When the German journalist Peter Sewald recently asked Pope Benedict XVI whether the Catholic Church was “opposed in principle to the use of condoms,” the pope replied that under some circumstances the use of a condom could be a “first step” toward a “more human way of living sexuality.”

Some people interpreted this remark as applying only to male prostitutes (the example Benedict gave). So papal spokesman Federico Lombardi, SJ, asked the pope to clarify the scope of his statement. According to Lombardi, the pope’s words apply “if you’re a woman, a man, or a transsexual. We’re at the same point.”

What point is that, exactly? What sort of development of Catholic teaching, if any, do the pope’s words signal? In order to answer this, we’d need to ask the pope a third question: What should a married couple do if one spouse is infected with HIV? To see why this third question is so important, we must look closely at the topics addressed by the first two questions: homosexual sex and nonmarital heterosexual sex.

According to Catholic teaching, an act of homosexual sex is intrinsically wrong—and therefore always wrong. Is that all there is to say about it? No. The Catholic moral tradition teaches that an act is evaluated not only according to its object but also according to its end and circumstances. While circumstances can never make an intrinsically evil act morally acceptable, they can mitigate or exacerbate its wrongness. So using a condom to prevent an act of homosexual sex from infecting someone with HIV does not make the act good, but it does mitigate the evil of the act by lessening its possible harm to another person.

In the context of gay sex, for the pope to say that using a condom is a “first step” toward a better way of viewing human sexuality is entirely in keeping with traditional Catholic moral teaching. Not only is using a condom to prevent the transmission of HIV a mitigating circumstance, it is an important mitigating circumstance. To reduce the risk of grave harm is to reduce the relative injustice of the act. The pope is saying that taking steps to avoid infecting one’s sexual partner with HIV might lead one to consider how certain sexual acts might harm one’s partner and oneself in other ways—and thus provoke further reform.

But that isn’t the end of the story. We also need to consider a second question. It’s one thing for a confessor to tell a penitent that the use of a condom is a mitigating circumstance in an act of homosexual sex when there’s a high risk of transmitting HIV. It’s another thing entirely for international agencies to distribute condoms, or to promote their use in vulnerable populations. Such programs involve what Catholic moral theology calls the problem of “cooperation with evil.” Some worry that these programs will inevitably be misunderstood as suggesting that condom use makes a wrongful act right, or even that condom use makes a wrongful act safe.

There is a vigorous debate among Catholic moralists about how to understand cooperation with evil in such cases, which include not only condom distribution but also needle-exchange programs for drug addicts. Opponents worry that such efforts both contribute to wrongdoing and help spread disease by encouraging promiscuity or drug use. Supporters of condom distribution don’t think that lifelong voluntary abstinence by everyone infected with HIV is a likely prospect. Consequently, they think condom use can help contain the deadly infection, which kills not only promiscuous men but also women and their unborn children. They also think that the possibility of misinterpretation can be addressed with diligent education about a fully moral approach to human sexuality.

It does not seem to me that the pope’s comments bear decisively on the debate about cooperation with evil. On the one hand, he is obviously very concerned to protect people from a deadly disease. On the other hand, he worries that too much focus on condoms does not address the underlying problem of the “banalization of sexuality.” These are precisely the issues at stake in the debate.

The question of the use of condoms by heterosexuals raises a different and more confusing set of problems. The confusion stems from the fact that church teaching has traditionally placed two types of requirements on heterosexual sex—one based on intention and another based more narrowly on the structure of the sexual act itself.

The intention-based requirement says that one may never intend to separate the unitive and procreative goods in any sexual act. Here, the moral agents’ larger purposes are decisive. A couple who have sex while the woman is taking the birth-control pill in order to avoid pregnancy are acting immorally. But a couple who have sex while the woman takes the birth control pill in order to regulate a serious hormonal imbalance are not acting immorally, because they are not acting with a contraceptive intent. In this case, the aim of taking the pill is to correct a medical problem; the woman’s infertility during the sexual act is a foreseen but unintended consequence.

The structure-based requirement operates independently of the agents’ larger purposes. According to this requirement, a man must not intentionally ejaculate outside a woman’s vagina. In other words, every sexual act must be per se apt for reproduction. It is this requirement that renders the use of condoms in heterosexual sex problematic. Even if one’s intention in using the condom is to prevent disease rather than pregnancy, the physical barrier imposed by the condom means the sexual act will not be per se apt for reproduction.

Both the intention-based requirement and the structure-based requirement have traditionally been used to identify aggravating circumstances—that is, circumstances that make an already immoral action worse. So traditional Catholic moral theologians would say that it is worse for an unmarried heterosexual couple to use contraceptives for birth control than to have uncontracepted sex, because the contraceptive motive vitiates the act. They would also say that it is worse for an unmarried couple to use a condom, to prevent either pregnancy or disease, because its use violates the structure of the act.

In contrast to traditional moralists, Pope Benedict is now claiming that the use of a condom by unmarried heterosexual couples in order to prevent a deadly disease is a mitigating circumstance, despite the fact that its use violates the natural structure of the sexual act. That claim is fairly narrow. It need not, for example, be extended to condom use by unmarried heterosexual couples to prevent conception. A baby is an ontological good, whether or not her parents are married. A disease—particularly a deadly disease like AIDS—is an ontological evil.

Thus, the pope’s remarks could be narrowly interpreted to mean only that, while unmarried heterosexual sex is always wrong, it is a mitigating circumstance to use a condom to prevent disease. The use of a condom to prevent pregnancy, however, remains an aggravating circumstance.

This would be a development in the tradition, but not an enormous one. It would simply recognize that, in identifying aggravating and mitigating circumstances, the concerns of justice and the common good (preventing the transmission of a plague) are paramount. It is still wrong to engage in extramarital sex. It is still wrong to engage in an act that is not per se apt for reproduction. But it is worse to engage in an act that will forseeably result in the death of another person. Homicide is, after all, the most serious sin, because it entails the violation of the rights of another human being, as well as a deep wound to the common good.

Is it possible to interpret the pope’s remarks more broadly? Yes. And that possibility brings us to our third question for the pope, which pertains to the use of condoms by married couples. To focus the issue on disease prevention, suppose there is a loving, postmenopausal married couple, in which the husband has contracted HIV through a blood transfusion. They have three options: first, not to have sex; second, to have sex without a condom; third, to have sex with a condom. What should they do? According to traditional Catholic moralists, the first option is always licit. The second option is probably illicit, since it likely involves too great a risk, but it is not intrinsically (and therefore always) wrongful. The third option, sex with a condom, is always illicit, because it distorts the structure of the sexual act.

So my question is this: Do the pope’s remarks imply that it can be morally licit for a married couple to have sex while using a condom in order to prevent HIV? Can we say that the use of a condom in these circumstances does not wrongfully distort the sexual act, since it is functioning to prevent an act of marital love from becoming an act of death? One could answer yes and still maintain a modified form of the structure-based requirement, since what is at stake in the hypothetical situation, apart from the condom, is still normal marital sex. Furthermore, the intention-based requirement against deliberately thwarting the procreative good of sex would continue to rule out the use of condoms for birth control.

If the pope were to answer this question in the affirmative, the development in the church’s moral teaching would be noteworthy. It would not, of course, meet the more global objections to the act-based approach to sexual morality that have been made by numerous revisionist Catholic ethicists over the past two decades. But it would be a significant step toward shaping that act analysis with a view toward wider obligations of marital love and social justice.

Related: The Human Dimension, by the Editors
The Church & AIDS in Africa, by Marcella Alsan 
Local Knowledge, Melissa M. Matthes's review of The Invisible Cure: Africa, the West, and the Fight against AIDS, by Helen Epstein

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.

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