Edward Peters, Director of the Office for Canonical Affairs for the Diocese of San Diego, used this estimable journal to venture a statistical and rhetorical rebuttal against criticism of the "surge in American annulment activity�1 �Surge� understates what has occurred. Far from a sudden rise followed by decline, American tribunals have been mass producing annulments without interruption for a generation. The criticism does not emanate mainly from benighted preVatican II Catholics still living in the past. Indeed, the most trenchant and sustained criticism has come from the Roman Rota, the Apostolic Signatura, and the Holy Father himself. Vatican displeasure with the American way of annulment is not of recent vintage. It has existed for at least a quarter of a century. Peters' rebuttal, fraught with statistical and methodological malaprops, is unlikely to assuage or neutralize Rome's perennial concerns. Unlike most other justifications for the American way of annulment, Peters' effort focuses on the quantitative dimension of the issue. Yet overall it reflects what has become the veritable party line among American canonists to justify America's dubious distinction as the annulment capital of the universe .2
Church annulment proceedings fall into either of two broad categories: ordinary or documentary process. Ordinary process decrees of nullity entail a trial, while documentary process cases can usually be handled administratively. In trying to make sense of annulment statistics and policy, it is vital to keep the two types of cases in mind. Statements about one do not necessarily apply to the other. Peters adverts to both types but does not go into the details of important procedural, juridical, and statistical factors peculiar to each type. In 1991 - a year he considers fairly typical - 41,121 ordinary process annulments were granted by U.S. tribunals, compared to 20,829 of the documentary process variety.3 Neither type of annulment is taken lightly by Rome, but ordinary process declarations of nullity are the crux of the Vatican's intense dissatisfaction with the performance of U.S. tribunals.
Documentary process cases derive from circumstances beyond tribunal control. Among Catholics, they stem in large measure from catechetical deficiencies. Church teaching on the nature, permanence, and indissolubility of marriage has been ineffective, either in its transmission or reception. Documentary process cases are comparatively open and shut. Typically a paper trail shows that a baptized Catholic married outside the Church (lack of form), or that a person remarried while still in a previous marriage (ligament) never annulled. There is little doubt whether tribunals should accept such cases for further consideration. Once accepted, they are amenable to fairly swift resolution. Ordinary process cases, however, are inherently far more problematic. Nearly all turn on establishing defective (invalid) consent when the marriage was contracted. If documentary process annulments are created by factors over which tribunals lack control, ordinary process declarations of nullity are in large measure the product of canonical legerdemain. Determining a person's state of mind and will when consent was exchanged is a formidable psychological and juridical undertaking. It scarcely needs saying that psychiatry and clinical psychology are not hard, exact sciences. Unless reliable clinical findings are available, the evidentiary trail is obscure and decisions that are supposed to embody moral certitude are in reality psychological and juridical guesses.
Delineating even probable cause that an ordinary process case is justiciable is frequently quite speculative. And once an ordinary process petition is accepted for trial the tribunal's challenge becomes even more daunting. It must decide here and now, sometimes decades after the nuptials, the mental state of either or both spouses when the marriage was contracted. That requires an essentially psychohistorical investigation that would put even the most erudite psychiatrists and clinical psychologists to stern test. Many tribunals, unable to afford clinicians of that caliber, rely on lesser members of the helping professions, such as social workers and counselors. Besides retaining a psychological consultant, parties and witnesses must be deposed, testimony transcribed, before the tribunal can realistically hope to arrive at a decision with a semblance of moral certitude. Tribunal claims notwithstanding, the outcome of investigations and deliberations in these cases is seldom empirically sound.
Peters' defense of America's annulment explosion rests mainly on two postVatican II developments: Procedural changes in handling petitions for annulment, and inclusion of C. 1095 in the new code. In 1970 U.S. tribunals, with grudging Vatican approval, began to operate under the aegis of twenty-three new rules - the American Procedural Norms (APN) - designed to expedite the processing of annulment cases. Initially, the APN were an experimental departure that was to last three years. Their lifespan was extended to 1975, and subsequently lengthened until the new code took effect at the end of 1983. Manifestly, they were meant to provide prospective petitioners with their day in court, so to speak, by making tribunals more accessible and by accelerating the processing of worthy petitions. They were not intended to ensure decrees of nullity for nearly all comers. While in force they undeniably provided substantial lift to America's ascent to the pinnacle of annulment production. Currently U.S. tribunals no longer operate under rules custommade for them, hence the argument that procedural changes are keys to America's past and present status as the Catholic world's annulment Mecca collapses. De jure tribunals everywhere are now bound by the same ground rules.
De facto, however, policies and practices associated with the APN years persisted after promulgation of the new code. If the APN's manifest function was to make tribunals more accessible, one of their latent functions was to act as canonical proving grounds for measures that would sustain a high output of annulments. Even while the APN were in force, their specifications were often finessed, stretched, neutralized, and even flouted. Some aspects of the APN were incorporated into the new code. But evasive tactics prevalent during the APN years also carried over to the present. This is shown by examining two of the APN that were especially instrumental in increasing the annulment flow from trickle to deluge.
APN 3 specified that �A collegiate Tribunal must be constituted for each case.� The Episcopal Conference, however, with permission from the Holy See, could �derogate from this norm for a specified period of time so that a case may be handled by a single judge.�4 Two conditions attached to the derogation: There had to be a grave reason for it, and no formal objection to it by the judge, the defender of the bond, the promoter of justice and either of the parties. Singlejudge courts are suitable for documentary process cases; indeed, most can be handled by a tribunal clerk supervised by a canon lawyer. But ordinary process cases are not juridically amenable to summary treatment. The difficulties that inhere in such cases call for the internal checks and balances that a collegiate tribunal has the potential to provide. Such monitoring is not ordinarily forthcoming from defenders of the bond, most of whom lack the requisite training in canon law. On the other hand, collegiate tribunals will not assure a decrease in the outpouring of decrees of nullity as long as the panelists are true believers in the annulment ideology that pervades the American tribunal system.
In practice, APN 3's strictures were systematically ignored in both kinds of cases. Derogation, clearly intended to be an interim arrangement, became standard procedure. �Specified period of time,� for all intents and purposes, became coterminous with the lifespan of the APN. �Grave reason� became a convenient rubric for sundry situations: shortage of tribunal personnel, large case backlog, petitioners anxious to enter or validate second marriages and return to the sacraments, and the pastoral imperative to �heal.� Such factors led to a crisis mindset among tribunalists, impelling them to dispose of cases with maximum dispatch. A systemic sense of urgency may have been appropriate for dealing with the buildup of documentary process cases. But with ordinary process cases, more than any other factor the virtually indiscriminate acceptance of petitions for adjudication was the primary force behind prolonged dependence on singlejudge courts. In any event, American tribunals relied almost exclusively on singlejudge courts to nullify tens of thousands of marriages.5
The new code specifies that �contentious cases ... concerning the bond of marriage� are reserved to a collegiate tribunal of three judges.� Ordinary process cases are structured to be contentious even when respondents are complicitous.6 Otherwise defenders of the bond would be mere canonical sycophants. Judging from the minute number of decrees of nullity reversed on appeal, either that is precisely how most defenders enact the role or they are ineffective in discharging their responsibilities. If for a First Instance trial �it is impossible to constitute a college of judges, the Episcopal Conference can for as long as the impossibility exists, permit the Bishop to entrust cases to a sole clerical judge.�7 Despite these caveats, singlejudge trials at First Instance continue as the mode throughout the tribunal system. I have interviewed dozens upon dozens of parties to annulments granted during and after the APN experiment, and have yet to come upon anyone who was informed by the tribunal of the right to request a collegiate panel of judges. Failure to notify a respondent of this right probably compromises, if not violates, the �right of defense.� �Impossibility� may be due to tribunal staffing problems. But to a much greater extent, it is created by the tribunals themselves through their virtually opendoor acception of petitions. Indeed, many cases they appear to turn aside are really abandoned at the initiative of petitioners.
Proponents of America's approach to an annulment are inclined to rationalize the tribunals' expansive welcome mat by pointing out that the right to petition for an annulment is absolute. The fact that there is no corresponding obligation to accept all petitions presented is muted. While documentary process petitions allow little room for tribunal discretion, ordinary process petitions are amenable to rigorous screening. Yet American tribunals treat most of them as virtual entitlements to fullblown trials. Accordingly, the acceptance rate of ordinary process petitions is extraordinarily high. Even in a society as litigious as the United States, the overwhelming majority of suits filed in civil courts do not go to trial. That petitions for divorce and bankruptcy represent exceptions to that rule has obvious symbolic significance in light of how tribunals operate. In any event, the Rota has noted on several occasions that many cases with no apparent juridic basis go to trial. But American tribunalists have shown remarkable talent for transforming what is not apparent into what is apparently real. Moreover, once a petition is accepted, the nullity die is pretty well cast, since about 90 percent of ordinary process petitions accepted result in affirmative decisions.
Prior to the APN, a conforming opinion by an appellate tribunal was required before a First Instance ordinary process declaration of nullity took effect. In affirmative documentary process cases, unless the defender appealed, there was no review at Second Instance. Under APN 23II automatic appeal to Second Instance of First Instance ordinary process decrees of nullity became discretionary. The norm stated that in �those exceptional cases where in the judgment of the defender of the bond and his Ordinary an appeal against an affirmative decision would clearly be superfluous, the Ordinary may himself request of the Episcopal Conference that in these individual cases the defender of the bond be dispensed from the obligation to appeal so that the sentence of the first instance may be executed immediately.�8 In short order the exception became the rule for ordinary as well as documentary process cases. Evidently few potential appeals against affirmative decisions were seen as anything but superfluous. Most estimates for 1968 place the number of annulments granted by U.S. tribunals between 400 and 600. By 1980, thanks in no small measure to the APN, the number had risen to 53,858, constituting 84 percent of the world total of 64,279.9
Dispensing with automatic appeal of First Instance ordinary process annulments was not among the APN that made their way into the new code. Restoration of Second Instance ratification was strongly opposed, to no avail, by the National Conference of Catholic Bishops. Reversion to the earlier procedure was surely intended to stanch the flow of ordinary process decrees of nullity. Peters makes no mention of this particular procedural change. But like many welllaid plans, this one fell far short of realization. Ordinary process annulments, to be sure, became somewhat more cumbersome, slowing the assembly line somewhat, but America's annulment output remained fairly constant.
In practice, Second Instance review became almost wholly perfunctory. During 1984 and 19861994,10 U.S. Second Instance tribunals ratified 342,218 ordinary process decrees of nullity, retried and ruled for nullity in 13,303, and decided against nullity in 1,412. Second Instance tribunals in the rest of the world, despite adjudicating 250,000 fewer cases, ruled against nullity in 5,890 cases. Putting this another way, an American ordinary process annulment had four chances in a thousand of being overturned at Second Instance, as opposed to 56 chances in a thousand for ordinary process annulments granted elsewhere. One need not be a professional oddsmaker to perceive the striking character of the figures. They show the minimal effect the return of mandatory Second Instance review had on the U.S. tribunal system's ability to grind out ordinary process annulments. What was intended to serve as a brake became instead a rubberstamp. Rome, plainly, underestimated the resourcefulness of American tribunalists.
The rubberstamp function of mandatory review was practically ordained by perceived pastoral and administrative imperatives. Any appreciable increase in the number of 1st Instance annulments reversed at 2nd Instance would have curtailed �healing� and created turmoil in the operations of the U.S. tribunal system. Such cases would require 3rd Instance review by the Rota for a second conforming decision. In most instances the denial of nullity would be upheld. The Rota, pressed to manage its current docket, would have to be enlarged to accommodate a heavier caseload. Given the Rota's tougher stance on annulment, the �healing� U.S. function of an annulment would be downsized and delayed. Furthermore, 3rd Instance review in Rome would increase the visibility of the errors, irregularities, and questionable practices of America's diocesan tribunals. To circumvent these untoward options the U.S. bishops sought to set up their own Third Instance tribunals. A handful of cases were tried at that level in the U. S. before Rome, for obvious reasons, halted the preemption of appellate review proper to the Rota.
Peters displays a proclivity for juxtaposing logically unrelated sets of data. Making no allowance for profound differences in how diocesan tribunals and the Church's highest appellate court conduct their business, he compares the U.S. First Instance tribunals' affirmative rate (�only 89 percent�) with the Rota's. Relying on Mendonca's summary of Rota decisions between 1971 and 1988, he writes that during 19821984 the Rota affirmed 62 percent of the 571 cases it adjudicated. That percentage, he maintains, is not far removed from the American affirmative rate of 80 percent. The latter figure is obtained by tendentious downsizing of �only 89 percent.�11 Even with a percentage difference of 18 instead of 27 between the American and Rota rates, the U.S. tribunals in 1991 granted at least 20,000 annulments that probably would not have withstood Rota scrutiny. Peters would find it instructive to examine Mendonca's data more closely. In the three-year period he chose, the Rota overturned nearly 80 percent of the American decrees of nullity it reviewed. He might also have looked into two surveys by American canonist William A. Varvaro, showing that during the 1980s the Rota, deliberating on U.S. annulments granted on psychological grounds, reversed over 90 percent of them.12 Incredibly, the Rota's denial rate and the U.S. affirmative rate nearly matched.
In 1991 America's First Instance tribunals spewed forth 61,950 decrees of nullity, while the rest of the Catholic world could manage only 15,283.13 Thus, the United States, with approximately 6 percent of the world's Catholics, was responsible for about 80 percent of the annulments granted by the Church universal. The staggering disproportion was not a onetime phenomenon. It existed before 1991 and has changed little since. Peters considers citing this lopsided disparity the �shallowest of all tribunal criticisms.� His flippant riposte: �So what? America functions. Much of the rest of the world does not.� This is more selfserving canonical jingoism than statistical analysis. Based on what has happened to U.S. annulments reviewed by the Rota since 1980, the American tribunal system malfunctions. Waxing statistical, Peters justifies the disparity by stating that the U.S. accounts for 100 percent of astronauts put on the moon, and that Italy, with 5 percent of the world's Catholics, contributes 70 percent of the Roman Rota's caseload. Supposedly such statistics neutralize criticism of America's inordinately high contribution to the world annulment tally. They do nothing of the sort.
Holding space exploration up to the adjudication of petitions for nullity does not even qualify as an apples versus oranges comparison. Moreover, the reason for the high percentage of Italian cases adjudicated by the Rota is that the Rota often serves as the 2nd Instance tribunal for cases appealed from Italy's 1st Instance tribunals. In that capacity it ratifies or retries annulments granted or denied by Italy's diocesan tribunals. Peters elects to make his point in terms of percentages, thus eliding over the magnitude of the numbers. The Rota annually adjudicates about 200 cases, a figure that does not even come close to the number of ordinary process annulments granted yearly at 1st Instance by many individual American dioceses, including some of modest size.
The other prong of Peters' defense rests on C. 1095, perhaps the most problemridden and abused canon in Church history. As implemented by U.S. tribunals, it serves as a handy, allpurpose instrument for the wholesale nullification of marriages on grounds of defective consent. American tribunals output of ordinary process decrees of nullity averages about 38,000 a year, with 98 percent of such decrees based on purportedly defective consent. Since confusion surrounding C. 1095 abounds, instead of summarizing or paraphrasing the statute, it is quoted here in its entirety:
The following are incapable of contracting marriage:
1. those who lack sufficient use of reason;
2. those who suffer from a grave lack of discretionary judgment concerning the essential matrimonial rights and obligations to be mutually given and accepted;
3. those who, because of causes of a psychological nature are unable to assume the essential obligations of marriage.
The canon does not really break with the past. Each of these psychological grounds was used to annul marriages under the 1917 code. Each goes to the heart of what makes a valid marriage the proper exchange of consent. All three differ from impediments which preclude eligibility to offer proper consent under Church auspices. Annulments based on C. 10951 are rare. Nearly all defective consent annulments derive from the canon's other two subsections. Thanks largely to reliance on selective Rotal jurisprudence, failure to heed papal instructions, and dubious psychological premises C. 10942,3 have been transmuted into the leading grounds for annulment in the U.S., in other Englishspeaking countries, and in Western Europe.
The canon's second and third sections, unfortunately, do not exemplify brightline draftsmanship. They must be interpreted in the context of prior Church teaching on the permanence and indissolubility of marriage.
The pope himself concedes their need of further juridical, behavioral, and psychological specificity. In terms of traditional Church teaching, it should be selfevident that both sections presuppose minimalism in their proper application to specific cases. Some lack of discretionary judgment will not do. Nor will limited ability to assume the marriage's essential obligationspermanence, fidelity, and openness to children. Immaturity, a favored annulment tool of American tribunals, must be gross, chronic, and operative when consent is exchanged. John Paul II, in his 1987 and 1988 allocutions to the Rota, significantly clarified and narrowed the reach of the canon's second and third sections. He specified that both grounds are predicated on the existence of a serious psychopathology. Elsewhere I treat in considerable depth the many factors that inform current misuse of C. 1095 and psychology by U.S. tribunals to nullify marriages.14 For the purpose at hand, I will settle for examining Peters' claims in the context of this particular instruction from the Holy Father.
Peters writes that petitions for nullity are usually initiated during interviews with pastors. Additional screening occurs during intake at the tribunal office. The tribunal might inform pastors and prospective petitioners that there are factors likely to prevent an affirmative decision. Factors that dispose the tribunal to accept or reject C. 1095 cases are not designated. Peters, however, seems confident that weak petitions are effectively weeded out before they receive the tribunal's full attention. His trust is based on hunch and discussions with pastors and their staffs. No hard data are cited.
This sanguine portrayal of the selection process can easily lull the uninformed into believing that nearly all unworthy petitions are kept from presentation to tribunal judges, and that those slipping through intake will be duly rejected by the judges. That may well be true of documentary process cases, but separating the wheat from the chaff in the selection of ordinary process petitions is much more complicated. First of all, precious few pastors and tribunal personnel are trained in psychiatry or clinical psychology. Absent any hard evidence for mental disorder, such as a clinical record or commitment to a mental hospital, tribunalists in general must strain to venture even a tentative diagnosis of the requisite serious psychopathology which might signify lack of due discretion or inability to assume the essential obligations of marriage.
At intake, the prospective petitioner's narrative account of the marriage and its breakdown is usually the principal source of what might be loosely called evidence. To be sure, rehearsal of the courtship and eventual marital breakup might attest to or hint at the presence of a serious mental disorder. But in the vast majority of cases at this phase of the intake process probable cause for a defective consent annulment is likely to be more hypothetical than evidentiary. Whether cases that pass muster at intake result in fullblown ordinary process trials ultimately depends on tribunal judges. Their decisions, it is important to note, are based on much the same information available to those who did the initial screening. It is for them to determine whether to proceed with cases that are supposed to hinge on establishment of a grave psychological anomaly. This responsibility is made all the more difficult by the fact that ordinarily tribunal psychological �experts� do not examine the parties until after the case is accepted for trial. Nor is there any effort until then to solicit possible counterevidence and conflicting testimony from the respondent and �hostile� witnesses.
Peters' trust in those who screen petitions in his bailiwick is consistent with data on their performance. Canon Law Society of America statistics indicate that they are well-nigh infallible in identifying cases that merit presentation to the judges. In 1991, his year of choice, the Diocese of San Diego's tribunal judges accepted every last one of the 334 cases presented. From 1990 through 1994 1,573 petitions were presented to the San Diego tribunal and 1,573 were accepted. Even when allowance is made for the near automatic acceptance of documentary process petitions, the extraordinarily high acceptance rate beggars credulity. If, as is likely, approximately twothirds of the petitions accepted were ordinary process C. 1095 cases, the tribunal's intake personnel were blessed with clinical prescience that would induce envy among seasoned psychiatrists. Clinicians with a modicum of humility will openly acknowledge the uncertainties that inhere in diagnosing mental disorders.
In fairness to the San Diego tribunal, no fewer than 56 other tribunals of 168 submitting data to the CLSA in 1991 reported similarly perfect concurrence between cases presented and cases accepted. Others just missed perfection by a handful of cases. In the aggregate, tribunals reported accepting 43,939 of 48,492 (90.6 percent) cases presented.15 On the other hand, in 1991 there were six tribunals that accepted less than 50 percent and others whose acceptance rate was appreciably lower than 100 percent.16 The variation in acceptance rates cannot be fully explained in terms of demographic and staffing differences. Brooklyn and New York are contiguous, yet the New York tribunal accepted all cases presented, while its neighbor tribunal's acceptance rate was 30 percent lower. Peoria's low acceptance rate cannot be attributed to a personnel shortage. It was and is one of the beststaffed tribunals in the country.
Theoretically, of course, acceptance of all petitions presented might be due to remarkable powers of psychological discernment possessed by tribunal staffers. But it might also stem from a presumption that the right to petition for an annulment subsumes a correlative right to have one's case adjudicated, no matter whether cases are ordinary or documentary process. It is conceivable that petitioners for defective consent annulments in many dioceses are more prone to serious mental illness than their counterparts elsewhere, and significantly more disposed toward mental disorder than Catholics overall and the general population. None of many studies on the epidemiology of mental problems, however, reports the existence of such patterns of psychological morbidity. Variations in acceptance rates from one diocese to another probably shows that the tribunals do not share a common vision on what constitutes valid marriage and justiciable cases. Finally, perhaps the most plausible explanation for high acceptance rates might be found in a veteran priest's observation that �the tribunals are out looking for business.� Given the outreach efforts of many tribunals, his remark might be closer to the mark than any other explanation of the phenomenon.
The ordinary process selection problem pales in comparison to the challenges posed by adjudication. Defective consent is far more difficult to prove than most American canonists admit. The tribunal must determine here and now, sometimes decades after the nuptials, the mental state of either or both spouses when the marriage was contracted. That requires a psychohistorical investigation that would put learned psychiatrists and clinical psychologists to stern test. Such professionals, however, are beyond the budgetary reach of most tribunals. As a result, tribunals often depend on lowerlevel helping professionals, such as social workers and counselors, for psychological expertise. Not infrequently judicial vicars in smaller dioceses sometimes act as both judge and psychological expert.
Accordingly, psychological input is often superficial, juridically irrelevant, and unprofessional. The Rota has complained of instances when neither party to a defective consent annulment was directly examined by the expert. In one case the expert, besides failing to conduct personal examinations of the parties, did not bother to read the case file. The diagnosis was culled from a telephone interview with a member of the tribunal. Some of my subjects recalled examinations of very short duration that simply rehashed material previously provided by filling out the tribunal's questionnaire. There are also reports of �experts� functioning more as advocates than detached, objective clinicians. In one notable case, a contentious respondent was deemed paranoid by two experts because of his unwavering belief in the permanence and indissolubility of marriage. When confronted with such irregularities, the standard response of U.S. canonists is that they are isolated atypical cases. My interviews with parties to annulment Rota decisions on American cases indicate that they are fairly routine.
Apologists for the American approach to annulment habitually refer to advances in behavioral science that enable tribunals to gauge the quality of marital consent. A recent example is provided by Msgr. Francis J. Maniscalco, Communications Director for the U.S. Catholic Conference, who states that during the �last 30 years, the insights of psychology ... have increased our understanding of human nature and contributed to the application of the traditional grounds for an annulment. These insights were accepted very cautiously and through a combination of theoretical research and actual practice in which they were tested in church tribunals in individual cases.�17 What this statement and others like it share is a singular failure to identify advances and insights that might lend credibility to what is trumpeted. And with good reason. Insights, for one thing, are in the realm of educated guesses. They may be provocative, stimulating further research, but they are not scientific principles. Many of Freud's insights, such as those related to the death wish, no longer enjoy wide acceptance.
An extensive search of the English literature on annulment does not unearth a single citation of a bona fide psychological advance or insight that bears directly on the dynamics of marital consent. Similarly missing is a solitary discourse showing precisely how any particular advance or insight, such as recent developments in cognitive psychology and molecular biology, enables tribunals to determine that consent is defective. In general, the psychology cited is more germane to marriage counseling and successful marriage than adjudication of petitions for ordinary process annulment based on C. 1095. Nor is there any published research showing how insights and advances have been tested in the field. In effect, we are asked to accept on faith assertions by tribunalists that their use of psychology works like a charm. Behavioral science does not develop by fiat. Furthermore, among behavioral scientists it is axiomatic that inhouse evaluations without peer review and replication by others tend to be notoriously unreliable and tendentious. The only semblance of independent external review of tribunal psychologizing has been conducted by the Rota. As previously shown, U.S. ordinary process annulments do not fare well before that tribunal. By and large, tribunal statements on the pathbreaking value of nameless psychological insights and advances embody more pretentiousness than would be found among the anonymous behavioral scientists who supposedly formulated the insights and advances.
Annulling marriages under an ostensibly scientific mantra is a means of placating Church officials and lay Catholics alarmed by the volume of annulments. What better extralegal means to underscore the legitimacy of tribunal decisions to annul than by claiming scientific as well as canonical authenticity. But more often than not the science employed by tribunals is of the "junk" variety. Anyone with a modicum of familiarity with the canons of behavioral science knows full well that assertions dealing with the psychological basis for decrees of nullity must be taken with a generous dose of sodium chloride. Nevertheless, tribunal system personnel rarely publicize doubts about how psychology is employed in ordinary process cases. To a remarkable degree, psychology is regarded as a magical elixir that generates boundless confidence in the belief that they are doing the Lord's work by "healing" the victims of "bad" marriages. The near absence of doubt is manifested in the high percentage of affirmative decisions at 1st Instance, and the even higher percentage of ratifications at 2nd Instance. Doubt does not figure prominently in tribunal lexicon and practice, unless it relates to validity. Indeed, if C. 1095 is the most abused canon in the code, C. 1060 is close behind. The latter stipulates that "Marriage enjoys the favor of the law. Consequently, in doubt the validity of a marriage must be upheld until the contrary is proven." American tribunals have effectively stood this statute on its head. There is simply no gainsaying the fact that once a petition for annulment is accepted for trial little effort is spared to find a way to annul.
What usually ensues is a fishing expedition for social and psychological material that might be cobbled into an invalid consent decree of nullity. This is seen quite graphically in the questionnaires many tribunals use to elicit information from petitioners and respondents. Much of the material has little or no discernible bearing on determining the validity of marital consent. Divorce itself and any psychological and behavioral oddities, no matter how benign or commonplace, suffice for most U.S. tribunals to build a case for nullity. If anything construed as a psychological problem surfaced after the marriage was contracted, it will be assumedusually gratuitouslythat the problem was incipient prior to the marriage. It will then be further assumed, still more gratuitously, that a predisposition to substance abuse was somehow operative when consent was exchanged, rendering the party (or parties) incapable of the communion of life and love that is supposedly essential to valid marriage. Besides exemplifying "junk science" in action, this approach glosses over the fact that other spouses with the same "disorders" remain in their marriages, never to appear on the tribunal doorstep as candidates for decrees of nullity.
Peters likens the percentage of affirmative decisions on petitions accepted to a similarly high conviction rate in American municipal courts. The juxtaposition is woefully inapt and simplistic. The prosecution of misdemeanors is infinitely more clearcut than determining the validity of marital consent. Even in this age of global victimization and diminished responsibility, defendants in municipal court proceedings seldom enter a plea resembling lack of due competence or inability to adhere to the law they allegedly violated. A more fitting comparison would be the outcome of insanity pleas held against the results of C. 1095 petitions for nullity. Less than two percent of all criminal cases in the U. S. turn on the outcome of an insanity plea or diminished responsibility. If American tribunals scrupulously adhered to interpretations of C. 1095 by the Holy Father and the Rota, the percentage of psychological annulments decreed by ordinary process would approximate the percentage of successful insanity pleas by defendants in criminal proceedings.
Peters, a doctor of canon law and a civil lawyer as well, serves as a top administrator and appellate judge in a major diocesan tribunal. Impressive credentials, indeed. His rebuttal of criticism of the volume of annulments decreed by U.S. tribunals probably elicited hosannas from most American tribunalists who read it. But his brief would not even begin to sway a jury composed of the pope, Rotalists, and behavioral scientists. Such a panel would immediately see through the glib and injudicious use of data and the importance ascribed to procedures. But the case would not be lost simply because of the arguments and evidence adduced. More fundamentally, his argument would come up short because he attempts to defend what is in large measure indefensible. Whether statistical, anecdotal, psychological, or jurisprudential, the evidence counter to his position is overwhelming. It is simply beyond dispute that U.S. tribunals have used spurious findings of defective consent to annul tens of thousands of marriages. For an entire generation they have engaged in the profanation of Christian marriage on a grand scale.
1 "Annulments in America." Homiletic & Pastoral Review, pp. 5866.
2 A somewhat more sophisticated but no more compelling statistical defense is found in James H. Provost. "The Volume of Cases in United States Tribunals: A Canonical Reflection." The Jurist 55 (1995): 38194.
3 The figures appear in the Vatican's Statistical Yearbook of the Church for 1991.
4 The italicized "a" is mine.
5 Occasionally collegiate panels would be convened for "difficult cases," such as marriages of long duration.
6 See C. 1425, 1 1.
7 C. 1425, 4.
8 Italics added.
9 Statistical Yearbook of the Church, 1980.
10 Data are not available for 1985.
11 Included in Peters' base for calculating the lower percentage are cases dropped because of �abandonment� (by petitioners) and "peremption" (by tribunals). Unless later refiled, such cases are not tried. Enlarging the base in this fashion lowers the percentage of petitions resulting in nullity.
12 W. A. Varvaro. "Rotal Jurisprudence 19851990." Canon Law Society of America Proceedings, 1992. (1993): 156166; and "Trends in Rotal Jurisprudence: Surveying U.S.A. Cases (19801985)." Canon Law Society of America Proceedings, 1990.(1991): 1962. Unpublished surveys by Clarence J. Hettinger that go up to 1992 report practically identical results.
13 Unless otherwise specified, all annulment figures herein are taken from the Vatican's Statistical Yearbook of the Church. Annulment data published by the Canon Law Society of America are practically useless for research on the incidence of annulment. Not all dioceses submit data and the CLSA's annual statistical summaries do not reveal the number of annulments granted.
14 R. H. Vasoli. Tearing Asunder: Annulment American Style, forthcoming from Oxford University Press.
15 All figures here are tallies of statistical summaries appearing in the Canon Law Society of America Proceedings, 1992., pp. 253267. The totals for "Cases Presented" and "Cases Accepted" understate the amount of tribunal activity. In any given recent year about 20 tribunals, including some serving archdioceses, do not forward data to CLSA. Also, some of those listed provide data for only one of the two statistical categories.
16 In 1991 Alexandria, Brownsville, Camden, Kalamazoo, Lafayette (Ind.), and Peoria were the tribunals.
17 Quoted in the Detroit News, June 15, 1997.
Dr Robert H. Vasoli is a retired professor of sociology at the University of Notre Dame. He was on the university's faculty from 1963 to 1991, specializing in criminal justice, the sociology of law, and social psychology. Being a respondent in a case leading to a decree of nullity (later overturned by the Roman Rota) led to eleven years of research on the U.S. tribunal system. A forthcoming book on that system will be published soon by Oxford University Press.
Reprinted with Permission by the HOMILETIC & PASTORAL REVIEW