“Validity” and “Liceity” in Conjugal Acts: A Reply to Stephen Napier on the HIV-Condom Debate

Abstract

Stephen Napier has argued against the soundness of what he calls the “Canon-Law argument” against the moral permissibility of a couple employing a condom for the sake of one spouse avoiding the contraction of HIV from the other spouse. Without an attempt to provide a full defense of the Canon-Law argument per se, this paper argues that Napier has not shown that argument to be inadequate. Napier's critique of that argument suffers from unsubstantiated counterexamples and from a failure to take into account analogous senses of “procreative end” in reference to the conjugal act. Using magisterial documents and canonical sources, this paper suggests that the distinction between validity and liceity can be usefully applied to conjugal acts.

Lay Summary: Stephen Napier has argued in favor of the claim that there is no plausible argument for thinking that married couples who use a condom in order to prevent HIV transmission are necessarily doing something morally wrong. In responding to Napier by showing that his arguments in favor of his claim are inconclusive, this article introduces a distinction, frequently used in sacramental theology, between validity and liceity (lawfulness) and applies this distinction to marital actions. I argue that some modifications to martial actions make them merely unlawful, whereas other modifications—such as using an intact condom—make them both unlawful and “invalid.”