cormacburke.me.ke

I. The Facts

1.         When Carole, an Australian Catholic, and Dietmar, a German Lutheran, first met in 1974, the girl was not attracted to him. On their second meeting however in Sept. 1976, her feelings changed, perhaps also because he had gone down very well with her father. The two then began to go together, starting to have sexual relations from early in 1977. They were engaged at the end of that year; and after a dispensation from the impediment of mixed religion, were married in August 1978 in Los Angeles, California. Their married life seemed to go wrong from the start; not even the birth of a daughter after two and a half years, helped to improve the situation. They were civilly divorced in 1983.

[English version: Studia canonica 31 (1997), pp. 235-246]

            In July 1983, Carole petitioned the Ecclesiastical Court of Los Angeles for a declaration of the nullity of her marriage. The joinder of the issue was made on the grounds of a grave lack of discretion on the Petitioner's part. After an instruction consisting in the evidence of the parties and witnesses, along with the submission of the Report of a Court Expert, an Affirmative decision was given in March 1986. The Respondent appealed directly to this Apostolic Tribunal. Here the Petitioner was assigned a rotal Advocate "ex officio" [gratuitously]. The Turnus, which had been constituted on July 14, 1987, sent the case forward to ordinary examination in second instance - where it followed a prolonged and troubled course.

2.         A year passed without anything being done except the concordance of the doubt. Finally in October 1988, the Petitioner's Advocate "ex officio" informed the then Ponens that he had spoken with a certain priest of the diocese of Los Angles, a Rev. MC, "who is very well acquainted with the Petitioner and her family". "From this conversation", said the Advocate, "I have been able to detect new and grave factors which are of relevance to the case".

            What happened after this is a source of no little wonder. Only in May 1990 did the Advocate request "that letters be sent to Rev. MC at the Los Angeles Diocesan Chancery" [stating that he was "Associate Director to the Tribunal"], "inviting him to produce new proofs, if he has any", regarding the childhood of the Petitioner and her relationship with her father, "also in the sexual area". Without any rogatorial commission having yet been sent from this Apostolic Tribunal, the Petitioner and her sisters were cited by Rev. MC, who presented himself as a Judge of the Los Angeles Tribunal (without there being any record of a mandate from the Tribunal itself). Between August 1990 and April 1991, they were submitted by him to a judicial interrogation of a most singular nature. The evidence gathered was sent by the Tribunal, or by Rev. MC himself in the name of the Tribunal, to the rotal Advocate who presented it to our Tribunal.

3.         The question then arose of the legitimacy of this evidence. In March 1992, the Promotor of Justice, in a "votum" requested by the Ponens, gave his opinion that "the depositions collected by the Los Angeles Tribunal motu proprio, that is, without a formal mandate from this Apostolic Tribunal, should be considered as not received". Moreover, he considered as illegitimate the procedure of Rev. MC as regards both the obtaining of the new evidence and the way of sending them here, through the Advocate "ex officio".

            In April 1992 the Advocate submitted a petition for the sanation of the evidence received. The Ponens determined that this incidental question regarding the admission or otherwise of the new documents should be resolved through the submission of Memorials. However, before the day settled for deciding this question, the Ponens was substituted by Msgr. Thomas G. Doran; the Advocate then immediately renounced his petition for the sanation of the acts. Next, rogatorial letters were issued for a new instruction to be regularly performed at the Los Angeles Tribunal, with the specific indication that those appointed to fulfill the rogatorial commission should have had no prior dealings with the case (Acts, II, 2). The new evidence having been received, the Decree of Publication of the Acts was issued on January 27, 1993; and in July of the same year, the Advocate was urged to present his Brief within a month. This however he failed to do. Meanwhile the Petitioner was raising constant complaints about the delays accompanying the whole process. Msgr. Doran being named Bishop of Rockford, Illinois, a new Ponens was appointed in June 1994; and issued a decree setting a deadline of the end of July for the Advocate to present his Brief. In fact however it was not presented until December.

            Now, having read all the Acts as well as the Brief of Advocate and the Animadversions of the Defender of the Bond, we must reply to the doubt concorded on Jan. 26, 1988: "Whether the nullity of the marriage has been proved, in this case".

II. The Law

4.         Canon 1058 states: "All persons who are not prohibited by law can contract marriage". Among the basic and natural human rights which the Church has always recognized and protected is the "ius connubii": "The Church has always confirmed the natural right to marry, inalienable to man" (c. Serrano, Apr. 29, 1983: R.R.Dec., vol. 75, p. 214). At the same time, since marriage binds a man and a woman to a most solemn interpersonal commitment that will last for their lifetime, the church's law tries to ensure that those who have the right to marry, should also possess the minimum physical and psychic capacity for exercising this right and so entering upon such an intimate and serious relationship, unbreakable of its nature. The case before us today involves the question of psychic incapacity for marital consent, concretely as it is contemplated under c. 1095, 2° : "They are incapable of contracting marriage... 2º who suffer from a grave lack of discretion of judgment concerning the essential matrimonial rights and duties which are to be mutually given and accepted".

5.         It is a long established principle in jurisprudence that the act of consent can be validly elicited only if there is due proportion between a person's psychic faculties and the natural though demanding choice of marriage. If the psychic faculties are so undermined that the due propostion between them and the act to be elicit is absent, then the person cannot contract marriage validly (cfr. c. Lefebvre, July 6, 1967: R.R.Dec., vol. 59, p. 555).

            Such a gravely perturbed mental state does not necessarily have to be characterized by perpetuity (cfr. the decision coram the undersigned Ponens of Nov. 24, 1994, n. 14). It is no objection that the disturbance of the faculties was transient; it is enough it the Acts give proof of both its gravity and its effective presence in the moment in which consent itself was given. "The proper exercise of the critical faculty can be frustrated by many causes: not only because of diseases in the strict sense, but also on account of abnormal conditions which, even if transient, may at times destroy a person's dominion of his or her acts" (c. Davino, Philadelphien. Feb. 20, 1992, n. 4).

6.         A marriage breakdown is normally a traumatic experience for the parties. It involves the collapse of a dream of happiness, and often leaves behind deep psychological scars of frustration, combined with a sense of inadequacy or failure, and even of anger and bitterness. These effects are commonly seen, and not infrequently intensified, during civil divorce proceedings. The ecclesiastical hearing of a petition for nullity can also be a source of psychological damage. The danger of this increases when the grounds of nullity alleged are consensual incapacity under c. 1095, 2° or 3° , since an affirmative decision declares in effect that one or both parties labored under some grave psychic defect at the time of the wedding. Many persons take such a declaration, if seriously meant, as highly offensive.

7.         When the grounds invoked are c. 1095, the instruction of a case is aimed at gathering evidence of the presence or otherwise of such a grave psychic anomaly in the party or parties. The judge instructor therefore, apart from the necessary detachment and objectivity that has always to characterize the fulfillment of his or her job (cf. c. 1428, § 3), must show the greatest respect for the intimacy of the party or parties - for in a real way it is this (or an aspect of it) which is on trial.

8.         The purpose of the official interrogation is to elicit trustworthy information about the mind, intentions, actions, relevant background (medical or clinical history in particular) of the party or parties concerned in the plea. The judicial interrogation is one of the preliminaries to judgment, but is in no way a decretory session; it would be completely improper for the instructor to reveal or even hint at any personal opinion regarding the question at issue. Much less still is the judicial interrogation a therapeutic session, designed not only to discover but also to treat a possible psychic dysfunction.

9.         The judge instructor must conscientiously seek to refrain from any pre-judgment of the case; and to maintain this required detachment in his external interventions. If any grounds are given to the party or witness being interrogated, to think that the instructor has formed an opinion on the merits of the case, this may provoke the idea that the Court itself has already made its mind up before the instruction has been concluded. Such a violation of the proper mode of procedure could reinforce the impression some people have that ecclesiastical tribunals exist which, rather than means for seeking to establish the truth (or otherwise) of a claim, are agencies for building up arguments to fit a pre-conceived policy.

10.       The purpose of an instruction is to establish facts rather than to elicit opinions. If a statement is not clear, it is proper to ask the witness to clarify their meaning - freely and in their own words; it is improper to suggest interpretations to them. To do the latter can undermine the witness's confidence in the objectivity of the whole process of gathering evidence. Pertinent, brief, non-leading questions make for a clear, balanced and impartial instruction. This impartiality is meant to find a greater guarantee in the provision of the law that questions are as a rule to be asked by or through the judge-instructor (c. 1561).

11.       The use of leading questions is expressly prohibited by law (c. 1564); it is not for the instructor to put answers into the mouth of the person testifying. No doubt the legislator never contemplated the possibility - which in fact would seem to lie almost beyond the bounds of reasonable contemplation - that leading questions could be used in a church tribunal session, in a deliberate attempt to get a person to finally admit - against their repeated denials - that he or she had been victim of some experience much more perturbing than what has already been clearly testified to: so seeking to implant in their mind the conviction that their psychic constitution was much more seriously undermined than they could ever have imagined. One wonders if special ecclesiastical penalties should not be attached to such an abuse.

12.       Where considered necessary, the instruction can be completed by the professional report of some competent and responsible Expert. In the choice of an Expert, special regard is to be paid to the christian basis to his or her anthropology and psychology. It would seem elementary that the Expert examination and evaluation should be performed quite separately from the judicial examination of the parties. The complete instruction is then to be submitted to the Judges, for judicial pondering and final decision.

13.       The role of the Defender of the Bond in matrimonial cases is to marshall and present all the reasonable arguments in favor of the marital bond whose validity is being questioned. If in some particular case, he conscientiously finds no argument to support the bond, he can make a simple statement to that effect. What he cannot do is to look for arguments against the bond, for that would be in direct violation of the ecclesial mission entrusted to him; still more if he were to take the initiative in doing so. Pope John Paul II, speaking to the Rota of the particular responsibility of the Defender of the Bond, remarked in 1982: "His duty is not that of defending an inexisting reality at any cost, or to offer opposition in all possible ways to a well-grounded decision, but, as Pius XII put it, he should make his observations "in favor of the bond, always with respect to the truth". Today at times one notices tendencies which unfortunately tend to change his role. The same person cannot exercise two functions at the same time, to be a judge and to be a defender of the bond. Only a competent person can undertake such a responsibility; and it would be a grave error to regard it as one of minor importance" (AAS 74 453). Again in the 1988 papal address to the Rota, we read: "The Defender of the Bond, in the fulfillment of his task, must adjust his activity to the different phases of the process... In the final discussions he must be able to make a correct evaluation of expert opinions which are unfavorable to the bond, and duly point out to the judge the risks of interpreting them incorrectly... In any case, the Defender of the Bond should remain within his own specific canonical competence, without ever wishing to compete with the Expert or to take his or her place in formulating scientific psychological or psychiatric conclusions" (AAS 80 1184-85).

            When the Defender of the Bond does not do his job conscientiously, both public and private good suffer.

III. The Argument

14.       As the case is now presented before us in second instance, we have to consider two main arguments advanced in support of the plea of consensual incapacity on the part of the Petitioner.

            The argument supporting the affirmative sentence in first instance is exclusively the state of grave confusion in the Petitioner at the moment of consent which, at least at that moment, deprived her of the due exercise of discretion of judgment. This state would be rooted in her "dependence-rebellion" relationship with her highly autocratic father. "It has been amply demonstrated that the Petitioner suffered from a long-standing conflict between being dependent on an extremely dominating and manipulating father and her need for independence and to rebel against this extreme subjugation... [she] has adequately demonstrated that she labored under that characteristic confusion associated with a severe defect of judgment" (I, 206-207).

            The Petitioner's advocate in this rotal instance, while not ignoring these reasons offered by the sentence under appeal, seems to hold (Brief, 31-34) that a much stronger argument for consensual incapacity can be drawn from the interrogations made after the first sentence, whether motu proprio by the Los Angeles Tribunal or by mandate of this Apostolic Tribunal. This would consist in the "trauma" produced in the Petitioner as the result of incestuous episodes in which she was involved by her father in childhood or adolescence. Not a word of this argument is to be found in the first sentence. Nor does Dr. Nicolosi, the court expert in first instance, make any mention of it either in his written opinion (172-173) or in the verification of the opinion given afterwards (174-175).

15.       We are considering the matrimonial decision of a woman who, while no longer young in years when she married, had behind her a deeply unsettling personal and family history. She grew up in Australia, the third child in a well-off family of four sisters and one brother. While she herself says, "My childhood was a very happy one, at least until the age of about 13" (I, 26), the home atmosphere as she grew up became dominated by a more and more despotic father, the children receiving no help or support from their mother. The father, after a period of sexual looseness, experienced a religious conversion; which however did not appear to make him less despotic. In 1970, when the Petitioner was 19, the family left Australia, moved to Monte Carlo, and finally to the US where the Petitioner would not or could not settle down to any work.

16.       A) The Petitioner's "rebellion-dependence" condition. The relationship of the Petitioner with her father (on which the first judgment mainly rests) has been described as one of "love-hate" or "submission-rebellion". According to her, "My father is a very strong willed, autocratic man who insists on his own way in everything, down to the last detail. For example: we were only allowed to eat things he liked, play sports he enjoyed and take subjects he approved of. He formed our minds and tried to make us succumb to his will in everything. My mother was also treated this way, and to my recollection, submitted gently and was always very passive" (I, 28). At the same time she says: "My father is very important to me. I see his faults but I still love him very much... I still admire him very much. Yes, I do want to be in his esteem" (ib. 45). In second instance, she repeats: "I still care for him very much" (II, 35); and later adds that despite "the total domination of my father and the conditional love he bestowed, I considered myself a happy child" (ib. 59).

            It would seem that her father interfered, approving or disapproving, in all of her relationships with men. "When I was 16 I met my first boyfriend and after two years my father said I couldn't go out with him any more. At that point I almost broke up with him but because of the undue pressure at home and the tension this ultimatum caused, I reacted and preferred the security of that relationship and continued to see him for another year, behind my parents' backs". Soon afterwards she began another relationship with a certain Jean-Pierre also against her father's will: "my father always tried to make decisions for me and I resisted... I continued to date Jean Pierre for the next five and a half years against my parents' wishes again" (I, 28-29).

            Her sister, Dawn, describes their father as "a very possessive, domineering man. If you obey him he is generous and loving, If you choose to disobey even at the age of thirty you are ostracized, and talked about in a most negative way. Control is his main obsession" (I, 113). Her younger sister, Michelle, specifically relates this controlling tendency directly to the Petitioner's desire to get married: "Carole always wanted to get married. Each boyfriend she had since she was 17 she wanted to marry and there was always a conflict over this with my father. My father was a very powerful, domineering father figure, always wanting to control" (I, 152). Her oldest sister, Cherie, interrogated by Rev. MC, states, "Father is a very strong, dictatorial person, with the idea that when you live under his roof you obey the rules and the laws" (UNI ["Unsolicited interrogations"], 72). The witness's own experience reflects that of the Petitioner: "If I ever dated anybody and didn't like him, Father thought he was great. The second I showed any interest, he would denigrate him to me" (ib., 78)

            The Petitioner reached the age of 27 without any formal training for work. Her father had in fact refused to let his daughters seek higher education: "We were told that a woman's place is in the home, and that a girl who went to the University and then did not use her degree was depriving a man of an education" (I, 27). Once in the US, he again refused to let her try to get an immigrant's working permit, "because I was jeopardizing him and the whole family on a tax basis" (UNI, 15). As a result, she claims: "I was really terrified of working at that point [because] I never had to do it. I'd never worked. I didn't know what I could do" (ib. 16).

17.       The circumstances of the Petitioner's acquaintance with the Respondent are peculiar. She says that at their first meeting, "I found him very egotistical and ambitious and not at all to my liking". Two years later her father arranged another meeting, when he seemed "just a completely different person... very attractive, very nice... And he was paying more attention to me... I related to my father the story of our first date and of my feelings at the time that Dietmar was interested in money, but I can clearly remember my father's advice. He said that marriage is like a business agreement, both sides have something to offer and there is no harm in an ambitious young man with a good education and job to look for a girl who has what he is lacking, that being social status and money, since she needs the security he can offer also... My life had been regimented, but I had never been told what to look for in a man. Men I went out with were criticized, but I was never told what I should look for. So this conversation with my father carried more weight than it otherwise might have done" (I, 30, cf. UNI, 35).

            The Petitioner and Respondent got engaged in Dec. 1977. Then her father's attitude once again began to change. "During our engagement my father started to disapprove of Dietmar, but by this stage I thought it was just the same old story. He had not approved of anyone I had ever dated, or my two older sister's husbands either..." (I, 31). Her reaction was to want to contest her father's new opposition; yet very soon she found that she herself was beginning to have doubts about the marriage arranged with Dietmar.

18.       It thus happened that the "submission-rebellion" relationship was particularly strong at the time of the wedding; her claim is that the rebelliousness prevailed and induced her to go ahead with the marriage. The first court accepts this and comes to the conclusion that her final decision was not a free and deliberate choice of marriage, but a conditioned reflex of "desperation and rebellion" against her father (I, 206-207).

            Doubts or hesitations frequently accompany a marital choice, and of themselves are no proof of an internal state where a free decision would be impossible. We readily agree that her psyche was under strain from a long-standing "submission-rebellion" relationship with her father; nevertheless we find it hard to conclude that this in itself was such as to provoke a marital decision which was not really hers.

19.       However there is another episode, of a transient but quite extraordinary nature, which was intimately connected with her matrimonial decision. It has been a factor of decisive importance to us in weighing her psychic disposition at that moment. This is the bizarre two day affair with John, an Englishman she casually met just before the wedding. She found herself immediately and intensely attracted to him, and comments: "Everything I did from that time on was not like me". She went for a brief visit to Australia, "because my father wanted to talk me out of getting married, and I knew what I was in for. That was just a living hell. Everyday he'd come home from work in this foul mood of his. He's got this horrible streak in him". Returning from Australia, she travelled through London and spent two days living with John. "I had this relationship with him over a very short period of time. And it was just so out of character for me. I felt terribly guilty... It was all too sudden. It was too much. I couldn't cope with it. I didn't know how to understand what had happened... Then he sent me a telegram, and asked me to marry him. And apparently he was packed and ready to come two days before I was getting married. And I called him and begged him not to come... I remember showing Dawn the picture of Dietmar and John, and saying to her, 'What do you think?' And here I am engaged, about to get married, just about a week before. She said, 'you're really having these kind of doubts?'..." (I, 34-36; cf. UNA 42-44).

20.       Her immoral conduct as such provides no proof of a grave lack of dsn (a person of perfect dsn of judgment can be quite immoral). But given the time-factor - occurring within days of the wedding - it does point to some acute internal instability, perhaps temporary, but present at that precise time. The existence of something really pathological seems to be confirmed not just by the fact of her uncertainties, but by the way she seeks to work them out in her own mind. "The pressure to go ahead with the wedding was there, the invitations were out, everything was ready, but most of all I was afraid that if I even hinted of my uncertainty to my parents the decision would be no longer mine. I was afraid that if I postponed the wedding, my father would refuse to give me the wedding I wanted and even to let me marry at all... If I had told my father I had met an Englishman who was divorced, I had flown to London after knowing him for two days and that I wanted to postpone my marriage because I was unsure of what was going on in my own head, the decision would have been taken out of my hands and I would not have been taken seriously" (I, 36).

21.       Reading and re-reading all of this, we feel that the first Judges properly decided that her marital consent was given in a state of profound confusion, but that they inadequately put this down just to the "ongoing internal psychological conflict between dependency and rebellion against her father". This conflict no doubt provided the background which might or might not provoke consensual incapacity in a particular moment. The further necessary proof of an actual mental state of confusion such as to render the Petitioner incapable of any adequate exercise of discretion of judgment, seems to us to be furnished by the John episode, coinciding, as it did, with the wedding itself.

22.       All in all, our only criticism of the first decision is that it failed to beam fully in on the extraordinary circumstantial conditions surrounding the Petitioner's marital decision. A second hearing could have run a brief course, following the general lines of the first hearing and perhaps clarifying one or two minor points. Instead this instance has been extraordinarily protracted - partly at the instances of the Advocate "ex officio" and more so because of the unnecessary, morbidly abusive and highly dangerous questionings of the local tribunal officials, particularly of the Defender of the Bond and of the court Expert. These protracted and obsessive interrogations seem to respond to a new and pre-conceived thesis which not only remains unproved in the end, but whose investigation was quite unnecessary so as to arrive at a proper decision in the case. Above all, there are indications that the way they were carried out created grave risks to the psychic health of the Petitioner.

23.       B) Re the alleged trauma attributed to incestuous experiences. At the very end of the first instance instruction, the Petitioner made a passing reference to an "incestuous relationship between my oldest sister Cherie and my father. Although this relationship was confined to Cherie, my father did molest Dawn and I to lessening degrees. We both rejected him however" (62). However neither the court expert nor the Sentence take any consideration of it. Perhaps there was some reason to investigate this point; but certainly not in the way nor to the extent in which this was done by the Tribunal.

24.       The interrogations made by Rev. MC. in 1990-91 deal exclusively with the question of "sexual molestation" - in which evidently one must see the "new and grave elements" which the Advocate first mentioned in 1988, and whose investigation delayed the case for more than three years. We are informed in a letter from the Tribunal that in this unmandated instruction Rev. MC. had "the assistance of a female psychological expert [Dr. JS, who effectively acts as co-Instructor] due to the sensitivity of the subject matter to be discussed" (UNA 1).

25.       This "instruction" presents a glaring contrast: the Petitioner seeking to minimize the importance of the sexual behavior (towards her) of her father, and those conducting the interrogation striving to build it up. She quite firmly places the matter within the realm of a "control" technique of her father's rather than of a sexual experience (at least for her); and insists that it did not affect her in any way she regards as important. In particular she holds on to her view that her father's indecency was not a form of "abuse" in the sense in which the Expert sees it.

            When the Expert refers to the father's way of touching or looking at his daughters as "sexual abuse", the Petitioner's reply is immediate, no doubt peculiar, but quite spontaneous: "No, that wasn't used as an abuse. It was very strange, but he didn't do that as punishment..." She describes one event: "I must have been eleven or twelve, and I was drying myself in the bathroom, and he came in, and took the towel off me. He even called my mother in, and said, 'Here, look how beautiful she is'. He didn't know what role he was playing. He was trying to give me a compliment. On the one side, he was being sweet, and he really meant it... There was no sensitivity there that I didn't want him there"... Expert: "Have you ever been enraged at him when you think about it?" Petitioner: "No. No". Expert: "Or what he did to your other sister, Cherie?" Petitioner: "Not enraged. Not any - even hatred". Expert: "Why is that?" Petitioner: "I think because I feel sorry for him". Expert: "Why? He's much more powerful than you". Petitioner: "Yeah. But he's looking for something. He's looking for affection, approval..." Expert: "Doesn't he think he has problems?" Petitioner: "Not vocally. But I think when he became fanatical on religion, he probably didn't forgive himself". Expert: "How do you know that?" Petitioner: "Because if he had forgiven himself, he'd be more forgiving of other people, and wouldn't be so unhappy. He's a very unhappy man" (UNA 10/55-11/62).

            We note the Expert's apparent shock when the Petitioner insists on her appreciation of her father, despite his general sexual looseness - "Although he had these extra-marital relationship, he was a good father" (ib. 8/45); we also note the expressed surprise that she does not hate him.

26.       The Expert then asks the Petitioner if she had been to personal therapy. She says that for almost a year she went to "a psychologist who was a nun". Expert: "Why didn't you continue?" Petitioner: "It was helpful to have someone to talk to, but it wasn't therapeutic. I think mostly you just talked about yourself, feeling very sorry for yourself. I didn't want somebody holding my hand, which is basically all they were doing. 'Isn't this terrible, and shocking, and how could you be treated like that?' I know that, but that doesn't do me any good. I can't go on blaming my father for everything". Expert: "I'm not sure you ever started blaming". Petitioner: "Well, I do. He was wrong, I knew he was wrong. But at that point, I'd only be blaming myself, I think, if I had hatred for him. Do you think I'm wrong?" Expert: "I'm not going to give you an opinion". Petitioner: "He's him, you know. He's very vindictive, but he's got a good side, too, and I suppose I see that. He's very vulnerable". Expert: "You're very vulnerable" (ib. 12/64-68).

            It seems unnecessary to us to make any further comment on these passages from a judicial "instruction". Qui capere potest, capiat.

27.       The material sent motu proprio by the Los Angeles tribunal contains a 24 page assessment made by Dr. JS. It centers on the "sadistic control and sexual abuse" which the Petitioner had suffered, and gives a final judgment on the Petitioner's case as one of "prolonged incest", describing her as an "incest survivor" (92-115).

            In view of the incongruous nature and tone of this examination made by or at the Los Angeles Tribunal, when rogatorials for an official instruction were sent from the Rota in 1992, the Ponens then in charge of the case specifically indicated that a different Judge Instructor and Defender of the Bond be appointed to handle the matter. Regrettably, little improvement is to be found in the way this new interrogation was conducted, making, as it did, every effort to elicit testimony to confirm Dr. JS.'s already settled judgment.

            The very first point put to the Petitioner in this new interrogation is: "Your prior testimony seemed to indicate that you were sexually violated prior to your marriage". She reacts very indignantly: "No, I wasn't violated. By whom? No. No, I don't understand the question. I was never violated by anyone". The judge reduces the question to "sexual advances". She says Yes, these had occured with previous boyfriends, but not against her will; and adds "But I think you might be talking about what I mentioned about my father. Are you? I don't know". The Judge does not reply, and the Defender of the Bond, having mentioned the possibility of rape (which she vigorously denies), recalls previous evidence about "sexual abuse" by her father. She indignantly replies, "I was encouraged to give that testimony!", and adds: "I don't really see what it has to do with my annulment with Dietmar, because that was a long time before that. I introduced that merely to explain my relationship with my father... I still care for him very much, but there was sexual advancement made by my father. It was certainly never anything close to rape" (Supplementary Acts, 35).

28.       She evidently feels compelled to break the psychologists's construction, bringing the scope of the matter back to what she said at the start: touches, etc. Later she again has to protest strongly to the Judge at the suggestion he makes that her father in kissing her was seeking intercourse. "But, Father, you mustn't be thinking of that as like leading up to something else. No, it's not like a man kisses a woman as a prelude maybe to more between them. It wasn't like that. It was this hard kiss and then that's it. I wasn't scared that there was something else coming". She insists emphatically that she read it just as "a behavioral control": her father "still letting me know that he was in control" (ib. 42).

            She is absolutely adamant that, while she realized her father's behavior was anomalous, there was no attempt at incest, no fear of it on her part (42-43); she had already said this quite clearly in the 1990 unauthorized interrogations (UNA 20-211). Despite this categorical statement on her part, the Judge Instructor, and even more the Defender of the Bond, keep returning to the same issue, asking repeatedly for details about "sexual abuse" (44-46). It may be noted that it was not only the Petitioner who found this obsessive form of interrogation surprising and objectionable. Her sister, Cherie, at one stage had also reacted: "But why all these sexual questions...?" (UNA, 87).

29.       After this instruction, the Acts then record a Memo from the Defender to the Judge, suggesting that the Respondent's responses so far about the matter of sexual abuse "fail to address the concerns of the Defender of the Bond at the Rota" [sic!]; that he considers Dr. JS.'s examination of the Petitioner not "extensive or thorough enough [?!] to justify the diagnosis or the prognosis that she gives" [!!], and therefore "given the difficulty in obtaining clear answers from the Petitioner herself [?!] with regard to the critical issues concerning the alleged incestuous abuse, I would recommend that the Petitioner be sent for psychological testing" by a new Expert (Suppl. Acts, 75-75A). The Judge accepts that this should be done. And so the Petitioner has to undergo another psychological examination (at least this time, in a proper clinical setting).

31.       Psychological tests on the Petitioner are carried out by a psychologist, Mr. RMD. He explores "the unconscious memory of her very early childhood..." Speaking of the results of the tests, he asserts that the good scores registered are due to the Petitioner's ability to "hide" her severe pathology from most observers. Nevertheless, based on his ability to "penetrate" the patient's "defensiveness and ability to dissociate into a relatively 'healthy' alter", he makes an unhesitant diagnosis of "a severely Dissociative Disordered patient... who is in the early stages of discovery" (Suppl. Acts, 83-84). One of the rotal Judges of this Turnus remarked in his votum: "I am not acquainted with this type of psychology and perhaps should learn more about it, but it seems somewhat incredible and exaggerated".

31.       While we have reserves about some of the opinions of this expert, one of his observations seems to us more than sufficiently borne out by the Acts: "I note that her emotional development is extremely arrested and this was certainly the case at the time of the wedding in question. She was not using reason as an adult would, but rather acting compulsively [due to these unconscious drives] as a pre-pubescent child would" (Suppl. Acts, 87).

32.       Unethical instruction. We must comment on the presence and participation of the court psychologist during the second interrogation of the Petitioner and her sisters, made motu proprio by the Los Angeles Tribunal. The expert intervenes with constant remarks or questions much worse than the simple leading questions forbidden by c. 1564, and certainly not "free from every kind of offense", as the canon prescribes. In the interrogation of the Petitioner, she time and again interprets actions or situations (7/37; 7/37; 11/57-60; 26/132; 20/103; 26/132; 26/135; 32/169; 57/200), suggests impressions (14/74; 18/87; 33/174; 38-39/206-209) elicits desired answers (14/76; 22/112; 25/130; 48/251; 48/253), makes on the spot psychological judgments of the Petitioner as she testifies (12/68; 32/169-171), and at times contradicts her (22/114; 23/120). We repeat the point made in our «In Iure» considerations: all of this is grossly violates not only the norms of procedure, but also the dignity, integrity and independence of the person, as well as undermining her objectivity and her freedom to testify. By what right can a tribunal official seek to lead a person, by means of a psychological interpretation, to believe that her consensual incapacity was of much more serious a nature, deriving from much more offensive roots than she could understand or admit (or, as we will see, than are necessary for the affirmative decision of the case).

33.       In this case, the Judge, the Defender of the Bond and the Expert turned what could have been a simple deposition of the facts - precisely as the Petitioner saw them, with her own (no doubt partial) view - into a self-assessment exercise, or even into a psychological conditioning session. We have no hesitation in making this latter observation, in view of the morbid insistence, not once but time and again, with the Petitioner that the sexual abuse she had mentioned was in fact much more serious that she realized or wished to admit. We note the remark of the third psychologist given after all the interrogations (and who not only interviewed the Petitioner, but certainly read the acts: cf. his comments, pp. 84, par. 4; p. 85, par 2; p. 86, pars. 1 & 2): "this patient could easily move into full psychosis if the greatest sensitivity and care is not taken when questioning her" (Suppl. Acts, 83). This observation seems to us to have been rightly and particularly addressed to all those who had participated in the latter questionings of the Petitioner.

            We can only hope that interrogations such as these are rare, given the extreme violation not only of the canons (cc. 1428, § 3; 1561; 1564, etc.), but of the whole spirit of the instructory part of the judicial investigation of a case. More than anything else one is struck by the violation of the most elementary right of the faithful (especially of the party, already under the stress of nullity proceedings) not to be further subjected to psychological assault.

34.       Conclusion. The Petitioner's Advocate claims that "the whole evolution of the facts clearly proves the crushed «psyche» of the Petitioner before, during and after the wedding" (Brief, 38). This goes too far; and we restrict our judgment to the moment of the wedding. We conclude that the Petitioner had a defective personality, although not one such as in itself necessarily to induce consensual incapacity. On this basis, we find sufficient evidence of an actual grave lack of discretion at that moment which rendered her incapable of giving valid consent. There is no indication that she continues to suffer from such a condition; we therefore see no need for the "vetitum" imposed by the first tribunal, which is hereby lifted.

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

            "IN THE AFFIRMATIVE", that is,

            "the nullity of the marriage has been proved, in the case before the Court, on the grounds of a grave lack of discretion of judgment in the Petitioner".

            Given in the Tribunal of the Roman Rota, June 22, 1995.

            Cormac BURKE, Ponens

            Kenneth E. BOCCAFOLA

            Daniel FALTIN