THE LAW ON THE USE OF EXPERTS IN MARRIAGE CASES GENERALLY

CIC is more attentive to marriage preparation than was CIC 1917. It outlines the responsibility of the faithful for sacramental preparation, including marriage.¹¹⁵ Although the term ‘expert’ is not used, the local ordinary has responsibility to provide for pre- and post-marital assistance, having, ‘if opportune’, consulted men and women ‘of proven experience and expertise’.¹¹⁶ But the law is silent on what is required to fulfill these criteria. Nevertheless, canon law requires that it be positively established, with the help of the community, that no obstacle to valid or lawful celebration of marriage exists; this requires moral certainty to be reached.¹¹⁷ Although marriage can be postponed, allowing time for resolution of doubt, there is no mandatory requirement to consult experts, at this stage, about the capacity of the parties to marry.¹¹⁸

As was the case under CIC 1917, the current canons governing the use of experts are placed amongst those governing trials.¹¹⁹ CCEO does likewise and makes similar provisions to CIC.¹²⁰ CIC 1917, like CIC provided for consultation with experts whenever the law or the judge

required it to establish some fact or to discern the true nature of something.¹²¹ Without defining the word ‘expert’, it is, and was under CIC 1917, acknowledged that nevertheless, dialogue with experts was required, not just in judicial cases, but in other areas of decision-making and in other types of cases, as we have seen in previous chapters.¹²² The provisions of these codes will be

‘not in line with current doctrine and jurisprudence’ in the latter. The Rota unheld the validity of the marriage in both cases.

115 CIC, cc. 843§2; and 1063. See Appendix I.

116 CIC, c. 1064. See Appendix I. The American translations use the words ‘proven experience and skill’.

117 CIC, cc. 1066 - 1070. See Appendix I. Kelly in L&S, p583, para 2094 explains that this obligation is not restricted to reporting listed impediments, but includes ‘other possible invalidating factors’ such as, ‘serious psychiatric illness’, ‘gross personal immaturity’, a ‘manifestly serious alcohol problem’, or the existence of duress or a condition. Doyle, Text&Comm, p581, para 2087 explains that ‘positive proof’ of the legal freedom to marry is required and ‘the person responsible for the preparation of the couple must be morally certain about their

freedom…’.

118 CIC, c. 1077. See Appendix I. As this canon restricts the free exercise of rights, it must, according to c. 18 be interpreted strictly.

119 CIC 1917, Chapter III of Volume VII, Book IV on Ecclesiastical Trials, cc. cc 1792-1805. CIC Book VII:

Judicial Procedures, cc. 1574-1581.

120 CCEO, Title XXV, cc. 1255-1262.

121 CIC 1917, c. 1792. See Appendix III. CIC, cc. 1574-1581. See Appendix I.

122 Breitenbeck, Doctoral Thesis, p6 acknowledges the lack of definition despite the requirement to consult experts in ‘several key areas of decision-making’. Bourgon, L&S, p891, para 3108 refers to consulting ‘the psychological or psychiatric expert’ in marriage-nullity cases, but other situations could call for ‘theological, medical, legal, artistic’,

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compared here as it is important to distinguish: (a) the roles that experts play in marriage nullity cases; and (b) discretionary and mandatory use of experts.

Experts under CIC 1917: Under CIC 1917, the ecclesiastical judge:

• Selected the expert: in private cases, he did so at the request of at least one party, with the consent of the other; in cases involving the public good, he was obliged to consult the promoter of justice and defender of the bond;¹²³

• Had discretion to consult an expert in certain circumstances, or to recall an expert for clarification; ¹²⁴

• Defined the issues to be addressed by the expert;¹²⁵

• Decided on the number of experts if not stipulated by law;¹²⁶

• Had discretion as to whether or not parties could be present while the expert fulfilled his task;¹²⁷

• Had discretion to set the time-limit for the expert’s submission of his report, and to extend this having first consulted the parties;¹²⁸

• Had discretion to consult additional experts if the original experts disagreed or were unsuitable;¹²⁹

• Was obliged to weigh, in addition to the experts’ opinions, the circumstances of the case;¹³⁰ and:

• Was obliged to explain, when he gave his decision, why he accepted or rejected the experts’ opinions.¹³¹

or ‘financial experts’. Wrenn, Text&Comm, p986, refers to ‘psychiatrists, psychologists’ and ‘gynaecologists, urologists, and even handwriting analysts’. Cox, New Comm, p1693, refers to experts in ‘psychology, anthropology, sociology, theology, finance’ and ‘authentication of documents etc’. Boccafola, in ExComm, Vol IV, 2, p1328, refers to experts in: the restoration of ‘fine art’; ‘architecture or building repair; ‘the value of real estate’; or the fields of ‘economics, civil law, or even canon law itself’; and ‘the medical doctor and/or psychiatrist’.

123 CIC 1917, c. 1793. See Appendix III.

124 CIC 1917, cc. 1801§2; 1806; and 1808. See Appendix III.

125 CIC 1917, c. 1799§1. See Appendix III.

126 CIC 1917, c. 1793§3. See Appendix III.

127 CIC 1917, c. 1797§2. See Appendix III.

128 CIC 1917, c. 1799§2. See Appendix III.

129 CIC 1917, c. 1803. See Appendix III.

130 CIC 1917, c. 1804§1. See Appendix III.

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However, CIC 1917, canon 1976 provided:

‘An inspection of the body of either or both spouses to be conducted by experts is required in cases of impotence or non-consummation, unless this appears evidently useless under the circumstances’.

Moreover, canon 1982 provided:

‘Also in cases of defect of consent from amentia [insanity], there is required the vote of experts who, if there is cause shall examine the infirm one, according to the precepts of the art, [as well as] the actions that led to the suspicion of amentia; moreover, the experts must hear as witnesses those who visited the infirm one before’.

Therefore, the mandatory requirement to consult experts referred only to: (a) cases concerning impotence or non-consummation of marriage ‘unless this appears evidently useless’; and (b) to cases concerning ‘amentia’, ‘if there is cause’.¹³²

Under CIC 1917, experts were:

• Obliged to tell the whole truth; failure resulted in mandatory punishment;¹³³

• Required to be found suitable by a competent body;¹³⁴

• Considered, once they had taken the required oath, to have accepted their function;¹³⁵

• Responsible for damages if they failed to complete their task in time;¹³⁶

• Required to submit their opinions either orally or in writing; if orally, a written record was to be made and signed;¹³⁷

• Required to explain their methodology, argumentation and basis for their decision;¹³⁸

131 CIC 1917, c. 1804§2. See Appendix III. Augustine, Vol VII, p248, interestingly, interprets the provision ‘when he gives his decision’, as not being obliged to give reasons for his decision, but if he does, he should explain why he admitted or rejected the conclusions of the experts’.

132 Doyle, Text&Comm, at p775 explains: ‘Traditionally, this ground of nullity [canon 1095] was known as amentia or insanity. This is a legal rather than medical term having no precise diagnostic meaning in either discipline’.

133 CIC 1917, c. 1794. This seems to suggest that experts were chosen from among the faithful. See Appendix III.

134 CIC 1917, c. 1795§1. See Appendix III.

135 CIC 1917, c. 1797§1. See Appendix III.

136 CIC 1917, c. 1798. See Appendix III.

137 CIC 1917, c. 1801§1. See Appendix III.

138 CIC 1917, c. 1801§3. See Appendix III.

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• Required to submit individual reports unless the judge requested one to be signed by all;

any individual disagreements were to be noted;¹³⁹

• Subject to the same norms as witnesses in respect of objections and exclusion;¹⁴⁰ and:

• Entitled to remuneration.¹⁴¹

In marriage cases, relatives could act as witnesses to the investigation.¹⁴² In cases of impotence or non-consummation, character references as to the veracity of the parties were required.¹⁴³ Two ‘medical’ experts were required to examine the man; two midwives were required to examine the woman unless she requested two physiciansor the Ordinary considered this

necessary.¹⁴⁴ Inspection of the woman required the presence of an approved chaperone.¹⁴⁵ Each expert was required to examine the woman individually and to submit individual reports within the prescribed time limit.¹⁴⁶ The judge had discretion to have mid-midwives’ reports

scrutinised.¹⁴⁷ Having submitted their reports, all experts and the chaperone involved were interviewed individually under oath.¹⁴⁸ Those who examined the parties previously could not act as experts; they could however, give evidence as witnesses.¹⁴⁹

139 CIC 1917, c. 1802. See Appendix III.

140 CIC 1917, cc. 1795§2; and 1796. See Appendix III.

141 CIC 1917, c. 1805. See Appendix III.

142 CIC 1917, c. 1974. See Appendix III. Augustine, Vol V, at p422, explains that close relatives were allowed to give testimony in marriage cases because they ‘know their genealogy or pedigree better than strangers’.

143 CIC 1917, cc.1975. See Appendix III. Augustine, Vol V, at p423, explains that the ‘seven-hand’ (septima manus) proof is of Germanic origin, adopted by Gratian and by the Decretals. Husband and wife each bring forward seven relatives, friends or acquaintances, of either sex, of any age or condition, preferably of their own kin, who are acquainted with their character, actions and conduct to testify to their trustworthiness. Whilst they could not testify to the non-consummation, they could be ‘asked whether the couple lived together affectionately, whether there were quarrels, whether medicine was used to cure impotency or a physician was consulted’. At p424 he suggests that an example of this exception ‘unless this appears evidently useless’, would be a case of a woman who lived as a prostitute following civil divorce, when bodily inspection ‘could hardly bring results’. He also considers that the judge chose the experts ‘after consultation with the defensor vinculi’ [defender of the bond].

144 CIC 1917, c. 1979§§1 and 2. See Appendix III. Augustine, Vol V, at p425, explains: that two physicians were required for the man and, for the woman, two midwives, of good reputation, who were ‘legally approved (by a state diploma or county or city certificate) were required; all were to be appointed ex officio’. See CIC 1917, c. 1980§2, for reference to these doctors as ‘physicians or obstetricians’.

145 CIC 1917, c. 1979§3. See Appendix III.

146 CIC 1917, c. 1980§§1 and 2. See Appendix III.

147 CIC 1917, c. 1980§3. See Appendix III. Augustine, Vol V, at p426 explains that this would ensure that mid-wives’ reports were ‘made along scientific lines’.

148 CIC 1917, c. 1981. See Appendix III. Augustine, Vol V, at p426, points out that these professionals were also bound by their professional obligation to secrecy.

149 CIC 1917, cc. 1977; and 1978. See Appendix III.

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Although ‘amentia’ was interpreted narrowly under CIC 1917, its effect on marital consent was understood and consequently, such cases required the vote of experts, who, if there was cause, were to examine, according to their expertise, the affected person and the alleged behaviour.¹⁵⁰ Augustine explains that these experts were psychiatrists.¹⁵¹ In addition, experts who had attended the party previously ‘should’ be heard as witnesses.¹⁵²

Although CIC 1917 required that experts were found suitable by a ‘competent’ body, implying fitness to practice, it was silent on specific professional qualifications. Augustine held:

‘[S]cientific equipment is the first qualification of an expert. From a physician, e.g., we demand above all medical knowledge and experience. This, however, does not exclude, but rather implies, honesty and conscientiousness … [Experts should] hold a certificate or diploma as to their fitness from a competent public authority, … but no exception [taken against the expert] is admissible on the sole plea that a man has no public certificate’.¹⁵³

Breitenbeck holds that the ‘general consensus of commentators’ was that experts were used because they had ‘some type of specialized or technical training or art’.¹⁵⁴ She consideres that Augustine held the ‘strongest’ view, requiring experts to be able to apply ‘their skill or science to the subject in dispute’, whilst others held that an uneducated, uncultured person, including one who lacked basic reading skills, could, in certain circumstances be considered ‘expert’, even in preference to a qualified expert, particularly if they possessed practical experience.¹⁵⁵

150 See Appendix III: CIC 1917, c. 1982. Augustine, Vol V, p427, discussing c. 1982 on amentia, uses the term

‘verdict’, rather than ‘vote’ (Latin: suffragium peritorum); there is no suggestion that the experts cast a vote with regard to the tribunal’s decision for nullity or otherwise. Collins Latin-English Dictionary (Glasgow, 1989) gives additional meanings for ‘suffragium’: i.e., ‘judgment’ or ‘approval’.

151 Augustine, Vol V, at p427.

152 Ibid.

153 Augustine, Vol VII, at p243.

154 Breitenbeck, Doctoral Thesis, p30.

155 Breitenbeck, Doctoral Thesis, p31, cites Moran, in Sabio Moran and Marcelino Cabreros De Anta, Comentarios al Código de Derecho Canónico (Madrid, Biblioteca de Autores Cristianos, 1964), 3: 568, as holding that

uneducated people, even those who could not read, could nevertheless have the required ‘expertise’ and only if, after all circumstances were weighed and found equal, could preference be given to someone holding an academic degree or official title. Breitenbeck states, citing Regatillo, in Eduardus Regaltillo, Interpretatio et Iurispredentia Codicis Iuris Canonici, (Sanrander: Sal Terrae, 1949), p329, that there were those who held that ‘uncultured, unlearned persons are to be admitted [as experts] provided that they have a practical knowledge of the matter in question, such as a farmer in a matter relating to the land’.

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Experts under CIC: The leading canon on experts under CIC is canon 1574, which states the general principle:

‘The services of experts are to be used whenever, by a provision of the law or of the judge, their study and opinion, based upon their art or science, are required to establish some fact or to ascertain the true nature of some matter’.

Under CIC, the ecclesiastical judge:

• Appoints the expert, at the request of the parties or having consulted them, or he accepts expert reports already made; he can also approve private experts;¹⁵⁶

• Defines, having listened to the parties’ suggestions, the points to be addressed by the expert;¹⁵⁷

• Sets the time-limit for the submission of expert opinions or reports;¹⁵⁸

• Has discretion to recall an expert for clarification; ¹⁵⁹ and:

• Is obliged both to weigh, in addition to the experts’ opinions, all the circumstances of the case, and to explain why he accepts or rejects expert evidence.¹⁶⁰

These canons are silent on the obligation to consult the promoter of justice and the defender of the bond.¹⁶¹

Experts (which, as we shall see, may be either court-appointed or ‘private’ and party-nominated but court-approved) are:

• Entitled to receive accrued evidence and any documents required for the fulfillment of the task; private experts, although permitted to submit their own reports are only allowed access to documents ‘in so far as they are required for the discharge of their duty’;¹⁶²

156 CIC, cc. 1575 requires at least consultation with the parties; it is silent regarding consent. Also c. 1581§1. See Appendix I.

157 CIC, c. 1577§1. See Appendix I.

158 CIC, c. 1577§3. See Appendix I.

159 CIC, c. 1578§3. See Appendix I.

160 CIC, cc. 1579§§1 and 2. See Appendix I.

161 DC, Article 204§2 requires the parties and the defender of the bond to be notified of the appointment. See Appendix V.

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• Required to explain: (a) how they identified people, places or things, (b) their methodology; (c) their argumentation; and (d) the basis for their conclusions;¹⁶³

• Required to submit individual reports unless the judge requests one to be signed by all;

differences of opinion are to be noted;¹⁶⁴

• Subject to the same norms as are witnesses in respect of objections and exclusion;¹⁶⁵ and:

• Entitled to remuneration.¹⁶⁶

Unlike CIC 1917, these canons are silent on: the requirement to be truthful;¹⁶⁷ the requirement to take an oath;¹⁶⁸ punishment in case of failure and responsibility for damages; and suitability to be confirmed by a competent body.¹⁶⁹ As experts would be, at least generally speaking, professionals, one would expect the provisions of CIC 1917 to be equally applicable and pertinent today. However, in some countries, such as in the United Kingdom, decisions of Catholic tribunals are not recognized at civil law; therefore, punishment in cases of failure and responsibility for damages are more appropriately dealt with by the civil courts.

In marriage nullity cases CIC, in canon 1680, is quite specific:

‘In cases concerning impotence or defect of consent by reason of mental illness, the judge is to use the services of one or more experts, unless from the circumstances this would obviously serve no purpose. In other cases, the provision of Can. 1574 is to be observed’.¹⁷⁰

162 CIC, cc. 1577§2; and 1581§2. See Appendix I. See also Chapter 1 fts 147 - 148, regarding the right of the expert to information which could influence his decision.

163 CIC, c. 1578§2. See Appendix I.

164 CIC, c. 1578§1. See Appendix I.

165 CIC, cc. 1576; and 1555. See Appendix I.

166 CIC, c. 1580. See Appendix I.

167 CIC, c. 1577§2, which, however, requires ‘proper and faithful discharge’ of duty. See Appendix I. See also, DC, Article 205, which requires that experts be chosen because of, inter alia, their ‘religiosity and honesty’ and, for marriage nullity cases under CIC, c. 1095, their adherence ‘to the principles of Christian anthropology’. See also, Article 207§2, requiring experts to carry out their task ‘properly and faithfully’. See Appendix V. Moreover, as they are subject to the norms governing witnesses, they are also obliged to tell the truth.

168 Although CIC, c. 1562§1 requires the judge to remind ‘the witness’ of ‘the grave obligation to tell the truth and nothing but the truth’ and §2 requires the judge to administer an oath ‘to the witness’ but makes provision for a witness to be heard unsworn. C. 1532 gives the judge discretion regarding whether or not an oath is to be administered, but only in cases which do not involve the public good.

169 DC, Article 205§1, which, however, requires a testimonial for experts. See Appendix V.

170 This canon is placed in Book VII, Judicial Procedures, Part III, Certain Special Processes, Title I Matrimonial Process, Article 4, Proofs. The American translations use slightly different words. For example, Text&Comm, p1013 uses ‘unless it is obvious from the circumstances that this would be useless’, and New Comm, p1773 uses

‘unless it is clear from the circumstances that it would be useless to do so’.

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This is an example, therefore, of the law mandating the use of at least one expert, as stipulated in CIC canon 1574. This is the only specific requirement for the use of experts as a means of proof in a canonical trial.¹⁷¹ So, by general principle, like CIC 1917, CIC requires the use of experts in cases of impotence and defect of consent by mental illness, albeit that CIC is silent in respect of non-consummation and on the need for bodily inspection in cases of impotence.¹⁷² The caveat in CIC canon 1680, ‘unless … this would serve no purpose’, is akin to that of CIC 1917 canon 1976 regarding impotence and non-consummation (i.e. ‘unless this appears evidently useless under the circumstances’). Likewise, the requirement in CIC canon 1574 mandating the use of experts to

‘establish some fact or to ascertain the true nature of some matter’ is similar to that in CIC 1917 canons 1792 and 1982 concerning amentia which required examination by experts ‘if there is cause’. It is clear, therefore, that CIC, like CIC 1917, mandates the use of experts whenever a pertinent fact falling outside the judges’ competence needs to be established; in such cases, the judge therefore has no discretion.

Whilst judges can decide on the number of experts, if they invoke the exception, they must, nevertheless, reach moral certainty of nullity on the basis of the acts and the proofs; otherwise the legal presumption of validity prevails. Therefore, in order to find for nullity of marriage, the tribunal must be in possession of sufficient evidence to prove: the fact of antecedent and

perpetual impotence; or the fact of an antecedent mental condition, the nature, severity and adverse effect of which caused incapacity to marry. As such matters are usually beyond the competence of the ecclesiastical judge, the law recognises the need for expert opinion.

Experts under CCEO: The wording of the canons here governing experts is similar to CIC.¹⁷³

Experts under CCEO: The wording of the canons here governing experts is similar to CIC.¹⁷³

In document The use of experts in the Roman Catholic Church with particular reference to marriage cases (Page 176-184)