On Sex Without Deliberate Consent

In his recent Apostolic Exhortation, the Holy Father puts a question mark in the margin of the following teaching of Pope Saint John Paul II: “The Church reaffirms her practice, which is based upon Sacred Scripture, of not admitting to Eucharistic Communion divorced persons who have remarried. They are unable to be admitted thereto from the fact that their state and condition of life objectively contradict that union of love between Christ and the Church which is signified and effected by the Eucharist.” (Familiaris Consortio, § 84)

Is the fact that God’s law is objectively contradicted by divorced persons who have remarried a sufficient reason to exclude them from the sacraments? Pope Francis clearly thinks not, even though he does not formally abrogate the rule of Familiaris Consortio § 84 or the corresponding Canon 915 of the Code of Canon Law. Because the objective sinfulness of a situation does not necessarily translate into subjective guilt for individuals, “it can no longer simply be said that all those in any ‘irregular’ situation are living in a state of mortal sin and are deprived of sanctifying grace” (Amoris Laetitia, § 301). The consequence that Francis seems to draw from this reasoning is that access to the Eucharist must be determined by pastoral discernment on a case-by-case basis. He tries, in other words, to soften the rule by exploiting the distinction between objective sin and subjective culpability. An irregular marriage-situation can be objectively sinful (contrary to God’s law), but if those involved in it either do not have full knowledge of its sinfulness, or if their decision to remain in it is not sufficiently free, then they need not be subjectively culpable. In that case, Pope Francis implies, there may be no obstacle for them to receive absolution and Holy Communion.

There is, however, a crucial factor that the Pope does not mention, but which is of great significance in the present context. If this factor is taken into account, it becomes clear that the Pope’s moral-theological reasoning in Chapter 8 is irrelevant for divorced and remarried persons who want access to the sacraments without having to live as “brother and sister.”

But let me begin by trying to clarify what the Pope does not question. He fully embraces the doctrine that a person who is in a state of mortal sin must abstain from receiving Holy Communion. This is apparent from his emphasis on the need for discernment. For example, the Pope says that “this is also the case with regard to sacramental discipline, since discernment can recognize that in a particular situation, no grave fault exists” (§ 300, footnote 336, my emphasis). If a person in mortal sin could fruitfully receive the sacraments, discernment would be unnecessary in the context of sacramental discipline, since it would not matter whether a grave fault exists or not.

The pope also does not question—at least not directly—that a divorced and civilly remarried Catholic does something objectively gravely sinful (contrary to God’s law) when he or she has sexual relations with his or her new partner. That Amoris Laetitia does not put this teaching in question is, of course, a very strong presumption, since adultery by any Christian standard is objectively a gravely sinful act, and since Jesus says that “anyone who divorces his wife and marries another woman commits adultery, and the man who marries a divorced woman commits adultery” (Luke 16:18). In the words of the Catechism of the Catholic Church: “Contracting a new union, even if it is recognized by civil law, adds to the gravity of the rupture [of divorce]: the remarried spouse is then in a situation of public and permanent adultery” (§ 2384). Furthermore, “the sexual act must take place exclusively within marriage. Outside of marriage [for example in the context of a civil union after a divorce] it always constitutes [objectively] a grave sin” (§ 2390).

At times, the Pope alludes to this fundamental teaching: “Because of forms of conditioning and mitigating factors, it is possible that in an objective situation of sin—which may not be subjectively culpable, or fully so—a person can be living in God’s grace” (§ 305, my emphasis.). The mere fact that Francis goes out of his way to find reasons why subjective responsibility may be lacking in persons who are divorced and remarried is evidence that he takes the objectively sinful character of second marriages after a divorce for granted (although his rhetoric sometimes suggest otherwise—I will come back to this below).

Given the Pope’s embrace of the two mentioned doctrines—that mortal sin is incompatible with receiving Holy Communion, and that extra-marital sex is objectively gravely sinful—there is only one way open for him if he wants to soften Eucharistic discipline. This is to highlight the possibility that the subjective conditions of mortal sin are not always satisfied by the divorced and remarried.

“Mortal sin is sin whose object is grave matter [an objectively sinful act] and which is also committed with full knowledge and deliberate consent” (Catechism § 1857, my emphasis). The last two (italicized) conditions are the ones that activate subjective culpability. The Pope, wisely enough, makes no serious attempt to argue for lessened culpability on the basis of lack of full knowledge. He just says, in passing, that “a subject may know full well the rule, yet have great difficulty in understanding ’its inherent values’”(§ 301). But this is clearly an irrelevant observation. If a person does not understand the value of the Church’s teaching on marriage, the proper pastoral response is of course to explain it to him. (I assume that remarried divorcees who simply disagree with the Church’s teaching on marriage cannot, merely on this ground, be regarded as guiltless and therefore get access to the sacraments.)

Most of the Pope’s attention is focused on the second subjective condition—deliberate consent. Subjective responsibility for an objectively sinful situation may sometimes be lacking because the freedom of the parties involved is restricted as a result of various factors or circumstances, such as “duress, fear, habit, inordinate attachments,” “affective immaturity, force of acquired habit, conditions of anxiety or other psychological or social factors” (§ 302, quoting the Catechism).

Before we can discuss to what degree factors such as these, or other conceivable factors and circumstances, can plausibly be thought to lessen the subjective culpability of divorced and remarried persons, we need to recall the following undeniable truth: If a couple that includes a divorced and remarried person abstains from sex, there is no ongoing objective violation of God’s law (provided that a return to the original spouse is no longer possible). There certainly was a violation of God’s law in the past histories of the persons involved. But the sin of divorce can be repented, confessed and absolved, and will then no longer constitute an obstacle for receiving Holy Communion. The sin of having contracted a second, civil union in violation of God’s law can also be repented, confessed and absolved, provided that the person in question is prepared to do what is in his or her power to live in a way that no longer contradicts God’s law. Such a way is available, even for civilly remarried divorcees who cannot separate due to their responsibility for children. This is the way of sexual abstinence. Nobody denies that the “brother-sister” solution—if it can be realized—removes the objective sinfulness of post-divorce situations. It cannot be objectively sinful merely to live with another person if there is no sexual or erotic activity going on in the relationship. My point here is not that the brother-sister solution is always possible to realize. However, when it is realized, the situation of the civilly married spouses is no longer objectively sinful.

So there is a course of action that is at least theoretically possible and that removes objective sinfulness from the situation. In some cases, however, it might not be practically possible to realize the brother-sister solution without causing damage to the children. Imagine, for example, a divorced and remarried woman who would like to rectify her post-divorce situation by living as brother and sister with her second spouse. But her spouse does not accept to abstain from sex, and he threatens to leave the woman and her children if she insists on abstinence. In such a case, it seems clear that the woman’s freedom is compromised, and that the subjective guilt that attaches to her is significantly reduced, if she (for the sake of protecting the children from harm) agrees to continue her sexual relationship. She might not be in a state of mortal sin.

But imagine instead a similar but slightly different scenario. The divorced woman is still civilly married to a man who would not accept to practice abstinence. In this scenario, however, the woman herself has no will to realize the brother-sister solution. So she has no will to rectify the objectively sinful situation, but is perfectly happy to let it continue. In other words, she would not chose to live as brother and sister even if she could get her man to comply. Can it still be said that no subjective culpability attaches to her? Clearly not, because in this scenario she consents completely to continuing her (objectively sinful) sexual relationship.

The possibility that deliberate consent may be lacking in some cases is the cornerstone of Pope Francis’s case for the softening of Eucharistic discipline. What he should have clarified, however, is that consent to an objectively sinful marriage situation is never lacking if the person concerned does not have a genuine will to rectify the situation by living as brother and sister (or separating, in appropriate cases).

In order to demonstrate how crucial this little detail is, let me take an analogy. Imagine a corrupt State clerk who is involved with the Mafia and embezzles money on their account. Every week he makes illegal economic transactions. Suppose that he one day feels the need to go to confession. He tells the priest that he cannot stop his shady business, because the Mafiosos are dependent on him, and they have threatened to kill his children if he stops embezzling. This presents a dilemma for the priest. It can be argued that he cannot give absolution unless the man agrees to cease with the illegal transactions. But it can also be argued that the priest could give absolution even if the man is intent on continuing to embezzle, considering that another course of action would threaten the lives of his children.

What everybody agrees about, however, is that the priest would be criminally negligent if he did not ask the following question: “Do you want to stop embezzling money? I mean, if you could stop without harm to your children, then you would do so—right?”

Suppose that the man would give the following answer: “To tell you the truth, Father, even if the Mafia didn’t threaten my kids, I would probably embezzle money anyway, because it would be very hard for me to make a decent living without connections to the Mafia. But what you refer to is just a hypothetical scenario, and since it is not within my power to change the situation, I figured that you could give me absolution anyway.”

My guess is that if Papa Bergoglio were the priest who got this kind of answer, the man who gave it would leave the confessional in a hurry, head first. Clearly, in this case, subjective culpability is not reduced, not even a little bit. It does not matter that the man is stuck in a situation where he practically has no room to maneuver. Since he does not have a genuine will to act otherwise than he is pressured to do, his consent to this course of action is complete.

This analogy shows that Pope Francis has a good point: A person who is in a second, civil marriage after a divorce can, with reduced subjective guilt, continue to do something that objectively speaking is gravely sinful, namely to have sex with his current partner. But his guilt for doing so is only reduced if he has a genuine will not to do it.

Let us go back to the confessional. The divorced and remarried woman wants forgiveness for having violated the bond of marriage. She explains that her second husband would not allow here to practice abstinence, so she cannot have a “firm purpose of amendment” in this respect—she cannot promise to attempt to practice abstinence. To attempt this would be to seriously jeopardize the well-being of her children.

Notice that in this situation, the threat to the children is much less serious than in the case of the corrupt clerk. The worst case scenario is that the children will experience a breakup of their family, as fifty percent of all North-American children do today. This is extremely bad, but it is not as bad as being killed. Now, suppose the priest would ask: “But you want to practice abstinence, right? If you could get your husband to agree, you would try to do it?”

If the woman gives a negative answer to this question, then she has no will to abolish the objective contradiction between her personal situation and God’s law. Since that objective contradiction is grave matter—as the Pope agrees—it follows that the woman gives deliberate consent to a grave sin. This means that she cannot receive Holy Communion. Pope Francis’s moral-theological reasoning in Chapter 8 has no bearing on her situation.

Those who want to deny that the woman must have a will to abstain from sexual sin must explain why the corrupt clerk must have a will to abstain from economic sin, despite his being caught in a similar dilemma. (I assume that nobody would deny that a genuine will to amendment must be present in the corrupt clerk’s case, if access to the sacraments is to be considered.) Is it because corruption is objectively a worse sin than adultery? Perhaps it is, but even so, this does not matter. So long as it is acknowledged that sexual relations with a new spouse after a divorce is “grave matter”, it follows that remarried divorcees who knowingly and freely consent to this matter are in mortal sin. The question of whether the matter is even graver in the case of corruption is wholly irrelevant.

So far, I have only discussed factors that can lessen responsibility through the application of pressure “from the outside”, so to speak—external factors that can reduce a person’s space to maneuver. But there are also internal factors to take into account, factors such as “inordinate attachments,” “affective immaturity,” “force of acquired habit,” “conditions of anxiety or other psychological or social factors.” What about a person who simply cannot abstain from sex for some of these reasons, and who therefore cannot practice the brother-sister solution?

This objection rests on a misunderstanding. The brother-sister solution does not require that people succeed in abstaining from sex. It only requires that people have a firm will and intention to do so. If a sex addict who has a genuine will to be abstinent does all that is in his power to realize this will, then even if he would actually have sex with his partner every week, he would still fulfil the requirements of the brother-sister solution. This means that he could get absolution, and receive Holy Communion. Only the absence of a firm purpose of amendment is an obstacle to receiving the sacraments.

If it is argued that some people are so affected by emotional immaturity, inordinate attachments, etc., that it is impossible for them even to will to be abstinent, then we have again encountered a misunderstanding. Undoubtedly, there are persons whose wills are totally enslaved by sin, or who suffer from addictions, or who for various other reasons have no wish at all to stop sinning. Some of these people may, for all we know, be declared innocent by God on Judgment Day, and it might be revealed that their subjective culpability was greatly diminished in certain respects because of their lack of freedom. But nobody here on earth can give absolution for sins that are not repented, and to repent of a sin means to have a will to stop sinning. It is nonsense to say that a person repents of having sex outside of marriage even though he has no will to stop having sex outside of marriage. So if affective immaturity, force of acquired habit, etc., have totally extinguished any will to stop sinning, there can be no question of administering the sacraments to the person in question. On the other hand, if a person to some degree is capable of wanting to stop sinning, then it does not matter if his ability in this respect is very limited. A sincere intention to live as brother and sister is enough for access to the sacraments to be granted, in accordance with the Church’s traditional teaching.

Perhaps Amoris Laetita’s silence about this crucial detail—that a remarried divorcee must have a genuine will to practice abstinence—is evidence that the Apostolic Exhortation, after all, downplays the objective sinfulness of extra-marital sexual relations. One gets the feeling that if the Pope had written about irregular economic transactions of the corrupt kind instead of “irregular” marriage situations, he would not have gone out of his way to find factors that reduce subjective culpability. It is clear, however, that the same kind of guilt-reducing factors can be found in the context of corruption and other sins.

The Pope often speaks as if relationships involving extra-marital sexual relations are deficient merely in the sense that they do not quite live up to the “ideal” of marriage. “Another thing is a new union arising from a recent divorce. . . . It must remain clear that this is not the ideal which the Gospel proposes for marriage and the family” (§ 298). This is misleading, at best, if it really is true that post-divorce marital relations are objectively gravely sinful. Normally, we distinguish between doing something gravely sinful and acting in a way that falls short of an ideal. We do not, for example, describe a child abuser as a person who falls short of the ideal of perfect parenting. To do so would be to downplay the seriousness of child abuse.

It is understandable, however, that the Pope wants to avoid harsh language when he speaks about irregular marriage situations. His strategy—which in itself is very commendable—is to meet people where they are, in order to gently lead them in the right direction. Pointing out the sinfulness of certain situations too often and too clearly might counteract this strategy. So I am prepared to cut the Holy Father some pastoral slack in this respect. But a certain rhetorical softness would be compatible with stating—at least once—the following fact: Remarried divorcees who do not have a genuine will to live in abstinence, or who have this will but do not use all morally acceptable means at hand in order to realize it, can under no circumstances short of lethal danger be eligible to receive the sacraments.

Mats Wahlberg is associate professor of systematic theology at Umeå University in Sweden.

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