THE Catholic community in Quezon City was shocked recently by the much-publicized excommunication, inflicted by the diocesan Bishop on an impostor-priest. The person had been serving in the diocese of Cubao─especially in Christ the King Parish at Green Meadows Subdivision─for a good part of a year, but who was recently discovered to have never been ordained as he claimed he was in Europe. The scandal was exacerbated by the fact that this “fake priest” displayed a lot of positive external qualities (always properly dressed, well-spun homilies and pious liturgical celebrations), and of course administered the sacraments (including celebrating the Mass daily and hearing Confession). Several questions have been asked by disturbed faithful: Is it that easy for somebody to simulate being a sacred minister and victimize the faithful? Can the bishop punish so severely? What is excommunication ferendae sententiae? To answer these questions, we shall break this article into two parts.
The Penal Law of the Church
What is the justification for the coercive power? Or equiv¬alently, what is the ultimate justification for the ius poenandi? Several theories have been proposed, but we can summarize the prevailing canonical doctrine into three reasons:
1) Defense of the Juridic Order. The ultimate justifica¬tion of penalty is the same as that of Law: The need to maintain the juridic order (which is the end of punishment), without which society (civil or ecclesial) would be impossible.
Traditionally, punishment had been justified by three purposes:
(i) Retribution of damaged juridic order. Punishment aims to redress the disorder introduced by the offense, by depriving the offender of a good of a proportionate degree to that which was suffered by the offended, or—in the ultimate analysis—by the society. Hence, the punishment must be commensurate to the gravity of the offense. In any case, retribution cannot be confused with revenge.
(ii) Reformation of the offender. Since society is for man (not vise-versa), when society inflicts punishment, it must redound to the good of individual man. Thus, punishment must contribute to the correction of the offender, giving him a chance to change for the better.
(iii) Deterrence for future offenses. Punishment must deter crime, and it does so to the extent that the severity of the punishment produces fear, which hinders one from committing a crime. Thus, a successful deterrent must be a psychologically effective threat.
The first two ends of punishment are succinctly summarized by the Catechism of the Catholic Church in the following terms: Punishment has the primary aim of redressing the disorders introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people’s safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party (n.2266).
2) Perfect-Society Ecclesiology. A perfect society needs a coercive power in order to protect its juridic order against those who may want to disturb or destroy it from within. Since the Church is a perfect society, it needs such power.
3) Magisterium of John Paul II. In an address to the Roman Rota (17.II.1979), the Roman Pontiff gave the ultimate justifica¬tion for the ius poenandi in the Church: “In the image of a Church which safeguards the rights of every faithful, and which—even more—fosters and protects the common good as an indispensable condition for the integral development of the human and Christian person, penal law is positive¬ly included. The penalty inflicted by the ecclesiastical authori¬ty (which in reality only acknowledges the situation in which the subject has placed himself) should be recognized as an instrument of communion, i.e., as a means to recover those deficiencies of the individual good and of the common good arising from whatever anti-ecclesial, delictive and scandalous behavior of some members of the people of God.”
Dealing with the question of the death penalty, John Paul II affirmed that “the primary purpose of the punishment which society inflicts is to redress the disorder caused by the offense”. Thus, “public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfills the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behavior and be rehabilitated.”
Notion and Typology of Canonical Crimes
The old Code of Canon Law stated that in ecclesiastical law, the term crime (or offense) is understood as the external and morally imputable violation of a law which carries with it a canonical sanction, at least undetermined (c.2195). This gives an apparent configuration of canonical offense as a violation of a penal law.
Although the actual Codex does not define a canonical offense, c.1321,§1 gives us its constitutive elements: No one is punished unless the external viola-tion of a law or a precept committed by the person is seriously imputable to that person by reason of malice or culpability.
Here we are no longer considering the canonical offense as an abstract case, but the structure of a concrete one. From the above canon, we can glean three factors that determine whether or not a given case constitutes an canonical offense: an objective element (harm to the ecclesial society), a subjective element (grave imputability an culpability) and a legal element (typification of the delictive act as such in a penal law and the establishment of the corresponding punishment).
In principle, we can speak of as many types of ecclesiastical crimes as types of goods that are juridically protectable. Nevertheless, in the work of codification, the legislator has opted for a classifica¬tion of long tradition in classical Law, based on six categories of the more general goods, giving rise to the Titles I-VI of Part II of Book VI of the CIC:
1) Offenses against religion and the unity of the Church (cc. 1364-1369)
2) Offenses against ecclesiastical authorities and the freedom of the Church (cc. 1370-1377)
3) Usurpation of ecclesiastical functions and offenses in their exercise (cc. 1378-1389).
4) The crime of falsehood (cc. 1390-1391).
5) Offenses against particular obligations (cc. 1392-1396).
6) Offenses against human life and freedom (cc. 1397-1398).
Notion and Finality of Canonical Sanctions or Penalties
A canonical sanction or penalty is the priva¬tion of some good, imposed by the legitimate authority, for the correction of the offender and the punishment of the offense (CIC 17, c.2215).
We can analyze this canonical definition in the following terms.
1) Privation. Evidently, the sanction cannot be a gift, but rather—as Grotius affirmed—a malum passionis propter malum actionis (i.e., the offense). Being a canonical sanction, such malum must be in the ambit proper of the ecclesial society—i.e., the privation of some good which is enjoyed in the Church. Since it is the Church which deprives the offender of such good, and since nobody can deprive except of such things over which he exercises dominion, the goods which the canonical penalty can deprive of must have the following qualities:
a) Good of the juridic order—the enjoyment of which requires an external relation of Church-faithful, a rela¬tion on which are founded mutual rights and duties; these exclude moral rights, grace, etc.
b) Good of spiritual, material or mixed nature—since the relation Church-faithful applies to all three cases.
2) Finality of Canonical Sanction. This can be summarized in the formula: to defend the fundamental juridic interests of the Church:
a) Not Retribution. The ecclesial society inflicts a sanction not because such sanction is just: there is no exact correspondence between offense and sanction. Rather, a sanc¬tion is imposed in order to support and preserve the just juridic ordering.
b) Correction of the Offender. The Church tries to move the offender to contrition and amendment.
c) Other Ends of Sanction. These are not properly ends, but rather qualities of sanctions. It is said that penalty intimidates, sets an example, and gives social tranquility (by acting as a deterrent to crime).
Kinds of Canonical Sanctions
Can. 1312,§1 states: The following penal sanctions exist in the Church: 1° medicinal penalties or censures enumerated in cc. 1331-1333; 2° expiatory penalties enumerated in c.1336.
a. Medicinal Penalties: Censures
The censure is a penalty by which the baptized and contumacious offender is deprived of certain spirit¬ual or related goods until he ceases in his contumacy and is absolved (CIC 17, c.2241). Analyzing this definition, we see the following elements of the ecclesiastical censure:
a) Objective Element: It is a true penalty (not just a penance). The spiritual or related goods which a censure can deprive the offender of are only those under the control and administration of the Church.
b) Subjective Element: The destinatary of the penalty is the person who has been baptized—or received—in the Catholic Church (c.11), and who has completed 16 years of age (c.1323, 1°).
c) Formal Element: Contumacy. A special requisite of the censure is contumacy—i.e., the persistent will in the of¬fender to violate the ecclesiastical law. It is the juridical counterpart of the Pauline (and biblical) notion of the hardness of heart.
It is worthwhile noting that contumacy is not conceptually identifiable with the reincidence in the offense (even if the latter can be a manifestation of the former). Thus, c.1326,§1, 1° employs the term pertinacia for the case of reincidence. This is due to the fact that the notion of contumacy is derived not from the relation of offender-offense (i.e., to his persistence in the delictive act per se), but rather from the relation offender-authority: the rebellion against Church au¬thority.
This doctrine is very much in keeping with the notion of the censure as a medicinal penalty: as a medicine, a censure should only be inflicted after all the extra-penal (e.g., warn¬ings) or semi-penal (e.g., penances) means for making the of¬fender submit to ecclesiastical discipline have been exhausted. Obviously, such measures can only be effective if the presumed offender submits himself to the ecclesiastical authority, who determines the manner in which he can express contrition, satis¬faction, etc. The minute such person rejects such means, he breaks off from the Hierarchy, who then have to impose a censure to break the contumacy.
b. Expiatory Penalties
Expiatory penalties are those whose direct finality is the expiation of the offense, such that their remis¬sion does not depend on the cessation of the contumacy of the offender (cf. CIC 17, c.2286 under the term vindictive penalties). Due to the possible pejorative sense and allusion to retri¬bution of the term vindictive, the new Code has opted for the expression expiatory penalty, taken from St. Augustine (De ci¬vitate Dei, 21.13); but the notion is the same, in its nature as well as its effects. From the above definition, the following essential elements can be deduced, which differentiate the expiatory penalties from censures:
a) Principal and Direct Pretension of expiatory penal¬ties is the expiation of the offense, i.e., the reparation of the social order objectively damaged by the offense.
b) Verification of contumacy is not relevant to the infliction of expiatory penalties; neither is the cessation of contumacy relevant for their remission.
c) Duration: Expiatory penalties can be inflicted per¬petually, for a fixed time, or ad nutum of the Superior.
c. Penal Remedies and Canonical Penances
Can. 1312, §3 further states: Penal remedies and penances are likewise employed; the former especially in order to prevent offenses, the latter to substitute for or to increase a penalty.
1) Penal Remedy: A moderate, canonical, para-penal means of a preventive nature.
It cannot be considered as a punishment in the strict sense, since it is established precisely to prevent the commis¬sion of offense (which is necessary for a punishment). Thus we call it para-penal.
2) Canonical Penance: A juridic semi-penal action by which the legitimate authority imposes the carrying out of an external act of piety to the repentant offender, in lieu of the due penalty, or to substitute for an inflicted penalty which has been remitted either by absolution or by dispensation.
(To be continued)