§ 2. On Denouncing The Crime Of Solicitation

1794. First of all it is useful to report the words of BENEDICT XIV, who, confirming the Bull of GREGORY XV, speaks thus in the Constitution Sacramentum: "We command all local Ordinaries... that diligently, and with every human respect set aside, they inquire and proceed against each and every priest, both secular and regular, however exempt... and of whatever dignity... who shall have attempted to solicit or provoke any penitent, whatever person he may be, either in the act of sacramental confession, or before, or immediately after confession, or on the occasion or pretext of confession, or even outside the occasion of confession in the confessional, or in another place destined or chosen for hearing confessions, with the simulation of hearing confession there, to dishonest and base things; whether by words, or signs, or nods, or touch, or through writing, either then or afterward to be read; or with them shall have had illicit and dishonest conversations or dealings with rash daring."¹⁷

"Let each and all priests appointed for hearing confessions remember besides that they are held and obliged sedulously to admonish their penitents, whom they know to have been solicited by others as above, according to the circumstances of the cases occurring, concerning the obligation of denouncing to the aforesaid local Ordinaries the person who has committed solicitation, even if he be a priest who lacks jurisdiction for validly imparting absolution, or the solicitation was mutual between confessor and penitent, whether the penitent consented to the solicitation or by no means furnished consent, or a long time has already flowed by after the solicitation itself, or the solicitation was performed by the confessor not for himself, but for another person."

On these matters three things come to be weighed: 1. when the crime of solicitation is present; 2. what the obligation of denouncing is; 3. how in practice the confessor ought to proceed.

1795. By the word SOLICITATION, in the Sacrament of Penance, is understood an invitation, incitement, or provocation to venereal things, made by a confessor, under certain clauses. It is a MOST GRAVE sin, both because it inflicts grave injury on the Sacrament, and because it brings mortal harm upon the penitent, offering him poison for medicine. If the one soliciting is the pastor himself, solicitation contains a special malice, or a special sin against justice, because from justice he is bound to feed his sheep by word and example (cf. n. 786, note 2).

It is said, 1. Invitation, namely one which is made by words or signs inductive to lustful acts. Hence solicitation must be held as complete (whether the penitent in fact consents to the sin, or resists), whenever an act suitable for alluring to venereal things is placed.¹⁸ - Nor does it matter whether the act is, in itself, evil or indifferent, provided from the circumstances it is afterward known that it was placed for soliciting; for example, if the confessor imposed upon a woman that she wait for him at home, or if he asked where she lived.¹⁹

It is said, 2. to venereal things; for a denunciation is not to be made if the solicitation was to other crimes. Nor does the obligation of denouncing press unless the solicitation was gravely culpable; wherefore it is to be noted that some acts can be held in themselves as venial, which nevertheless, if they are done by a priest engaged in the act of administering the Sacrament of Penance, become gravely culpable.²⁰ - But denunciation is to be made whether he solicited a male or a female, whether he solicited to sin with himself or with another, or finally whether he solicited the penitent immediately or, through the penitent, some other person.²¹

It is said, 3. under certain clauses, by which namely the law defines solicitation to have sufficient connection with the Sacrament, and to be denounced as an abuse of it.

CLAUSE 1. In the act of sacramental confession. For this it is sufficient if confession has been begun, although not perfected. Note here the sixth proposition condemned by Alexander VII, which said: "A confessor who, in sacramental confession, gives the penitent a paper to be read afterward, in which he incites to venery, is not judged to have solicited in confession."²²

CLAUSE 2. Immediately before or after. This word immediately, according to the more common opinion, is to be understood so strictly that no interval or action intervenes between the solicitation and the sacramental confession.²³ - Hence a confessor is to be denounced: 1. if, before the confessional, he dishonestly touches with hands or feet a woman waiting for the sake of confession, not by chance, but by design. 2. If immediately after confession, while she approaches to kiss his hand, he himself basely touches her. Likewise, if he at once leads her into a room and there solicits her; or if immediately he says: Wait a little while, and after some interval (but not on the following day) begins to solicit: for in either case he immediately places the means of solicitation. But otherwise, if, with no such means having been placed, he approaches and solicits her when she has already gone out of the confessional.²⁴ Yet attend to

CLAUSE 3. On the occasion or pretext of confession. It is said on the occasion of confession, when the confessor takes the opportunity of soliciting from a confession truly sought, or truly made; but on the pretext, when he takes the same opportunity from a fictitious confession, that is, from a confession which was proposed solely for this end, that it might serve solicitation.

Hence: 1. From the first head, a confessor is to be denounced who, having been asked for confession, diverts the conversation elsewhere and solicits, even if he has not yet sat down, nor the woman knelt. And this same must be said, although he is asked that he hear the confession only on the following day; provided the solicitation is then made in the confessional, or in the place of confession, or under pretext of confession. Likewise, he is to be denounced if, on account of the fragility of the woman known from her confession, he afterward solicits her at home; provided, from indications, it is sufficiently evident that he was induced to solicitation from that knowledge, and not from other causes.

2. From the second head he is to be denounced if, on account of an evil end, he fictitiously invites a woman to confession, and then solicits; likewise, if, called by a mother to hear the confession of her daughter, he approaches this daughter with an evil end and solicits her; or if, called to absolve a woman deprived of her senses, he comes under such pretext or occasion, and dishonestly touches her. Likewise, if he persuades a woman, already solicited outside confession and refusing on account of fear of defamation, that, pretending herself sick, she summon him for sinning. But otherwise, if he uses such a pretext not to solicit the woman, but only to deceive the Superior, members of the household, etc.; or if the woman herself, with no prior agreement, uses the pretext of confession to call and solicit the confessor; "although afterward they have relations."²⁵

CLAUSE 4. In the confessional, or in another place destined or chosen for hearing confessions, with simulation of hearing confession. Therefore, that the obligation of denouncing may arise from this clause, it is necessary that simulation of confession have intervened. That is, the priest must so conduct himself that he can deservedly be believed actually to be receiving confession, e.g. by applying his ears. Hence, one is not to be denounced who, sitting in the confessional and in no way simulating confession, solicits a woman standing or sitting before the confessional. Thus from the Declaration of the HOLY OFFICE, Feb. 11, 1661, under n. 15. But otherwise, if he solicits her kneeling in the confessional, or in the place of confession. Otherwise also, according to many, if both IN THE CONFESSIONAL treat of dishonest matters, without simulating confession; for, from the Decree of Paul V (July 10, 1614), all those are to be denounced who have abused the Sacrament of Penance by employing confession, or the confessional, for dishonest ends.²⁶ Others, however, not improbably contradict: because the cited Declaration of the Holy Office, which Benedict XIV approved, seems to have derogated from the Decree of Paul V by an authentic interpretation.²⁷

1796. IT IS ASKED. Whether denunciation is to be made if the solicitation was DOUBTFUL?

Resp. Distinguish. 1. If from some fact or saying solicitation is indeed certain, but it is not evident who the one soliciting was, denunciation is to be made, so that the Superior may be able to inquire concerning the person soliciting, in the case where such inquiry is easy, without danger of defaming an innocent person. - 2. If the one suspected of solicitation is certain, and it is doubted whether the fact or saying was true solicitation, denunciation is not to be imposed on the penitent; both because in penalties the more benign interpretation is to be made, and because, in doubt, no one is to be deprived of the reputation which he possesses. Except: 1. If vehement indications of solicitation accede, e.g. on account of the evil life or bad reputation of the confessor, which would found moral certitude. - 2. If the words of themselves carry solicitation before them, and only it is doubted whether the confessor uttered them for an evil end; because, unless something else stands in the way, the presumption of intention is to be taken according to the proper meaning of the words.²⁸

To this point belong two Responses of the HOLY OFFICE taken from the declaration of February 11, 1661:²⁹ To the 12th: "Whether a confessor, if he praises the penitent for beauty and gracefulness, is said to solicit her, and therefore is to be denounced? They judged that if that is serious and smells of no evil intention, the negative opinion is probable. - To the 16th: Whether a confessor is to be denounced who, while hearing confession, gives a gift to a woman, so that by this deed he is said to solicit her? They answered the same as to the twelfth."

1797. We pre-note: 1. "The end of the law of denunciation, as Eusebius Amort skillfully adverts,³⁰ is not the correction 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 inevitable fear of all confessors of incurring the gravest punishments, even by a single act, or one repeated only once; indeed also the indemnity of the Church, lest pests of this sort steal into public offices, than which nothing is more harmful to the common good of the Church."³¹

2. But the end of each denunciation is: 1) That, if the person denouncing is otherwise very honest and worthy of faith, and suspected of no malice, revenge, enmity, or subornation, and the denounced person otherwise is a man of little fear, he may make such a denounced person suspect, so that he may be observed by the Ordinary. - 2) That, if greater indications from another source concur on the part of the denounced person, e.g. otherwise suspicious conversation, they may furnish the Ordinary a motive for employing, the first time, a paternal admonition, by which he indeed does not impute the crime, but exhorts to caution, yet in such a way that he does not render the denouncing person suspect to the denounced. For, very often, one is accustomed to proceed to judgment only from the third denunciation (Instruction of the HOLY OFFICE, Feb. 20, 1867, under n. 11).³² - From these things you will understand the response to the following.

1798. Questions. Q. 1. Who OUGHT to be denounced?

Resp. 1. From the Pontifical Bulls and decrees of the Holy Office, one is to be denounced: 1) A priest of whatever dignity, who is certainly guilty of the crime of solicitation, from the rules and clauses explained above. Nor does it matter that he lacked jurisdiction, if he solicited in confession³³ (from the Response of the Holy Office, Feb. 11, 1661, to doubt 5, and Instr. of the year 1867 under n. 2). - 2) A confessor consenting to solicitation; nor is he excepted who, immediately ceasing to speak of base matter, deferred the completion of it to another time, and did not furnish absolution to the penitent; likewise if he consented induced by fear; and a fortiori, if the solicitation was mutual between him and the penitent. From Resp. of the Holy Office 1661 to the 2nd and 9th.³⁴ - 3) He is to be denounced, even if a long time has flowed by from the solicitation, and the crime has remained wholly occult. Nor, more probably, does the law of denunciation cease if the one soliciting has been corrected, or because of another denunciation has already abjured before the Inquisitor, i.e. has purged himself of suspicion of heresy, or has been punished, or even has spontaneously denounced himself. A fortiori if he has offended again, he must again be denounced.³⁵ - 4) Likewise he is to be denounced who solicited a girl who, on account of her simplicity and candor of soul, suspected nothing about the malice of impurity. She, as soon as she has become conscious of the wicked solicitation, is bound to denounce.

Resp. 2. One is not to be denounced: 1) The one soliciting, if already deceased, because the total end of the law ceases, namely both correction and punishment of the guilty. Except if there is question of repairing damage perhaps inflicted on others.³⁶ - 2) A penitent who solicited the confessor, and an interpreter who solicited the penitent; likewise one commanding the confessor to solicit; a layman and a simple cleric who simulated themselves as confessors. Nevertheless these, if they received confession, are to be denounced, from the Constitution Officii nostri partes of Gregory XIII (Aug. 6, 1574) and the Edict of the Holy Office, as suspected of heresy.³⁷ - 3) Finally, a priest is not to be denounced who, amid the administration of other Sacraments, has fallen into the crime of solicitation.³⁸ Except if the circumstances of the matter are such that there is an obligation from natural law. For all, having seen the wolf in the sheepfold, ought to cry out.

Q. 2. Who are HELD to denounce?

Resp. 1. All and each of the solicited penitents are held, even if they consented to the solicitation; nor can they be absolved unless they first denounce, or, if there is a just cause for deferring, e.g. the necessity of communicating, at least promise to denounce.³⁹ - But from the decree of the Holy Office, Sept. 27, 1624:⁴⁰ "If a woman consents to the confessor soliciting, she is not bound to manifest her consent, nor can she be questioned about this by the Bishop."

2. Besides the solicited persons themselves, every witness of this delict is held, whether by sight or by hearing, and any other person (even an impubescent) who has understood the solicitation, immediately or mediately from the sayings of the one soliciting himself, or of the person solicited (provided this person is worthy of faith), outside confession.⁴¹ - Nor does the obligation cease to press even if there is question of denouncing one's own blood-relatives; indeed, even if the crime is known under a natural secret, or with an oath promised. Except if the solicitation was manifested for seeking counsel; because the common good requires that such a secret be kept.⁴²

3. The solicited person is not exempted from the law of denunciation because another has already denounced; for each solicited person is bound to denounce.⁴³ Nor is anyone exempted from this law on account of intrinsic and common difficulties, such as: shame of the solicited person; fear of stirring up against herself the suspicion of the judge; danger of undergoing a slight inconvenience, or of inflicting damage on the Church and souls; indeed, danger of grave, but scarcely probable, damage: for difficulties of this sort are not of such weight that they give place to epikeia.⁴⁴ Nevertheless, a founded fear will be able to be a motive either for deferring the denunciation, or for obtaining a dispensation, as will be said below.

4. No one is bound to denounce himself; hence no confessor is bound to admonish a penitent whom he solicited that he denounce him. Nevertheless, if the solicitor spontaneously appears, he will enjoy the benefit of those spontaneously appearing, that is, he will be punished only with salutary admonitions and penances, unless perhaps he had already been denounced by others; in which case the penalty will only be diminished.⁴⁵

Q. 3. What PENALTIES were established or threatened in the present law?

Resp. 1. The solicited penitent (and this one alone) incurs an excommunication reserved to no one, if he culpably omits for a month to denounce the guilty person, according to what was said at n. 1354. - 2. One falsely denouncing, or commanding, counseling, etc., another to denounce, falls into a case reserved to the Roman Pontiff, as was said at n. 1772. And he is bound, as is plain, to retraction. - 3. The solicitor, from the Decree of Benedict XIV of August 5, 1745, incurs perpetual inability for celebration of Mass. The Bishop, the matter having been well considered, is ordered to interdict him in perpetuity from receiving confessions, depriving him of all faculties, not even excepting those which had been granted to him by the Holy See. - But all these penalties, like the others threatened by Gregory XV, namely privation of benefice, of active and passive voice, etc., are of ferendae sententiae, and suppose that the guilty person had been admitted to defense, as the laws demand (from the Instr. of the Holy Office, year 1867, n. 12).⁴⁶

Note. Besides, inquiry must be made: 1. Whether the case of solicitation, as is customary, is reserved in the diocese. - 2. Whether the solicitor attempted to absolve the accomplice: in which case the penalties are incurred which we have recalled at nn. 1781 and 1782.

1799. 1. The confessor, hearing in confession that a person was solicited, before all things ought to EXAMINE: 1) whether this person is worthy of faith, whether led by hatred or malice or even levity she wishes to calumniate the priest; 2) whether all the circumstances are present which make certain the obligation of denouncing. - But let him beware of inquiring into the name of the one soliciting, and let him admonish the penitent that the case of false denunciation is reserved to the Supreme Pontiff.

2. If the solicitation is plainly evident, he is bound sedulously to admonish the solicited person, although existing in good faith, concerning the obligation which binds her, under penalty of excommunication, to denunciation. And indeed he is bound to this, even if he foresees that it will happen that the person refuses to denounce.⁴⁷ "Those who do not admonish their penitents about this obligation ought to be punished" (from the Instr. of the HOLY OFFICE, Feb. 20, 1867, n. 4).

3. Let him sedulously weigh the excuses which the solicited person usually brings forward. If they seem just, let him examine whether there is a cause for deferring the denunciation, or even for petitioning relaxation of the law. - If the first, e.g. if the Bishop is absent, or if the necessity of communicating presses, the penitent will be able to be absolved, provided he seriously promises that, as soon as possible, he will satisfy his obligation.⁴⁸ If the second, e.g. if there is probably danger of undergoing grave damage in the goods of reputation, fortune, or body, let the penitent, by himself or through another, e.g. through the confessor, have recourse to the Superior, explaining the nature of the impediment by which he is detained from making denunciation, and ask what is to be done by him. If necessity presses, and he pledges that he will stand by the decision of the Superior, he can be absolved.⁴⁹

4. If the excuses are vain, e.g. if the penitent, on account of gifts received or to be received, says that he is impeded from denouncing by gratitude or necessity, etc.: let the confessor oppose the gravity of the sacrilege, the necessity of obeying the laws of the Church, and the penalty of excommunication to be incurred. Let him also show that no danger of infamy is present, because the solicited woman is not bound to manifest her consent; indeed, if she should spontaneously manifest it, or if the accomplice should reveal it, it will not happen that the judge ever alludes to such a fall. If he consents, absolution should not be granted to him at once, but prudently deferred until he has actually denounced.⁵⁰

5. If, detained by no impediment, he wholly refuses denunciation, "the confessor is to be praised who has not denied his effort to the penitent." Therefore in this case, let him not indeed absolve the person, but make him return to himself at another convenient time. Meanwhile, let him consult either the Ordinary or the Holy See through the Sacred Penitentiary or Sacred Inquisition, all the circumstances having been explained, for an opportune remedy, the name of the penitent nevertheless being suppressed.⁵¹

1800. IT IS ASKED. How is denunciation to be made?

Resp. The burden of denunciation is personal, and to be fulfilled by the solicited person himself,⁵² and this in judicial form. - Hence, either let the person himself approach the competent judge, or see that the judge by himself, or through another, meet with him. - Therefore, if impeded from personally approaching the Ordinary, either let him inform him, through an intermediary or through a letter, that he has a denunciation to be made pertaining to the ecclesiastical tribunal, and that he asks that a delegated person be sent to receive it; or let him manifest the delinquent by letters.

This memorial can also be drawn up by the confessor, the sacramental seal always being safe, if the person is unable to write, or performs this with difficulty. - But if, on account of too much shame or fear of infamy, the person refuses to depose before another delegate, let the Bishop be admonished about this matter, who will be able to delegate that confessor himself to receive the denunciation in judicial form.⁵³ Generally, indeed, it is not expedient that the confessor take this burden upon himself, because he would be exposed to not a few detractions and dangers. Yet sometimes he can be held by the law of charity to do this.⁵⁴

The substantial things which must altogether be observed in a denunciation to be accepted judicially are these:⁵⁵ 1. Let the day of denunciation be noted. - 2. Let an oath be received from the denouncer about speaking the truth. - 3. Let the place of the crime, its time, qualities and circumstances, and witnesses be expressed. - 4. Let the name both of the one soliciting and also of the one solicited be expressed; but if the name is unknown, it must be expressed in an equivalent way, i.e. from stature, age, features, etc. - 5. Let the denouncer and witnesses emit an oath about keeping silence, and, the acts having been drawn up, let them subscribe.

Note. For more things about the manner of proceeding in these cases, see in the cited Instruction of the HOLY OFFICE edited in the year 1867. In this it is also found noted under n. 15 what is to be done in distant regions, where the ordinary form of trial cannot be observed. See also the Canonists.⁵⁶