As we saw in the previous column, the church hesitates before imposing a penalty on a member of the community who has seriously offended. Penalties are to be used only as a last resort. Nevertheless, even if it is considered necessary to proceed, the Code of Canon Law still sets out a number of checks and balances, to make certain that an arbitrary or excessive use of the right to punish someone is avoided.
Thus, for instance, canon 1323 provides that no one under the age of 16 is subject to a church penalty; someone who without fault was ignorant of violating a law is also exempted. (This is why we sometimes say that “ignorance is bliss.”) The same provision applies to those who acted under physical force and were not free; those who acted under grave fear, unless the act they carried out was intrinsically evil; someone who acted in legitimate self-defence against an unjust aggressor; someone who lacked the use of reason, and so forth.
In other instances, guilt remains, but the penalty must be lessened (see canon 1324). For instance, in the case of someone who had only an imperfect use of reason; certain cases of drunkenness can also diminish responsibility; someone between the ages of 16 and 18. The ecclesiastical judge is also given leeway to diminish a penalty if there were other circumstances present which would reduce the gravity of the offence, for instance, a person who suffered from serious addictions or who was well advanced in age.
Obviously, if someone intentionally became drunk in order to be free of inhibitions, the guilt remains and, if appropriate, a due punishment is to be imposed (see canon 1325).
At the same time, canon 1326 allows the judge to impose a more serious punishment on a person who continues to offend, or on someone who has a position of dignity in the church, or has abused a position of authority. Thus we have seen how Pope Francis, in certain special cases involving bishops, has intervened directly and removed them from office because of the scandal caused by their acts.
In certain instances, a canonical offence has a parallel in secular legislation, such as cases of robbery, physical and moral abuse, seriously harming a person’s reputation, and so forth. In others, the matter is entirely an internal church matter (such as celebrating certain sacraments without proper authorization).
It is important to distinguish clearly between the two categories of acts. If the matter is being handled by the secular authorities, sometimes it is preferable for the church not to act, at least immediately — to avoid conflicts of jurisdiction.
Canon 1329 contains a very important principle. An accomplice incurs the same penalty as the perpetrator if, without his or her assistance, the crime would not have been committed. Thus, for instance, in the case of a procured abortion, the person who pays for the procedure might fall under the same censure as the woman who undergoes the abortion.
In some instances, the code speaks about applying “appropriate” or “just” penalties. This is left to the discretion of the judge who has to impose the sanction. Thus, in the case of someone who has already taken serious steps to repair the harm done by an act, the judge could be more lenient. The judge can also delay the sentencing until other matters have been resolved. For instance, if, as noted above, a given matter were also a crime in the secular arena (for instance stealing church money), and the person had to serve jail time, the church court could wait until the person was released before proceeding with internal church decisions. A sentence can also be suspended, and the person placed on what we could call “probation” for a given period of time.
For major penalties, except for those which are automatic, a person must have been given a formal warning beforehand not to proceed with the act. For instance, if it became known that a person was teaching heresy, he must first be warned to cease and desist from doing so; if he continues to express the same heretical opinions, then a penalty can be imposed.
In the church, a penalty imposed on a person continues to bind even though the one who imposed it is no longer in office. On the other hand, before a penalty is removed, there must be serious signs of repentance and reparation of damages and scandal.
In cases of danger of death, any confessor can absolve a penitent from a penalty imposed, even if the absolution was ordinarily reserved to the Holy Father (as in certain major cases, such as breaking the seal of confession). This provision is another sign of the church’s concern for the spiritual well-being of its members.
No ecclesiastical judge likes to be involved in this painful area of church life. However, for the well-being of all and the repentance and conversion of the guilty person, it is necessary to be able to proceed – carefully and discreetly, but also with certainty.
Morrisey is a professor emeritus of canon law at Saint Paul University, Ottawa, and has been active over the years in the field of canon law, especially as it applies to dioceses and religious institutes. This is his 40th article in a series.