Lady Chatterley's Lover

(T.G. John, Advocate, Trichur)

One of the most important teachings of the early Christian fathers was that sex was sinful and it was better to marry than to be consumed with lust. A glorification of virginity resulted in chastity being virtually identified with absolute celibacy. And yet only 700 years ago Saint Thomas Aquinas did permit pre-marital intercourse between those who were formally betrothed - on the understanding that they would not desert afterwards.

This sexual attitude lasted well past Shakespeare's day and is precisely the morality which some have adopted today. The great hardening of this Western attitude-apart from a temporary rigour under Cromwell when adultery was made a capital offence-came when the Victorian middle classes set the moral tone in English society.

Some civilizations - among the Asians as well as the Eskimos -frown heavily on adultery, but offer the company of a host's wife to an over-night guest because they do not believe that it impairs anyone's chastity. In other communities unlimited sexual intercourse is permitted as most natural to young people before marriage and strict monogamy expected afterwards.

Are ideals of continence and virginity to be permanently abandoned in a long orgy of sexual licence -or are they merely cast up for re-examination, new thinking and responsible decisions on accepted morality?

It could have been only against such a background of diverse moral notions existing in different parts of the globe that two diverse judicial pronouncements were made, one in England and the other in India regarding a common issue:

"Whether the controversial novel 'Lady Chatterley's Lover' literary masterpiece of the celebrated author D.H. Lawrence - is obscene literature or not."

The novel earned a general reprieve in the Central Criminal Court in London in November 1960 when it was held that to read of the exploits of Constance (Lady Chatterley) would not 'deprave and corrupt' the reader. The contention of the prosecution that the book commended sensuality' almost as a virtue' was rejected. In May 1961, the Additional Chief Presidency Magistrate of Bombay held that the book is obscene, in an eighteen page judgment in a case in which four partners of a bookstall in South Bombay were charged for having been in possession of unexpurgated copies of the novel.

It is not my purpose to criticise these judgments but some considerations mainly pertaining to literary criticism might be advanced. It is difficult to say where frank literature ends and pornography begins. In the controversial novel we come across intimate descriptions of about a dozen sexual intercourses in the minutest detail where the heroine Constance (Lady Chatterley) commits adultery with their game-keeper. The book by itself is said to be a satire on the upper class aristocracy. Nevertheless, its potentiality as one of the best literary pieces of the present era could not be underrated.

What is pornography? A serious attempt has been made in America to distinguish between acceptable books which contain passages of erotic realism and sheer pornography which sets out simply to titillate. The stream of smut books in France makes no attempt to describe life as it is really lived, even in the most depraved circumstances. Its chief feature is its deliberate unreality. Psychiatrists analysing the structure of such stories find the writers deliberately seizing on our strongest taboos, religious and otherwise. They detect wishful thinking, an exaggerated revolt against all the social rules of sex. In the American analysis' Pornography and the Law' by Dr. Eberhard the two categories of books appear quite unmistakably different - the one true to life and the other full of sex - fantasy and Freudian Nightmare. But the law still makes no clear distinction between these two classes of writings. Both types tend to be lumped together.

Coming back to that amiable young lady, Lady C, many famous books of the past are open to the objection now advanced against the novel of D.H. Lawrence. The 'Memoirs of Casanova' and even 'Candide' of Voltaire and some of Anatole France's novels are, a Puritan would say, tarred with the same brush. Yet no liberal education could be complete without these books. The very task of regulating literature is repugnant to the far-ranging human spirit; it is clearly inadmissible that Authority should be entrusted with the task of regulating literature. To crib, cabin and confine literature is clearly inadvisable.

The arms of Law, are very long; but then let Her Majesty, the Law think twice before it touches the sanctum - sanctorum of the Goddess of Literature.

On War Crimes

(T.G. John, Advocate, Trichur)

A war is on - a clash between Islamic fundamentalism and American oil-grabbism. Whatever may be the final outcome, after some years both the countries will rue the passing of the final hours in which both would have averted the war. As an inevitable sequel, there will be many prisoners of war, an economic fall-out on the developing countries and finally a dramatic trial of ‘war criminals’?

War crimes and trial of war criminals are not anything new in the history of mankind.

During the 1939-45 World War, it was estimated that the Germans killed twelve million people which the allied victors considered had made them responsible for the most appalling crime against humanity. For, these people were 'liquidated' by the most unimaginable methods. Total technological resources were called into play, Scientists, Engineers, Doctors, indeed a whole nation, in order to achieve this. At the Nuremberg trial of the twenty two major German war-criminals, a competent observer has emphasised that there was seldom a hint of contrition, on the contrary every effort was made to justify these deeds. There seemed no consciousness of responsibility and in fact given the chance 'they would go through it all again'.

The four charges were (1) the common plan or conspiracy (2) crimes against peace (3) war crimes (4) crimes against humanity. The first two charges were generally concerned with the planning and waging of wars of aggression in violation of international treaties. Charges three and four concerned systematic murder, torture and forced labour, death marches, gas chambers, crematoria, concentration camps etc. At many of the concentration camps, the motto of the action groups was "He*who enters this camp shall leave it only by the chimney of the crematorium!' Four million people were exterminated at Auschwitz camp; one and a half million at the Majdenek concentration camp. Entire villages were shot or burned alive. Thousands of tons of fertilizers were made from the crushed bones of the burnt corpses.

In Hitler's presence doubt, questions and anxieties dissolved before the simplicity of his actions, that primal simplicity of destruction and annihilation. He followed a course which brought him to the summit of power and an even more helpless dependence. In the war years skulking in deep retreat and in the early march with Hindenberg, one of the first to run. And at the end, in the Berlin bunker not even Germany meant anything to him! Only death, destruction, the whole world in flames and the saving of his own ego. 'Having known men, I prefer dogs!' said Hitler near the end. Of the thousands who took part in the Jewish massacres, very few have been tried; in fact the great majority of technicians, medical experts etc. who had taken part in the extermination programme have simply vanished, let alone be tried. It is said that the German firm of Tesch and Stabenow from Hamburg made a gross profit of 1,28,000 marks in 1943 for the supply of Cyclone B. Gas. 'My conscience is the Fuhrer', Goring had said, General Ohlendroff, in charge of the Ukranian massacres had predicted 'The future would find my firing squads as efficient as the press-button killers of the atom bomb'.

Though lacking the technological implementation of the Germans that resulted in the extermination of millions of human beings the Japanese war crimes were unsurpassed in sheer horror, brutality, ferocity and blood carnage. The path of the invading Japanese army was one of humiliation, degradation, sadism, rape regardless of age or sex, prisoner of war or civilian.

As with the Germans, these war crimes were backed by a certain and indeed very similar ideology, and were quite purposefully planned by those at the top. The leaders were convinced of and preparing for Japan's divine mission to rule the world. Methods used during the war in China which dragged on throughout the 30's were a foretaste of things to come. The climax was reached with the "Rape of Nanking" in 1937. Within three days of its occupation by Japanese tropps, 12000 men, women and children had been slaughtered. Rape was the order of the day. The gutters streamed with blood and the streets were strewn with mutilated corpses. Twenty thousand men were marched outside the city walls, machine-gunned and bayonetted. Another 30000 were lined up of the Yangtse and machine-gunned.

Regarding the treatment of POWs during the 1939-45 war, the Japanese were still signatories to the Hague Convention of 1907 which quite unambiguously lays down a minimum of human decency to which such captured troops are entitled. But just as Germany's paganism proved far stronger than its X'tianity, the deep seated national-religious currents prevalent in Japan, proved far stronger than the Hague Convention. To construct the Burma-Siam Railway the lives of 42000 coolies and 16000 POWs were sacrificed. The hellish conditions were reminiscent of the German Concentration Camps in their last stages. Thousands of living skeletons putrefying with rampant tropical disease and ulcers that stripped the flesh from knee to ankle almost naked, were made to work or starve.

For whom are the bells tolling every New Year? About half a century has rolled away after the last great war. Outside on the international scene, we hear the din of the charging youth and angry young men who swear that the old order should change and yield peace to new. But what is the change-except L.S.D. visions and skirts that are going up and down-mini and maxi? The major crimes of humanity are the same and continue with added velocity. The old Neros and Hitlers atleast stopped fiddling when Rome and Berlin burnt down, but modern leaders with dictatorial leanings continue fiddling even after the event!

An Epistle from Charles Dickens

(T.G. John, Advocate, Trichur)

“Base and shameful England! There is no justice in this country”

The words rang like a clear bell and the packed Court hall of Old Bailey which had witnessed many a criminal trial swayed a hit at the electrifying statement which came from the slender woman dressed, severely in black satin standing in the dock. On the Bench Mr. Justice Cressel (who pronounced the death sentence on this woman) squirmed restlessly.

"I tell you, my lord", she continued "this verdict the jury has returned will rest on their consciences hereafter. I am not treated like a Christian but like a wild beast of the forest."

She was still shouting when the Judge pronounced the death sentence.

England-1849...It was the same old story of two men and a woman; a saga that had trailed humanity ever since Adam had tasted the forbidden fruit. The prisoner in the dock was Maria De Reuxa Swiss maid employed by the Duches of Sutherland. She was indicted for the murder of Pat O' Connor, an Irishman. The meeting of Maria and Pat had ripened into friendship and with the relentless arrows of Cupid, the friendship ripened into something else. But for Patrick O' Connor, the Swiss lady meant business and business meant marriage. In a fit of pique and to cure a growing sense of frustration she switched her continental charms from Pat O' Connor to one Fred Manning and they became man and wife at St. James Church, Piccadilly. Manning was a railway guard; but subsequently he was out of employment and also turned out to be a pauper. And then 'ideas' began to take shape! Together they invited Pat O'Connor. Maria's old flame. And when Pat came he had a wad of securities with him as good as spot cash. A crow-bar, a shovel and some quicklime did the rest of the business. Pat O' Connor was murdered and his body was buried in the scullery of the house of Fred. Fred Manning sold the first batch of securities for 110 and when Fred returned with the second batch unsold, Maria knew that the police was on their trial. And when the next day Fred returned after his ramblings Maria was gone with everything worth taking! Left on his own Fred also panicked and hurriedly he caught the boat train to Jersey.

Meanwhile all Britain was looking for Fred and his wife. Detectives trying to trace the missing Irishman had found Manning's home deserted. Their search ended when they dug up some freshly cemented flagstones in the scullery. They found the late Mr. O' Connor very dusty with quicklime and minus his clothes. Maria was arrested in Scotland trying to dispose of some railway bonds.

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The aforesaid outburst of Maria, the woman who donned black satin, during the course of her trial earned her a great gathering for the public hanging. Ten thousand Londoners watched the slim woman in black satin keeping her appointment with the hangman!

In the crowd that watched was Charles Dickens, the immortal English novelist. He had no liking for what he saw and wrote a seething letter to the press. That letter started an outcry that twenty years later, resulted in the abolition of public hangings.

The End of an Era

(T.G. John, Advocate, Thrissur)

In July last, Thurgood Marshall, the only Afro-American ever to serve as a justice of the U.S. Supreme Court gave up the seat he had held since 1967. He was approaching his eighty third birthday.

Thurgood Marshall was the only member of the U.S. Supreme Court who knew how it felt to be called a 'nigger'. In the 1940's and 1950's when he roamed the Court rooms of the South as Chief Counsel for the Legal Defense Fund for the advancement of coloured people, Marshall suffered all the indignities of segregation. He once told a Judge in North Carolina he had eaten the same meal in the same restaurant where the Judge dined the night before, with one difference. "You had yours in the dining room" said Marshall", I had mine in the kitchen".

Very little about the law was abstract to Marshall He not only suffered its worst failure, the long reign of legal segregation, but he was also the architect of one of its greatest triumphs. He was the victorious attorney in Brown v. Board of Education, the 1954 landmark decision prohibiting racial segregation in public schools. As a judge, Marshall helped to change American law. As a civil right lawyer he changed America. In 1967, when Lyndon Johnson chose him as the first ‘black’ Supreme Court Justice, Marshall was a man resolved to continue the revolution he had helped to set in motion.

Thurgood Marshall was born in Baltimore, Maryland in 1908 when the city was segregated, as any in the deep South. Because the University of Maryland law barred blacks, Marshall gave up hope of attending there. He went instead to the all-black law school of Howard University which in the 1930's was being transformed into a training ground for lawyers who could challenge segregation in the courts. After graduation Marshall worked as a lawyer. One of his first major cases forced the integration of the same University of Maryland law school which he was unable to attend. As he travelled through the South, Marshall was routinely threatened. More than once he found himself facing a white racist with a gun. Undaunted, Marshall and his team of lawyers laid the legal groundwork" for the celebrated case Brown v. Board of Education. Marshall convinced the court that the 14th amendment of the American Constitution would not allow segregation. His problem was the Court's long-held view that separate but equal facilities were constitutional. But Marshall convinced the Court that there was no such thing as equality in a system of separation and that the very act of separation stigmatised individuals.

It was due to failing health that Thurgood Marshall retired at the age of 83. His last words from the Bench were a stinging rebuke to the court's conservative majority. His dissenting judgment in a 6 to 3 decision was like thunder: 'Power, not reason, is the new currency of this Court's decision making...... Cast aside today are those condemned to face society's ultimate penalty. Tomorrow's victims may be minorities, women or the indigent'.

Mental Insanity and Nullity of Marriage According to

Church Jurisprudence

(Fr. Joseph Vadakumcherry, Archdiocesan Tribunal, Ernakulam)

For Christians marriage is a covenant by which the spouses establish between themselves a partnership of their whole life and which of its own very nature is ordered to the well-being of the spouses and to the procreation and upbringing of children. A marriage is brought into being by the lawfully manifested consent of the spouses who are legally capable, and the matrimonial consent is an act of the will by which the spouses by an irrevocable covenant mutually give and accept one another for the purpose of establishing a marriage. No human power can replace this matrimonial consent (CIC, Can. 1055, 1057; CCEO, Can. 776, 817). It follows that the bilateral consent of the spouses is the efficient cause of the marriage covenant, which, were it be deficient, cannot be supplied by any human authority.

Those who lack sufficient use of reason, and those who suffer from a grave lack of discretionary judgment concerning the essential rights and obligations to be mutually given and accepted, are incapable of contracting a valid marriage (CIC, Can. 1095; CCEO, Can. 818). This Canon refers to the unique mental capacity of the contractants, or the so called mental discretion, which is required for eliciting a valid marriage consent. The due mental discretion embraces all the powers of the mind and soul, namely, the cognitive, reasoning, deliberative, and volitional faculties, and the freedom of choice, which make up the deliberate, mature, and free human act of marriage consent.

Analysing the process of development of the act of marital consent we can see that the cognitive faculty supplies the basic intellectual knowledge about marriage that 'it is a permanent life-partnership between a man and a woman ordered to the procreation of progeny through some form of sexual cooperation'. It is presumed bylaw that one who has attained the age of puberty knows at least so much about marriage (CIC, Can. 1096; CCEO, Can. 819). Given that the contractant person knows this, he should, by making use of his reasoning and deliberative faculties, be able to combine reasoned judgments and deduce others from them. That means he will have to figure out the implications of the decision he is going to take so that he can bind himself to the same. This power of weighing the pros and cons and the implications thereof is called the deliberative, or appreciative, or critical faculty.

In the case of marriage consent the critical faculty makes the process of judgment mature by weighing the pros and cons and the essential basic implications of the marriage covenant. When the intellect has prepared the ground for the marital consent by way of a speculative judgment, the will, endowed with the freedom of choice gives forth the consensual act of marriage by way of a practical decision. Since the marriage covenant is a serious contract which involves life-long commitment, in order to enter it validly, a greater degree of discretion is required than would be necessary to consent to some action which only concerns the present. Hence the spouses must have that mental capacity to make a deliberate, mature, and free practical decision as to choose something as serious as marriage. This is the minimum standard of the mental discretion required for eliciting a valid marriage consent.

Lack of due discretion is strictly a consensual defect, i.e., the person does not realise adequately what the marriage covenant means and what it entails, in other words, the seriousness of the marriage contract. Hence the invalidity of a marriage on the grounds of lack of due discretion can be established only if at the time of the marriage the contractant was unable or incompetent the negotiate the matter of a real marriage.

Any substantial impairment in the functioning of the intellect or the will results in mental illness or insanity. In fact, mental illness or grave psychic disorders can deprive the patient of that mental discretion required for a valid marriage consent. The main categories of mental disorders are Psychoisis, Neurosis, and Psychopathy or Personality Disorders. Of these, Psychosis is generally wont to eliminate the discretion-airy power of the mind. Psychosis is distinguished into three types, namely, Schizophrenia, Manic-depressive, and Paranoide. The characteristic of any Psychosis is to disturb the coordinated functioning of the intellect, the will, and the affect, whereby to cause mental disequilibrium in the patient. Consequently the patient gradually estranges himself from reality and withdraws into his own imaginary world, thus falling victim to delusions and hallucinations. The basic mental disturbance is manifested in the maladjustment or incoherence of the patient with the environment.

The foremost among the Psychotic disorders, which eliminate the mental discretion, is Schizophrenia. By the onset of Schizophrenia there begins the process of a break-up of that correlativity which exists between the functioning of the intellect, the will, and the affect. The dissociated functioning of the intellect, the will and the affect tends to produce such disorders like 'apathy' (absence of affect whereby want of feeling), 'abulia' (absence of will power which implies that the individual has a desire to do something but the desire is without power or energy), 'ambivalence' (coexistence of antithetic emotions, attitudes, ideas or wishes towards a given object or situation), and 'autism' (subjective way of thinking which implies that the matter of thought is derived from the subject himself and appears in the form of daydreams, phantasies, delusions, hallucinations etc.). On the basis of accentuated manifestation of symptoms, Schizophrenia is distinguished as 'Simple', 'Hebephrenic', 'Catatonic', and 'Paranoide'.

Schizophrenia develops slowly and insidiously over a long period of months or years passing through three consecutive stages, called 'initial or oid\'sympomatic or qualified', and' terminal'. It is to be noted that not all cases of Schizophrenia cover all the three phases during its development. The initial stage (Schizoid) does not affect adversely and impair yet the mental faculties. By the onset of the qualified stage, even if symptoms are not conspicuously manifest, the mental faculties are impaired and the patient is rendered incapable of making a mature judgment or decision. Hence if the marriage takes place at a period starting from the onset of the symptomatic qualified stage, even if during a lucid interval, the presumption is that the marriage consent would not be valid. The Rotal Judge, Sabattani, in a decision dated 14 June 1963, invokes the traditional Rotal Jurisprudence that 'if the insanity both antecedent and subsequent is verified (having had the episodes of mental illness before and after the marriage), the concomitant insanity (at the time of marriage) could be inferred according to the principle "probatis extremis et media praesumitur probata amentia". The same Judge in another decision has held that 'the fact of someone having held a public office or a career does not exclude a possible diagnosis of a Psychotic illness in the said individual.

The psychiatric insights into Psychotic anomalies today made available by the progress of science reveal that the impairment of the mental faculties takes place not in precise connection with the first episode, but rather when the malady reaches the symptomatic stage during the slow and insidious development of the same. Moreover, it is certain that an acute onset of symptoms must have necessarily been preluded by the less conspicuous symptoms anterior to the episode, which would have escaped the attention and notice of the close associates of the patient.

In almost all the marriage nullity cases we can see that the marriage had taken place when the symptoms were in recess either under the spell of medicine drugs, or during a lucid interval. Referring to such marriages a Rotal decision points out that 'nobody ever marries a mentally insane person (when the symptoms are active) unless he himself might be insane or has had a cunning motive in conducting the marriage. Hence in nullity cases introduced on the grounds of mental insanity, the Tribunal cannot simply rule out the fact of insanity for the reason that no external gross symptoms of the malady were manifested at the time of marriage, and therefore the Tribunal should undertake the difficult task of discerning whether the apparent sanity at the time of marriage was true to fact'.

Further, it is admitted by the Rotal Jurisprudence that' the kith and kin of a respondent would not easily expose the symptoms of mental illness manifested by him before the marriage!. Hence the Tribunal, in its bid to ascertain the antecedence of the mental illness in a given case has to take proper account of the above phenomenon while assessing the evidences being supplied by the witnesses through their depositions in the Tribunal. The Rotal Jurisprudence also holds that when a mental patient suffers from other diseases, the signs of the concomitant mental illness may not be easily discerned, but that it could be ascertained from the patient's aftermath behaviour.

The expert opinion of the psychiatrists could easily be availed of today in order to assess marriage cases introduced on the grounds of mental insanity, and hence Canon Law rules that the Church Tribunals shall seek the opinion of such experts in the matter (CIC, Can. 1680; CCEO, Can. 1366). The expert however is not supposed to pass any judgment on the merit of the case he has examined. His only duty is to bring home to the Tribunal his findings on the very nature (whether psychotic or any other kind) of the malady, its causes, period of onset, seriousness, probability of cure by psychotherapy, and finally the reasons for his expert reading about the psychic disorder. Then the Tribunal on its part should verify the evidences adduced by the expert and convert, those conclusions drawn up by the psychiatrist from the points of view of psychology and psychiatry, into juridical and formal conclusions on the given case of the psychic disorder.

According to the ruling of Canon Law (CIC, Can. 1608; CCEO, Can. 1291), the Eccl. Judge must have moral certainty about the merit of the case before the pronouncement of the judicial sentence. Pope Pius XII in an allocution to the Officials of the Apostolic Tribunal of the Roman Rota explains that moral certainty, which lies in between the two expremes of absolute certainty and quasi-certainty or mere probability, is characterised by the exclusion of well-founded or reasonable doubt. Sometimes moral certainty is derived only from an aggregate of indications and proofs which taken singly do not provide the foundation for true certitude, but which, when taken together, no longer leave room or any reasonable doubt on the part of a man of sound judgment, in which case, the moral certainty arises from the wise application of a principle which is absolutely secure and universally valid, namely, the principle of a sufficient reason. The Rotal Judge Grazioli in a decision says that when the subject is impotence or insanity where truth is often only available from the circumstantial evidences, a very great probability is equivalent to moral certitude, as opposed to infallible or absolute certitude which cannot and need not be had in such cases.