. What is absolutely needed is evidence of a serious psychopathology. "A mere psychopathy, which is not a true illness ["morbus"], does not of itself render the person suffering it incapable of giving valid matrimonial consent" (c. Di Felice, Dec. 12, 1970, SRRD, vol. 62, p. 1153). "Not every lack of equilibrium or maturity is sufficient to bring about the nullity of matrimonial consent; this can only be caused by a defect such that as to make the person incapable of a free choice or of assuming the essential obligations, and in particular the three "bona", of marriage" (c. Pompedda, July 3, 1979, SRRD, vol. 71, p. 388).

14.       The purpose of an instruction is to seek out, by means of pertinent questions and concrete answers, the testimonies, opinions and facts that are relevant to the particular case being judged. A bad or poorly conducted instruction is an obstacle to the process of justice. Civil judges generally try to keep witnesses to the point; some ecclesiastical judges seem rather to encourage them to ramble at will. If c. 1553 states that "It is the judge's responsibility to curb an excessive number of witnesses", it is equally his responsibility to curb excessive loquacity, or simple irrelevance, on the part of witnesses. Not to do so is to facilitate a bad instruction. It must be added that the mode of instruction used by some Tribunals seems to contribute to this. Witnesses, instead of being asked concrete questions related to the specific juridic grounds at issue in the case, are encouraged to discourse at length on all or any aspects of the parties' background, education, life history, character, etc. As a result they are let lose themselves (and lose the Judges) in a maze of trivial and irrelevant details.

15.       It may be observed in passing (also because it is pertinent to the case before the Court) that c. 1553 authorizes the Judge to put a reasonable limit on the number of witnesses which the parties wish to call. The canon in no way empowers him to select - for consideration as evidence and for inclusion in the Acts - among depositions already made. The Judge, according to his conscience, will attach more or less importance to each deposition; but it is his duty to weigh all, and to include all in the final Acts. Otherwise, a court of higher instance would be impeded from considering all the evidence.

III.       THE ARGUMENT

16.       The Judge of first instance, incorrectly invoking c. 1553, excluded many depositions - no less than 17 - from the Acts of the case (I. 425; cf. II. 129). Not a single word of the evidence of these witnesses is quoted in either instance. This "unjudicial selectiveness" (as the Respondent described it) was among the motives for the granting of the new proposition of the cause (cf. Decree of May 23, 1988, n. 2 c). The first instance Court said that all this evidence was excluded because it "was not deemed to be helpful or necessary or all that insightful" (I, 425). It seems to us on the contrary that much of it bears very substantially on the issues of the case. When this evidence arrived (it was necessary to request it from the Rota), we realized that there was no need for the further instruction which we had previously contemplated. The Judges of both instances speak of it as the "Unincorporated Testimonies"; we refer to it as Vol. III of the Acts.

            Examination of the full Acts thus constituted (amounting to more than 800 pages!) makes it clear that they offer no indications of any grave defect of discretion on the Petitioner's part. Therefore, as argued in the Law Section, there were little grounds, and no necessity, for seeking the opinion of a court expert. This is one of those cases where the likelihood of any grave psychic anomaly being diagnosed is almost nil, and moreover where, if it were nevertheless forthcoming, it would have to be rejected by the Judges as being contradicted by the overwhelming weight of lay evidence. In view of this, we first decided to call no expert opinion in this instance, as being manifestly useless. When we met in Turnus to decide the case, however, we had second thoughts. This was not because of any difference among us as to its merits; after a full discussion our feeling was simply that, given the deep divergence of views between the parties to the case and the great store which the Respondent set by its proper clarification, an expert should be nominated, not only to give a professional assessment of possible psychic anomalies on the part of the Petitioner, but also to evaluate the "peritia" already given. And so the Ponens issued a "dilata", so as to enable a new expert opinion to be sought.

            The second instance Judges observe: the "volume of testimony ... is clearly excessive. However, because of claims of injustice and improper procedure made by the Respondent, it was necessary to take everything into consideration"... (II, 139-140). It is anything but clear that this is what they did. On the contrary, while one presumes that the Judges have read the Acts, there is no indication that they have tried to ponder and analyse the evidence given by the various witnesses, to weigh the contradictions or inconsistencies between them, and to endeavor to resolve them. In a Sentence of 29 pages, there is not even one reference to any concrete passage of the Acts, and not a single word of any of the witnesses is quoted (unless we allow an exception on the penultimate page where the Advocate is quoted as quoting some brief comments of two witnesses). They note the Respondent's objection -"Robert Y speaks of 'strongly conflicting testimony' ruling out the possibility of moral certitude" (II, 143) - but in no way resolve the problem he poses.

17.       Credibility of the Petitioner. The First Sentence says: "Not one witness questioned the credibility of Jeanne" (I, 430). But, of the witnesses whose evidence was excluded, JD doubted her honesty and credibility (III, 74/7); as did LF (ib., 86 in medio; cf. 93; 129). Both repeated this in second instance (II, 60; 74); as did many of the others: JT (II, 53); JW (56); EV (63); DT (70-71); WM (77). None of this is mentioned by the Second Sentence.

18.       Maturity of the Petitioner. Her mother, asked if she was mature when she married, replies, "she was mature in a lot of ways"... (I, 287). RL, a friend of both parties and best man at the wedding, says: "she is a very practical, down to earth kind of person, very resourceful and self-reliant and capable of managing things. She is a very pragmatic person" (I, 355/6). One of her former fellow-religious says that in religious life, "she seemed like one of the most adjusted of those within our class" (I, 325/13). The Respondent's brother states: "In my judgment they were more than mature or responsible to marry" (I, 372/5). For other witnesses who testify that she was mature, see I, 315/8; 318; 386/5 (cf. 427-428; and especially 429).

            Of the "Unincorporated Testimonies", WB, a friend of the Respondent for 30 years, and of both from their marriage, testifies; "I feel that both parties were very mature and responsible in reaching the decision to marry" (III, 65). The maturity of both is confirmed by JT (III, 66/4 & 5), BD (III, 69), JD (III, 76/20). Archbishop AZ states categorically: "They were very mature people sound in mind and body" (III, 60/5).

            Her former fellow-religious testify that she was good at her job of teaching: "She did enjoy teaching and did a good job and was well liked by the students" (III, 25); "she taught well, she was devoted to her class and to her work" (III, 36/7). KK testifies that the Petitioner found religious life and discipline difficult, but answers negatively to a question if her commitment to it was superficial: "I don't think I would call it superficial. I think she tried real hard" (III, 19). Sr. IP says, "At the time when Jeanne entered religious life I believe she was convinced that was the place she wanted to be... Jeanne was not truly happy in the religious life, because she was too tied down and could not exercise her independence as she would have liked" (III, 25). There is evidence here of a serious approach to a religious vocation - "trying real hard"; an effort prolonged over 12 years, despite difficulties. This can scarcely be taken as a sign of immaturity or lack of will.

            In any case, there is evidence that, as a nun, the Petitioner was not very retired or cut off from the world. One of her former fellow-religious says that in the convent she was "a strong, visionary leader for change in our community" (I, 322). Over her latter years in religious life, she took part in a "radical group" (III, 30), in a "social justice" demonstration (I, 331; III, 35; 41), socialized (III, 25), and had a fairly serious affair with a priest.

19.       Some witnesses speak of the Petitioner's impulsiveness (I, 426-428; III, 42/14). The Respondent insists that "despite appearances to the contrary, impulsiveness is alien to her makeup" (I, 212). Her sister-in-law testifies: "If you've ever been shopping with her you'd know she was never impulsive at all! She takes hours to make decisions and looks at it from every single angle. She is a very thorough researcher and not at all impulsive in that way" (I, 307/10). The Petitioner herself, while claiming to be impulsive, adds nevertheless, "I do assess things from all angles though" (I, 260).

            From reading the Sentences, one might easily conclude that she first learned of the Respondent's interest in her only a week or two before the actual decision to get married. In fact she herself testifies that it was in March or April - four or five months before the wedding - that she became aware of this interest (I, 78).

            Some witnesses made the suggestion (which was taken up by the Judges) that the Petitioner's decision to marry was provoked by over-concern for security, as a result of her having just left the convent. Her mother rejects this: "I don't think she was panicky in that sense because she's a very resourceful girl... she talked about getting out and getting a job..." (I, 288). Sr. HO (her former novice mistress) testifies that her decision to ask for a dispensation was not reached in haste: "she had been thinking about that for quite some time, she told me" (I, 314/5); "... she was mature enough to marry, yes" (I, 315/8). The Respondent describes her as "an incredibly strong-willed woman who plans every move with infinite care" (I, 469).

20.       The Judges argue that since a lack of due discretion is easily provoked by a state of emotional conflict, this can be properly concluded to have happened in the case before the Court, given the Petitioner's decision to give up the man she really loved, and to marry another whom she did not love (I, 435; cf. II, 150).

            First of all, it is by no means clear that she lacked love for the Respondent when they married and for most of the years of their married life. The Petitioner herself, asked if there were sexual relations with the Respondent before the marriage, answers: "No. There was a sharing of affection but we never did sleep together" (I, 86/29). She further testifies to their reaction when they knew they were going to have their first baby: "Those were happy times... After the baby was born everything was fine... I loved his family... It was good times" (I, 91-92/34; cf. I, 95/45). The Respondent: "I thought for nine, upwards of ten years that we had a wonderful marriage" (I, 151). When asked about his claim that there were no serious frictions during almost ten years of married life (I, 150/46), she comments: "that's because I kept all of my feelings to myself and internalized it which I admit was a huge mistake on my part" (I, 177). She agreed that "there were almost no arguments" (I, 179).

            His brother "detected no problem in the marriage until... 1979" (I, 373). RL: "They seemed to be in love. It was kind of romantic love... I'm sure there was some love and affection there" (I, 357/15). Her friend LR testifies to the happiness of the first years of their married life (I, 341/11). So does his sister (I, 381/5-7).

21.       Of the "Unincorporated Testimonies": her sister-in-law remembers her as being very happy the wedding day (III, 16). Sr. IP says she visited the parties during their marriage: "They seemed to be happy together then and seemed as if they could make this marriage work" (III, 26). MW also visited them, when they had three children: "she seemed to be very happy and I saw nothing adverse" (III, 53/3). SH saw them several times after their marriage. She noticed no special difficulties on her first visits ("I didn't realize there was any tension then"). It was only on a visit in 1979 (10 years after the marriage) that she saw "they were in big trouble" (III, 42/17). Another of her witnesses, MG, who got to know her as a neighbor in late 1976 or 1977, says, "At the beginning I had no reason to suspect there were problems" (III, 47/6).

            The omission of the evidence of Archbishop AZ is particularly surprising. He was a priest-student of the Respondent in 1965-67 period, at the same time as the Petitioner; knew both well, and came especially from England to be present at the wedding (at which he concelebrated: I, 455). He says, "They got married because they were deeply in love with each other. This was very clear to all who knew them" (III, 59/5). "Knowing this couple and their educational background, I am sure that everyone would have given this marriage 99.9 chances of success" (III, 60/5).

22.       The concluding considerations of the Second Sentence contain the admission, "There is a good deal of testimony indicating that Jeanne X gave the appearance of being a loving and devoted wife and mother for a time", with the comment: "but when this is viewed in the total context of her life and what happened after she was married for a time, there is little doubt that she was staging a show and that she was not able to carry it off because a genuine bond of love and acceptance was lacking from the very beginning" (II, 149-150). There is indeed quite a bit of evidence - especially in the "Unincorporated Testimony" - that "for a time" (in fact for the best part of ten years) the Petitioner was a loving wife and a dedicated mother; but the Judges simply ignore it, concluding that in this "she was staging a show" (which, if it were a fact, would show a truly unusual degree of deliberate will-power and perhaps of malice; but not any lack of due discretion).

23.       Even if it were conceded that she was not deeply "in love" with the Respondent, there is abundant evidence that her decision to marry him was the result of very mature calculation. No doubt there was some conflict of emotions on her part, in the months before her marriage. The Judges however ignore the possibility that such conflicts can be deliberately resolved into a conscious and clear-minded choice for marrying someone toward whom one perhaps feels emotionally less attracted.

            The first instance Judge says, "She married to satisfy her perceived needs, not to love and accept the person of Robert Y" (I, 434). But, to marry to satisfy perceived needs implies very deliberate choosing, and is more an exercise than a lack of discretion. It is peculiar that the Judge speaks very positively of the Petitioner's "very discreet decision to break off the relationship with Charlie..." (I, 432), and yet denies the presence of discretion in the simultaneous decision to marry Robert.

            The Judge, having listed the many motives she had for marrying the Respondent, adds, "The Court admits that many of the factors that motivated Jeanne to marry were good and proper". The Respondent comments: "That array of motives was the product of mature reflection by a thirty-two year old woman who had figured out with great precision what she getting into" (I, 461; cf II, 30/12).

            The Second Sentence says: "she was already beginning to weigh the advantages and disadvantages of both men in her mind. She knew that she was in love with Charlie, but he could not offer her any stability or security, and he did not want children. Robert could provide stability and security, and he definitely wanted children" (II, 125). Here they could have quoted her brother, who testifies that she gave him exactly these reasons to justify accepting the proposal of marriage (I, 292-3/5). Her sister-in-law, analyses her decision in precisely the same way: "She had met the love of her life [Charlie] but had wanted something he was unwilling to give her and met someone who would give her this thing. Her mother had always told all of them that they could always fall in love with the person they married and I think she was banking on that. He would turn out to be the security and the caretaker" (I, 309/12).

            Of the witnesses whose evidence was omitted, KK, asked about her sudden break with her priest friend and decision to marry the Respondent, offers an explanation: "Jeanne has a practical streak, there is a realism in her and I think she recognized there was not much security in Charlie..." (III, 21/14); she would also have been aware of the family opposition that would arise to her marrying a priest (III, 23/22). Sr. MO confirms both points (III, 29/13); and also suggests that for the Petitioner, the marriage "was at least a good catch in one sense. He was a professor" (III, 30/17; cf. III, 41/13). Sr. ER (who was her Superior) suggests a deeper and more conscientious reason: "Basically, I think her own conservatism won out and she wasnt't able to go as far as Charlie was able to go" (III, 36/8).

            This fits in with what another fellow-religious, MW, told her when consulted by her at the time when she was being courted by the Respondent, and was still attracted to the priest Charlie: "At that point she wasn't sure. She thought he [the Respondent] was a very nice man, he was very good to her. She didn't know whether she really should let herself go and see how she felt about him because at that time she was also sort of involved with a priest... and she wasn't sure if she wanted to give that relationship up and enter into a real relationship with Bob. My comment to her at that time was, "Jeanne, I don't know anything about Bob. I don't know anything about the priest at St. John's with whom you're kind of walking on ice. You're just going to have to let yourself go with Bob in order to make a decision whether you like him or don't like him or if he is for you and you are for him..." So from that time on it seemed as if they were together very, very much..." (III, 52). The Respondent objected particularly to the omission of MW's evidence because "She was instrumental in our courtship" (I, 455).

            The Petitioner's mother says: "I think Jeanne was in love with the idea of marriage and family and this man was going to provide that for her. She just figured it was not this kind of a thing that she could bet on coming along more than once so she was going to jump at the chance. She felt she could learn to love, that I know..." (I, 302).

            FL, the Respondent's Secretary in 1969, says: that summer "she pursued him shamelessly visiting him at the office daily. She was... certainly mature enough to know what and whom she wanted" (I, 388).

            The Respondent himself, asked why Jeanne did not marry Charlie, answers: "From what she told me, basically because he was a priest and secondly because he didn't want to have children. It was a rational calculation on her part. It doesn't bespeak to me, however, any lack of due discretion" (I, 158/80).

24.       Psychological fantasy. The second instance Court, having said, "realizing that we run the risk of being accused of 'parlor psychologizing'", goes on to give its own analysis of the character and psychological makeup of the Petitioner: "Whatever she does, she does intensely. She adopts convictions strongly and readily, but her judgments often are not firmly rooted. She is impressionable - easily influenced. She takes off on flights into romantic fantasy... In the long run, she seems inconsistent... In her relationship with men, she tends to be egocentric, inconsiderate, demanding, and manipulative. She is in control of the situation while seeming to be helpless and dependent. She was living out one of her well-thought-out and well-staged fantasies when she contracted marriage with Robert Y. Reality was a far cry from her fantasy. She continued living off of her fantasy until she had the four children she wanted and then rejected the man she had used because he was not the man she married in her fantasy" (II, 147).

            It is the Court that would seem to be indulging in fantasy. The burden of the evidence points not to emotional thoughtlessness, but to very careful deliberation, on the Petitioner's part. We have given above many testimonies to this effect, which were ignored or excluded by the Courts. But what is most striking of all is the Judges' failure to weigh the Petitioner's own words in describing not only her feelings, but also her motivations, her thoughts and deliberations, throughout the different stages that mark the period in question: the reasons why (and when) she decided to leave the convent; and - later - determined to break with the priest, Charlie; and then started thinking more deeply about the advantages of marrying Bob. Everything points to rational calculation; there is no evidence of "fantasy".

25.       About leaving the convent at that time she testified: "It wasn't because of Charlie that I thought about leaving... I wanted a mate, I really did, and I wanted a family. Living the celibate life was very, very difficult and felt very unnatural to me. I'm a very physical person..." (I, 75/16).

            A main reason she broke with Charlie was because he didn't want to have children, and she did. "I could see that it wasn't going to work... The end of April, all of this was falling in focus for me. I knew I loved him a lot but one of my main wishes in life was to have a family and he didn't want that. Secondly, I wasn't really as radical as he... I knew I had to let go of him..." (I, 75-76/12).

            "my heart was all with Charlie and my head was with Bob... I knew that Charlie didn't have the stability that I needed or the job and financial security and didn't want children... so I began to look at Bob as a possible, looking at these contrasts" (I, 80-81/21).

            "I just tumbled into it without really assessing and thinking much. I certainly didn't assess my heart. It was all head issue. Bob wanted to take care of me; he wanted to have a family... I knew in my heart I really wanted to love him and I intended to be faithful to the marriage. I really intended permanence and I knew it was a sacrament and a serious promise. There were no mental reservations in my mind... I did know I didn't love him... but I did know that I would give it my best shot to learn to love him" (I, 84/25).

            A person who says, "I did know I didn't love him", has certainly "assessed her heart" (accurately or not; quite a few witnesses say she showed every sign of loving him). But when she adds, "It was all head issue", she herself is testifying that she was not lacking in discretion in her decision, but was, if anything, using "nothing but" discretion...

            "My mother had said to me, "Do you love him?"... I said, "He loves me very much". I really didn't answer her question. I told her that I knew he cared a lot about me and that we would be able to to make a good marriage... I knew that we could have children together... and that we both wanted a family and there would be a nice life together". "there were those misgivings that I was going to have to learn and put a lot of effort into it but I thought I was up to the task. My mom did sow some seeds of doubt in my mind about, 'Do you really love him?'..." (I, 86/30). One could perhaps argue lack of discretion if she claimed to have married without any doubts or misgivings. When she acknowledges the opposite, she is underlining the thought and deliberation she put into her decision. The Judges depict her as living in a world of fantasy; to us she seems to be living and moving, step by step and very carefully, in the real world in which she finds herself. The qualities she found in Bob (and did not find in Charlie) did not exist just in her romantic fantasy; they existed in reality in Bob, and were evaluated as such by her. We find the Judges' psychological theorizings totally unsupported by the Acts. We also note that the rotal expert, Professor de Caro, considers them subject to "gravi critiche dal punto di vista scientifico-psicologico" (Rotal Acts, 48).

26.       Then there is the letter that the Petitioner wrote to her parents, on July 15, 1969, telling them of her decision to break with Charlie and to marry Bob. The Judges fail to quote any part of this letter. Let the following excerpts suffice: "I discovered many evidences of immaturity in Charlie... Meanwhile I'm getting to know Bob better everyday - we're spending a great deal of time together these days. I perceive him as a very beautiful, very deep person - so respectful, so thoughtful, so gentle, so pure, so guileless, with so many other admirable qualities that can't be put in words... I love him very much and it's the sort of love that begins small, grows into admiration and respect, and then into physical attraction. It's not the type that begins with a surface infatuation, and then goes no where. The kind of love between us will continue to deepen because there's so much of a base of complementarity and of admiration... Well, as you can properly conclude - I'm in love with Bob and he loves me very deeply too. Everything is right so we've decided to get married!... I feel very right about this decision... I'm sure we'll have a beautiful life together" (I, 181-188).

            One can also note the Respondent's comment on this letter: "it doesn't reflect some poor little mixed unp soul, fresh out of the convent who didn't know what she was getting into and leaped precipitously into an ill-fated marriage" (I, 166/127). "I don't know how a person could be more discreet, more rational, more lucid, more calculating than the person who wrote that letter" (I, 169/137; cf. pp. 212 & 219-220).

27.       A main motive of the Petitioner in marrying: to have children. The First Court acknowledges: "Jeanne did well in religious life and enjoyed much of that life. However, there was still part of her that had a great desire and longing to be a mother and to be a wife" (I, 431). In the original Acts, as first received in the Rota, all of her former religious sisters confirm that this was a main reason for her leaving the community (I, 314; 319; 322; 326; 328); this is reinforced even more by the "Unincorporated Testimonies".

            Her former Superior, Sr. ER, says: "She tried to take her married life and her family very seriously... I saw as a basic reason for her leaving the convent a great need in her to mother a family" (III, 36/9). SH, a friend who had been in religious life with her, says the same: "We talked about it [having a family] and I know she desperately wanted to be the all American perfect family and to be a mother. She really, really wanted children" (III, 40/8; cf. 41/13).

            MG also gives having children as the Petitioner's reason for marrying: "She realized that she always wanted kids... She could not have a divorced person and she could not have a non-Catholic so she had to find a single Catholic man with her same values; so her market was pretty well narrowed down and I guess Bob was there at the right time" (III, 48/8). Others who testify in the same sense include MW (III, 54/7) and Sr. MO (III, 30/18)

            Both the First and Second Courts seem to take it as axiomatic that to let oneself be led, by the desire for motherhood, to marry a man without a deep emotional love for him - without "true appreciation" (I, 434-435), or without there being a "genuine bond of love" (II, 150) - is proof of a grave lack of discretion. That, as we pointed out in the Law Section, is inadmissible. And it must be repeated that her lack of love is not proved from the Acts.

28.       The expert opinions. The Second Sentence claims to base its conclusions on the opinion of Dr. J.P.L., a clinical psychologist: "We believe that the behavior of Jeanne X over a long period of time does manifest a number of characteristics of a personality disorder so that the opinion of the psychiatric expert can be accepted" (II, 148). The expert, as the Judges had earlier admitted, "would not make a definite diagnosis" (ib. 147). Without having read the Acts of the case (a fact which the rotal expert, Prof. Diego De Caro, describes as "veramente incredibile" from the scientific point of view: Rotal Acts 49), he simply offers "an opinion", at the end of an interview with Tribunal officials, in which he is asked the most blatantly leading questions (see pp. 104-107; especially questions 1, 2, 3, 4; and the whole of p. 106). One is particularly struck by how the officials (a Judge and none other than the Defender of the Bond: cf. II, 99) present the contrast between the Respondent's understanding of the case and theirs: "That's his reasoning. Our reasoning is..." The expert's views are sought not to give specialist insight to the Court, but simply to prop up conclusions already formulated.

            The expert's "opinion" was that the Petitioner "had not had sufficient time to resolve her feelings for the priest, Charlie J, that she had not known Robert Y well enough, and that she was probably just transferring her affections from one man to another... There's no way that she can transfer her emotions that quickly... I don't think this lady knew what love was... Her judgment was most superficial. There was nothing in-depth about it. Her judgment was disordered and that's all..." He adds that, if the description presented to him of the Petitioner is accurate, "you might refer to it as a histrionic personality" (II, 104-106).

            Prof. de Caro criticizes the superficiality of Dr. L's "opinion". He also remarks that "la perizia psichiatrica deve essere documentata da una visita diretta ed adeguata del soggetto periziando, ove possibile; ed è chiaro che nel caso di Jeanne ciò era possibile, avendo il perito a disposizione la perizianda. E pare invece che il perito non abbia neppure letto di Atti, e ciò è veramente incredibile" (Rotal Acts 48-49). He concludes that the report "così come è stato effettuato, è privo di ogni valore scientifico" (ib. 51).

            Prof. de Caro rejects that any scientific basis can be given to the "diagnosis" of Histrionic Personality: "si tratta di una caratteristica molto discussa come forma autonoma e determinata..." Referring to DSM-IIIR, he says "delle 8 caratteristiche segnalate per poter fare quella diagnosi, NON UNA SOLA si può sicuramente rinvenire nella personalità e nella condotta di Jeanne" (ib. 50).

            We note Prof. de Caro's comment on the point that the Petitioner's decision to marry was made in a situation of emotional disturbance: "In un certo senso tutte le situazioni di intenso dinamismo emotivo-affettivo "disturbano" in qualche modo il tranquillo svolgimento di un'esistenza senza spunti o shocks emotivi significativi: ogni ragazza che si innamora vivamente e deve superare difficoltà e contrasti più o meno gravi, finisce per subire uno stato di disturbo emozionale, e ciò avviene sovente nella vita quotidiana; ma ciò non significa che il "disturbo emotivo" produca, come tale, uno stato di incapacità a effettuare valide scelte in ordine al matrimonio, valutazione di specifiche situazioni, conoscenza personale, ecc." (ib. 46).

29.       We note two further replies of the rotal expert to the questions we put to him: "Si può affermare con sicurezza che negli Atti - accuratamente esaminati - non esistono prove serie e scientifiche che possono dimostrare nell'attrice l'esistenza di un grave stato psicopatologico che abbia potuto compromettere la sua capacità ad esprimere un valido consenso matrimoniale" (ib. 43).

            "si può affermare con sicurezza che tutti i comportamenti della donna, quando ebbe la crisi religiosa e si rivolse onestamente alla sua Superiora per consigli, e nei successivi rapporti prima con Charlie, - interrotti perchè non portavano al matrimonio - e poi con Bob, vennero gestiti con piena capacità critica ed adeguato giudizio mentale, in condizione di completa maturità psichica, sia intellettiva sia affettivo-sociale" (ib. 44).

            It seems to us that there must always be an element of relativity in the concepts of "psychic maturity" and "critical capacity"; and so we do not know how our expert comes to conclude that the Petitioner in this case had complete psychic maturity, or had full critical capacity. For our purposes we are satisfied with his professional opinion that, from the scientific point of view, there is nothing in the Acts to demonstrate a grave psychopathological state in the Petitioner that could have vitiated her capacity to give valid matrimonial consent.

30.       Having therefore considered all the aspects of the law and the facts, we Auditors of this Turnus... answer the proposed doubt:

            "IN THE NEGATIVE"

            that is, the nullity of the marriage has not been proved, in the case before the Court, on the grounds of a lack of discretion of judgment in the Petitioner.

            .....

            Given in the Tribunal of the Roman Rota, July 18, 1991.

            Cormac BURKE, Ponens

            Thomas G. DORAN

            Kenneth E. BOCCAFOLA