Chapter — Konings, Theologia Moralis
APPENDIX II: ON SOLICITATION IN CONFESSION
1407. - I. When this crime of solicitation exists. - Here there is question of the abuse of the Sacrament of Penance for shameful things, - but not of the abuse of other Sacraments for shameful things, nor of the abuse of the same Sacrament of Penance for other sins, even very grave ones (see Resp. S. C. O. a. 1661 ad Dub. 10. 11. p. LXI.). But the obligation of denouncing solicitors seems to have been imposed on account of this venereal matter alone, because, on account of the frailty of nature, this solicitation can happen more frequently and there can exist a greater danger of consenting to it.1 Now it is asked: A) What is understood by the dishonest and shameful things to which solicitation is made? B) By what act is solicitation completed? C) What sort of nexus must intervene between solicitation and the Sacrament of Penance, so that truly and according to the mind of the legislator the solicitation is an abuse of the Sacrament?
Notes to nn. 1407-1411 - note sequence 1. (1) L. VI. 686. (2) Amort. q. 19. Notes to nn. 1407-1412 - note sequence 1. (1) L. VI. 699. Form of denunciation, see p. 196. (2) Instr. S. C. O. a. 1867. 6. p. LXIII. (3) Bened. XIV. l. c. (4) L. VI. 698. Prax. Conf. n. 83. Bened. XIV. Notes to nn. 1407-1411 - note sequence 2. (1) L. VI. 687. Cf. Resp. S. C. O. a. 1661 ad Dub. 13. p. LXI. (2) L. VI. 688. H. A. Tr. XVI. 175. (3) Amort. l. c. q. 19. (4) L. VI. 692. (5) L. VI. 698. Rev. Th. T. XII. p. 15, 16. n. VIII. IX. (6) Amort. q. 21. Notes to nn. 1407-1412 - note sequence 2. (1) L. VI. 693. (2) Potesta apud Amort. l. c. q. 16. Cf. L. VI. 700.
1408. - Ad A). By dishonest and shameful sins, to which solicitation is made, are understood all external lustful acts or acts of luxury, to which also pertain acts which either from their own nature, or from the particular disposition of the accomplice, or from the intention of the one acting, otherwise sufficiently manifested (e.g. by a sign or word3), are inductive to a vehement commotion of the genital spirits.2 One soliciting only to acts venially dishonest, and therefore not venereal (for in these there is not smallness of matter. See n. 484. 485 and Resp. S. C. O. a. 1661 ad Dub. 3. p. LX.), is not to be denounced, because solicitation must be a grave sin. Except if from the circumstances it were certainly conjectured that the priest, by an act evil of itself lightly, had had the mind of proceeding to grave things.4
A Confessor consenting only to a woman soliciting him in Confession is in no way exempted from the sin of dishonest dealing in the confessional, and therefore, as guilty of solicitation to shameful things in Confession, etc., must be denounced by the penitent by whom he was solicited, and this although he immediately ceased to speak of that shameful matter, deferring its complement to another time and not giving absolution to the penitent;1 likewise although, induced by fear, he consented to the solicitation, and a fortiori when the confessor and penitent solicited each other mutually,2 for instance when the confessor, solicited to one species of shamefulness, solicited the penitent to another.
Notes near nn. 1407-1408 (printed p. 143; left-column note sequence).
1 L. VI. 684. | 2 Amort. Tr. XIII. § 24. q. 5. | 3 e.g. by a rather flattering word. | 4 L. VI. 554 sub 3. 683.
1409. - Ad B). Solicitation to shameful things is present if a confessor (or even a priest lacking jurisdiction, but here in Confession3) solicits either a male or a female to sin either with himself or with another; nor does it matter whether he solicits the penitent himself, or, through the penitent as mediator, some other person. Moreover, solicitation of this kind on the part of the confessor can be made either immediately, e.g. by obscene words, or mediately, as by a note afterward to be read by the penitent;4 and it must be held as completed whether the penitent is in fact drawn into sin or resists, provided a means apt for enticing to dishonest acts is placed;5 nor does it matter whether the means applied is evil in itself or indifferent, provided afterward from the circumstances it is known that this was employed for soliciting, for instance if the confessor with this intention commands a woman to wait for him at home, or with this same intention asks her where she lives.6
1410. - Ad C). But solicitation of this kind, in order that it be an abuse of the Sacrament, must have, in the manner determined by law, some relation intervening either between itself and Confession, or between itself and the place where Confessions are heard.7
a) The relation required to Confession is present if the solicitation is made:
1) In the act of sacramental Confession begun, although not perfected; or
2) Immediately before it, i.e. with nothing intervening between it and the solicitation. To one using the request for Confession as a means of soliciting, apply what is to be said under 4); or
3) Immediately after, namely when after Confession neither the confessor nor the penitent turns aside to other things, so that the solicitation happens before any other action intervenes, - or if the confessor immediately after Confession leads a boy into a room and solicits him, because then he immediately places, if not the solicitation, at least its means; (20) p. 419. or
4) On the occasion of Confession (true). e.g. if the confessor, having been asked or inducing to Confession, turns aside and solicits, although he has not yet sat down, nor the woman knelt, and this although he has been asked only by the woman to hear her Confession on the following day, provided nevertheless that then the solicitation is made in the Confessional or in the place of Confession or under the pretext of Confession (see Resp. S. C. O. a. 1661 ad Dub. 4. p. LX.), - or if, on account of knowledge had in the woman's Confession, he should solicit her afterward at home, provided that from indications it is sufficiently clear that he was moved to this by that knowledge, not by other causes; (21) p. 419. or
5) Under the pretext of Confession (fictitious), if the confessor from an evil end fictitiously invites a woman to Confession and then solicits her, or persuades a woman that, pretending herself sick, she should summon him to sin. (22) p. 419.
b) A relation to the place where Confessions are heard will be present if the prohibited acts are exercised:
1) In the confessional properly so called.
2) In any place whatsoever where Confessions are customarily heard, although a confessional is not found there.
3) In any place whatsoever which the confessor at his own choice has chosen for hearing Confessions; and thus even in a field, etc.
But in order that the obligation of denouncing arise on account of the circumstances narrated under b), it is necessary that simulation of Confession be added, i.e. the confessor and penitent must act in such a way that the former seems to hear the confession (e.g. by applying his ears), the latter to make it. Hence he is not to be denounced who, sitting in the confessional, solicits a woman standing before the confessional, without simulating Confession. See Resp. S. C. O. a. 1661 ad Dub. 15. p. LXI. - Yet this simulation is not required if he solicits in the confessional a person who likewise is found in it; for in order to denounce it suffices that he himself in the confessional treats of shameful matters, without simulating that he hears Confession. (23) p. 419.
Notes near nn. 1408-1410 (printed p. 143; right-column note sequence).
1 S. Off. T. I. p. LX. 2, and p. LXII. 2. | 2 S. Off. p. LX. 8. 9. | 3 Resp. S. C. O. a. 1661 ad Dub. 5. p. LX. Instr. S. C. O. a. 1867 sub. 2. p. LXII. | 4 Prop. 6 condemned by Alex. VII, p. XIII. Cf. Resp. S. C. O. a. 1661 ad Dub. 1. p. LX. | 5 Viva, theol. trutina damn. thes. 6. n. 7. | 6 L. VI. 676. | 7 Ib. 676-680.
Appendix annotation (20), to n. 1410. a). 2). 3). p. 144. col. 1. That phrase "immediately before or after" some understand morally, so that if only something physical intervenes, or the interval is so brief that it ought to be computed as nothing, the confessor is still to be denounced by force of these clauses. The common sentence, which St. Alphonsus follows, L. VI. 617, takes it strictly, that is, physically. Nouv. Rev. Th., T. XII. p. 29. n. XXIX. Appendix annotation (21), to n. 1410. a). 4). p. 144. col. 1. From the examples which I allege it is clear that the word "occasion" here comes in a double signification: one of opportunity, the other of motive. "In both ways," says Passerinus, "Confession can be called an occasion of soliciting, either because they offer opportunity for doing this," as in the example which I bring forward in the first place, "or even because they offer a motive from which the confessor moves himself to solicitation," as in the example which I add in the latter place. Nouv. Rev. Th., T. XII. p. 31. n. XXX. I say at the end: "provided it is sufficiently established from indications," etc. Indications of this kind will be present if, for example, the confessor, after the sins have been heard, asks the woman where she lives, whether she is accustomed to remain at home alone, or asks some similar things; or, when he has approached for sinning, as Ballerini notes, by words or deeds he has recalled something from those things which he accepted from Confession. Theol. Pat., n. 393; Nouv. Rev. Th., T. XII. p. 34. n. XXXV. Appendix annotation (22), to n. 1410. a). 5). p. 144. col. 1. "But whether a confessor must be denounced who agreed with a woman that, to elude the domestics, she pretend to be sick and call him to the house for perpetrating sin? Concina and Mazzotta, l. c., affirm; likewise Fagundez apud Potestà, num. 513, and Sanchez apud Diana, p. 4. tr. 5. r. 37, because the pretext of confession then seems manifest enough. But more probably they deny, because then it is not verified that the confessor solicits or executes sin under the pretext of confession; thus the pretext of confession then is already ordered not to solicitation but to deceiving the domestics." St. Alphonsus, L. VI. n. 679. Cf. Theol. Pat., n. 394, 395. "External signs of simulation on the part of the confessor are to sit in a suitable place, to bless the woman, to hold the hand before the face, as is accustomed to be done in hearing confessions, and finally to extend the hand over her head while pretending to absolve her. But on the part of the woman the signs are genuflection, the sign of the cross, striking of the breast, joining of the hands, humble conversation with the confessor, which exteriorly appears as an accusation of sins." Potestà apud Nouv. Rev. Th., T. XII. p. 44. 2.
1411. - II. The obligation of denouncing does not bind, as is clear of itself, the one soliciting, nor is he held to warn the one solicited by him of that obligation. It must be made to the Holy See or to the Ordinary. But the end of denunciation is:
1) That, if the person denouncing is otherwise a very honorable person and worthy of faith, and not suspect of any malice, revenge, or enmity, or of subornation, and the one denounced is otherwise a man of little fear, a denunciation of this kind may render the denounced one suspect, so that he may be watched by the Ordinary. Cf. Instr. S. C. O. a. 1867 sub. 11. p. LXIV.
2) That, if otherwise greater indications concur on the part of the one denounced, e.g. otherwise suspect conversation, they may furnish the Ordinary with a motive, the first time, for employing a paternal warning, by which indeed he does not impute the crime, but exhorts to caution, yet in such a way that he does not render the person denouncing suspect to the one denounced. For "for the most part" it is the custom "not to proceed" to trial "except from the third denunciation." Instr. S. C. O. a. 1867 sub. 11. p. LXIV.
Hence the adequate end of the law is understood: namely, the Pontiff intends the punishment of the guilty party rather than his amendment, in order, that is, to repair the harm to the Church and the scandal,1 or, as Amort says, the end is not the amendment of a particular person, but the public security of the Sacrament and of souls, from the certain chastisement of so abominable a crime, and from the unavoidable fear of all confessors of incurring very grave punishments, even by one act or only once repeated; indeed also the indemnity of the Church, namely lest pests of this kind creep into public offices, than which nothing is more harmful to the common good of the Church.2
Wherefore:
a) Each and every person solicited is altogether held to denounce, nor is he exempted from the obligation of denouncing because another has denounced.
b) A Confessor must be denounced again if he offends again, after he has been punished on account of the first crime, or has not been fully convicted concerning solicitation.
c) The penitent is held to denounce the solicitor, even if from fraternal correction he hopes for his amendment; indeed, according to St. Alph., even if he has certainly been amended.
d) Denunciation must be made even if the solicitation cannot be juridically proved, or the crime is occult, or was perpetrated a long time ago. Nor can it be said that so late a denunciation can have no effect; for perhaps it will serve for the complement of other preceding denunciations concerning the same confessor, or with other indications for closing the door to dignities against hypocrites of this kind, or at least for the perpetual terror of the confessor, lest by repeated solicitation he complete the measure of sins, since solicitations "committed even a long time before can sometimes be called before the tribunal." But after the solicitor has departed from life, he is not to be denounced, because then the total end of the law ceases, namely both the amendment and the punishment of the guilty party.
e) There must also denounce, but today no longer under excommunication, every witness of this delict, whether by sight or by hearing, and whoever (apart from the case of advice having been asked) has learned the solicitation immediately or mediately from the sayings of the solicitor himself, or of the person solicited (provided this one is worthy of faith), outside Confession.
f) The person solicited or conscious of the solicitation is not excused from denunciation on account of difficulties intrinsic to the denunciation and almost common, such as the shame of the solicited one; fear of suspicion that will arise against oneself in the judge; danger of inconvenience or harm, which is slight relatively to the person denouncing and to the harms probably to be feared for the Church and for souls, or even danger of grave harm, but which is not probable: for these are not of such a kind that they give place to epikeia.
1412. - Practice of the Confessor. a) If it is doubted whether the deed or saying of the confessor was true "solicitation," the penitent is not to be obliged to denunciation, unless either 1) vehement indications of solicitation are added, or 2) the words of themselves present solicitation, and it is only doubted whether the confessor uttered them for an evil end... See the application of this rule in Resp. S. C. O. a. 1661 ad Dub. 12. 16. p. LXI.
b) Before the Confessor obliges the person solicited to denunciation, which is the condition of absolution, he must seriously weigh whether this person merits belief; because, if there is a grave, just, and very probable suspicion, strengthened by several indications, that she, led by hatred, wishes to calumniate some priest, she would not be obliged to denunciation, but rather would have to be rebuked for her malice. But in every case the person solicited is to be instructed concerning the very great crime reserved to the Supreme Pontiff alone, which she would commit through a false denunciation.
c) Let confessors altogether abstain from inquiring the name of the solicitor, although they are held to question the penitent concerning circumstances that must necessarily be known.
d) But if the confessor certainly knows that the penitent has been solicited, he is held diligently to warn her, although she is existing in good faith (Instr. S. C. O. a. 1867. 3. p. LXII.), concerning the obligation of denouncing, even if he certainly foresees that the solicited one is not going to denounce. - He should also indicate the mode of denunciation more accommodated to the circumstances of the person, place, and time. On this matter Amort gives the following rules: 1) When the Bishop or Vicar General (of the place in which the penitent is staying, says Kenrick) is in the vicinity, so that he can easily be approached by the person solicited herself, she is held to denounce the solicitor in her own person, and to say that N. N., a Priest, Pastor, Religious, solicited her to shameful things in the Sacrament of holy Confession. 2) If the Ordinary cannot conveniently be approached on account of distance or another cause (e.g. the illness of the solicited one, etc.), the person solicited is held to denounce the solicitor by letter, with her own and the solicitor's name written; but letters of this kind are to be transmitted with altogether such caution and security that no prudent fear remains concerning their loss. 3) If the person solicited cannot denounce even by letter, she is held to approach the rural dean, or a confessor, or another prudent man, who in her name may write to the Ordinary, or, through the Sacred Penitentiary or the Sacred Congregation of the Holy Office, to the Holy See (Instr. S. C. O. a. 1867. 7. p. LXIII.). Yet "regularly it is not expedient that the confessor take upon himself this burden of carrying the denunciation in place of the penitent, or of receiving it... Besides, we do not deny that in some case, for instance, if somewhere public harm were imminent, nor another way were open for avoiding it, the confessor could be obliged from the law of charity to undertake a burden of this kind; but this will rarely happen."
When a denunciation of this kind has been made, the Ordinary will write back to some ecclesiastical man, in whose prudence he trusts, that he may receive the testimony of the solicited one under oath, and may remit it with his own testimony concerning the honesty and fitness of the one denouncing to the Ordinary. And in this way the act of denunciation will be completed.
e) Therefore denunciation is never to be made anonymously, and indeed must always be directed personally to the Bishop or to the Vicar General, not to the office of the Ordinariate.
Let confessors diligently take care that they not impart Sacramental absolution to solicited penitents, unless, first bringing the denunciation to effect, they have indicated the delinquent to the competent judge. For since denunciation is a very arduous thing, the confessor must not show himself too credulous toward the promises of the penitent, and the solicited regularly cannot be absolved unless denunciation has first been made: but if there is an impediment to making the denunciation immediately, they must at least be prepared to denounce as soon as possible; otherwise they sin gravely and incur excommunication. But an impediment will be present if there is a just cause (Instr. S. C. O. a. 1867. 5. p. LXII.) for deferring it, - namely if the Bishop, Vicar General, etc., are far distant, or if there is necessity of communicating in order to avoid scandal or gain a jubilee, - and the person can be believed, that she is going to denounce. But if the penitent is not a faithful and God-fearing person, concerning whom it can be believed that she will satisfy her obligation, - or, even if one could not rightly doubt concerning the person's firm purpose of denouncing immediately, nevertheless there would be no grave inconvenience in deferring absolution, - she will have to be stimulated to making the denunciation as soon as possible by a delay of absolution.
f) If a person certainly solicited has refused denunciation, the confessor must inquire into the cause of the refusal, and, insofar as he can, remove it. In order, e.g., to remove from those denouncing the fear of infamy, he will be able to say: A woman denouncing is not received by the ecclesiastical judge as an accomplice, but as a witness; nor is she held to manifest her own consent; indeed she cannot even be questioned by the judge concerning it; but if from simplicity she declares that she consented, this is not noted in the records (Instr. S. C. O. a. 1867. 6. p. LXIII.). Nor is there danger of infamy for the one denouncing; because, if the confessor denounced, in order to diminish his own delict before the judge, were voluntarily to confess that he had performed dishonest acts with the person denouncing and with her consenting, the judge does not give faith to the confessor, but rather believes that he says this in order to evade judgment or lessen the penalty. On the other hand the woman is not held to manifest her own consent, nor does the judge concern himself with it.
If the penitent, on account of gifts received or to be received, says that she is impeded from denouncing by gratitude or necessity, or adduces other insufficient excuses, the confessor should seriously warn her concerning the gravity of sacrilege, concerning the obligation of obeying ecclesiastical laws enacted for preventing the greatest scandals and harms, - and also concerning the penalty of excommunication, which the person solicited incurs by the fact itself if, without legitimate cause, she does not denounce the solicitor as soon as possible (i.e. within a month), - and he should not easily admit those things which persons of this kind are accustomed to adduce, that they may be freed from the burden of denunciation. But if the solicited one, led by false shame or impious mercy, does not wish to denounce the solicitor, the confessor should not absolve her, but dismiss her as indisposed.
g) But if the confessor discovers that the person solicited is otherwise well disposed for the Sacrament of Penance, but has a just cause for resisting, namely on account of probable danger of grave harm in the goods of reputation, fortune, or body, - or that on account of panic fear or great shame she can in no way be brought to denounce the solicitor by herself or through the confessor, then indeed he should not absolve her, but should make her return to him at another convenient time; meanwhile, however, concealing the penitent's name and adding the causes which suggest her exemption from the obligation of denunciation, he should set forth the whole case to the Bishop: so that he may declare what in the Lord shall have seemed opportune, or, according to the condition of things, may request from the Sacred Penitentiary a dispensation concerning it (Instr. S. C. O. a. 1867. 7. p. LXIII.). For the Holy See sometimes grants the faculty to the confessor of dispensing the penitent for that occasion from the burden of denouncing, especially if the solicitor has already been amended and has done penance. Indeed then, after a serious promise has been made of standing by what is to be resolved, even in a case of necessity she can be absolved immediately.
Note. - Concerning the mode of proceeding in causes of solicitation, see Instr. S. C. O. a. 1867. 8-16. p. LXIII.-LXV.
Even exempt Regulars are to be denounced to the Ordinaries of places, as is clear from the Constitution of Gregory XV. Cf. n. 1202. O). 2°.
Notes to n. 1412 - note sequence 1. (1) L. VI. n. 702. Prax. Conf. n. 83. (2) L. VI. 615. 694. (3) L. c. q. 12. (4) Tr. XVIII. 245. Notes to n. 1412 - note sequence 3. (1) Cf. Amort. q. 21.