Crimen

Down yonder some folks have been discussing what canon law would say about Michael Shiavo getting married to his common-law wife if he’s successful in bumping off his actual wife.

This raised the issue of crimen or the impediment of "crime," which is described in canon 1090.

Assuming he’s Catholic (something of which I have no knowledge but which may be the case), Michael Schiavo may be a potential subject of Canon 1090, which states:

§1. Anyone who with a view to entering
marriage with a certain person has brought about the death of that person’s
spouse or of one’s own spouse invalidly attempts this marriage.

§2. Those who have brought about the death of a
spouse by mutual physical or moral cooperation also invalidly attempt a
marriage together.

Michael could be impeded from marrying his common law wife under section 1 if he has operated alone in trying to bring about Terri’s death, though the impediment could also arise under section 2 if his common-law wife has cooperated with him in bringing about Terri’s death. Since I don’t know what his common-law wife may or may not have done, let me focus on section 1:

The central question is whether Michael is trying to kill Terri in order to marry his common-law wife. If he is trying to murder her for reasons unrelated to marrying his common-law wife then this canon would not be triggered.

If, after Terri’s death, especially if it were soon after Terri’s death, he sought to marry his common-law wife then that would be evidence that the murder was performed at least in part to facilitate this and thus that he was impeded from marrying her.

Note that the canon speaks of performing the crime "with a view to" marrying someone. This suggests that the canon is triggered even if the death is not done principally for the sake of marrying the new person. One could have additional motives for wanting to kill one’s spouse. For example, if Michael wanted to kill Terri (a) because he stands to gain money by doing so and (b) because he’s afraid of what she might say about him should she ever recover and (c) because he wants to marry his common-law wife then reason (c) alone would seem to trigger the canon as the killing was done "with a view to" (c) even if (a) or (b) were the stronger motives. (Mind you: I’m not saying that Michael has motives like (a) or (b), nor am I saying that he has motive (c); I don’t even know if he’s Catholic; I’m just illustrating a point of Church law.)

Note that the canon speaks of performing the crim in order to marry "a certain person." There has to be a definite person with respect to whom the crime is committed. If one were to kill one’s spouse simply to be able to remarry, but without having a certain person in mind, then the canon is not triggered.

Note also that the canon speaks of one who has "brought about the death" of a spouse. This is different than murdering the spouse. Whether something counts as murder tends to be a matter of the civil law, and so even if the state of Florida does not judge Terri’s killing as murder, the canon would still seem to be be triggered as Michael would have still "brought about the death" of Terri though a perversion of the civil law. (NOTE: Accidents don’t count under this canon unless the "accident" is brought about deliberately. True accidents are, well, accidents, and thus are not done "with a view to" anything. Thus if you and your spouse are Darwin Award stupid and are having a happyfun game of toss the rattlesnake and one of you dies, it doesn’t trigger the canon.)

The canon does not require any judicial process to take it’s effect. It’s automatic. If Michael brings about Terri’s death in order to marry his common-law wife (and if he’s Catholic) then he’s impeded from marrying her. Whether his having done so is provable in an ecclesiastical court is a separate matter, but he’s impeded from marrying her whether it’s provable or not. If he tries to marry her soon after Terri’s death, that would seem to establish a presumption that he did so and is thus impeded.

The impediment also is not removed if he defects from the Church by a formal act. Defecting from the Church by a formal act would avert the impediment of failing to observe the Catholic form of marriage, but failure to observe form is a different impediment than this one, and there is no removal of this impediment by leaving the Church. If he ex-Catholicizes himself then he is still impeded from validly contracting marriage with the woman.

He would not, however, be impeded from contracting marriage with a different woman. The canon says that he "invalidly attemts this marriage" where "this marriage" refers to the marriage for whose sake the killing is done. If he killed Terri in order to marry his common-law wife and then, afterwards, concludes "Well, enough of you" with respect to the common-law wife and marries somebody else, he would not be impeded in that case. He’s only impeded from marrying the woman for whose sake he committed the crime.

Finally, all of this hinges on one other fact: that he is actually validly married to Terri. If he’s not validly married to her then the canon would not be triggered as she would not in actuality be his spouse. If, purely for purposes of example, he was always such a twisted individual that he failed to exchange valid matrimonial consent with Terri such that she was his wife under civil law only and he then bumped her off then the canon would not be triggered.

It might ought to be. The next time the Code gets revised or amended they might want to strengthen this canon, but as it is

Laws which
establish a penalty, restrict the free exercise of rights, or contain an
exception from the law are subject to strict interpretation [canon 18].

Since canon 1090 restricts the free exercise of a right (the right to marry), it has to be given a strict interpretation, and so there would be a number of matters (such as those described above) in proving that Michael had triggered the canon.

(Cowboy hat tip to the reader who e-mailed to make sure I took note of the combox discussion.)

Author: Jimmy Akin

Jimmy was born in Texas, grew up nominally Protestant, but at age 20 experienced a profound conversion to Christ. Planning on becoming a Protestant seminary professor, he started an intensive study of the Bible. But the more he immersed himself in Scripture the more he found to support the Catholic faith, and in 1992 he entered the Catholic Church. His conversion story, "A Triumph and a Tragedy," is published in Surprised by Truth. Besides being an author, Jimmy is the Senior Apologist at Catholic Answers, a contributing editor to Catholic Answers Magazine, and a weekly guest on "Catholic Answers Live." View all posts by Jimmy Akin