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Canon Law for Today

By Rev. Frank Morrisey


Rev. Frank MorriseyCan the church apply penalties to the faithful?

Like any society, the church has to be able to avail itself of measures to punish those of its members who do not observe the common rules of the group, yet still wish to remain members.

In canon law, such measures are known as “penalties” and they can be applied only in very particular circumstances. A penalty presupposes that there has been a sin committed by the person involved.

Thus it follows that, before a penalty can be imposed, it must be shown clearly that the person who committed the “delict” (that is, the canonical crime) was responsible for the action. This presupposes grave matter, full knowledge, and full consent. A person who is not responsible for decisions cannot be punished for committing the crime (canon 1321).

On the other hand, canon 1321 presumes that if someone has done something seriously wrong, that person knew and understood what was occurring. However, difficulties arise sometimes when it is not clear whether or not a person was indeed free to carry out the act.

For instance, at times, an addiction can be so strong in a person that the sense of freedom is diminished, but this calls for careful consideration before any determination is made. Likewise, the psychological state of the person can be seriously diminished (by, for instance, the constant use of various drugs).

Penalties in the church are considered as a last resort. They are to be imposed only when necessary. This is why canon 1341 tells us that before a bishop imposes a penalty on a person, there must have been prior steps taken.

The first of these is known as “fraternal correction,” based on the Gospel precept to go and speak to the person with whom someone has a complaint (Mt. 5:23-25). A second form is known as “reproof,” which can be a formal warning, a strong statement of displeasure with the activity. The third form is more general, and is simply called “methods of pastoral care.” These latter could include inviting a person to obtain professional help to address the issue, to recommend a time of prayer and recollection, and so forth.

It is only when these methods have failed to bring the person to repentance that further steps are to be taken to impose a penalty.

There are various types of penalties. The most serious ones are known as “censures,” the most common of which is excommunication. Excommunicated persons cannot take part in the celebration of the eucharist or in any other ceremonies of public worship, nor can they hold any office in the church (see canon 1331).

There are different types of excommunication: one is incurred automatically, another is imposed as the result of a penal process, and the third is a public declaration of the state of the person. Many of the automatic excommunications apply to clerics, such as in the case of breaking the seal of confession, or attempting to celebrate the eucharist when a person is not a validly ordained priest.

There is also an automatic excommunication for abortion, but we will address this issue separately in another column.

An imposed penalty would follow upon a church trial. Fortunately, these have been rather rare in Canada except for the recent cases of those priests, who, by imposed penalty, have been dismissed from the clerical state for the sexual abuse of minors. Catholics who leave the church incur an automatic excommunication, because they no longer wish to live in communion with the church. If, however, they eventually wish to return, then arrangements are made, usually through the diocesan bishop’s office, to have the excommunication lifted.

Another type of punishment is known as an “expiatory penalty,” where a person is asked to make reparation for a crime committed. Such a penalty could include deprivation of rights of residence in a church-owned property, or an order to remain in residence in a certain place; there could also be a loss of office, demotion, and so forth.

For instance, some priests receive a sentence to reside in a particular place or house of penance; this can happen when they are too elderly to be dismissed from the clerical state and have no one to care for them. They are then to live a life of “prayer and penance” in reparation for the offences committed.

The third type of penalty is known as a “penal remedy”; it also includes penances that are imposed as a result of an action which is contrary to church law. Among the penances foreseen by the law, we find reference to the performance of some work of religion or piety or charity. If an offence was not public, there cannot be a public penance imposed on the person. This is to protect that person’s reputation. We notice a certain similarity here with the penance imposed on a penitent in the sacrament of reconciliation.

If a censure (such as excommunication) has been imposed on a person, it must be lifted if this person truly repents. Indeed, the entire purpose of penalties is to lead the sinner to repentance, to repair scandal, and to satisfy the demands of justice.

Hopefully, the imposition of such remedies will continue to be rare, but it is necessary to have the law in place in case certain situations arise which call for prompt action on the part of church authorities.

Morrisey is a professor emeritus of canon law at Saint Paul University, Ottawa, and has been very active over the years in the field of canon law, especially as it applies to dioceses and religious institutes. This is his 39th article in a series.