Article I: On the Absolution of an Accomplice in a Shameful Sin

631. Dispositions of canon law concerning the absolution of an accomplice. - According to can. 884: "The absolution of an accomplice in a shameful sin is invalid, except in danger of death; and even in danger of death, outside the case of necessity, it is illicit on the part of the confessor, according to the norm of the apostolic constitutions and especially of the Constitution of Benedict XIV, Sacramentum Poenitentiae, June 1, 1741."

This law is also sanctioned by penalties, from can. 2367:

"§ 1. One absolving or pretending to absolve an accomplice in a shameful sin incurs by that very fact an excommunication reserved in a most special manner to the Apostolic See; and this even in the article of death, if another priest, although not approved for confessions, can hear the confession of the dying person without some grave infamy and scandal about to arise, except in the case in which the dying person refuses to confess to another.

"§ 2. He who absolves or pretends to absolve an accomplice who indeed does not confess the sin of complicity from which he has not yet been absolved, but conducts himself thus because he has been induced to this by the accomplice-confessor either directly or indirectly, does not escape the same excommunication."

632. An accomplice is a partner and one as it were entangled in sin. This is to be understood without restriction, of whatever sex, age, and condition: anyone, whether male or female, whether pubescent or impubescent, provided he is capable of grave sin; indeed even the person with whom the priest had sinned before receiving the priesthood, as the Holy Office declared, January 22, 1879. And therefore he invalidly absolves here the accomplice who makes a general confession of sins, if the previous confessions were certainly sacrilegious, or even simply invalid.

But for complicity there is required:

1. Mutual sin, namely, that each one internally and externally committed the same grave sin; or the consent of two persons in the same grave and external shameful sin, whether each cooperates, as in mutual conversations and embraces, or one only acts, e.g., by touch, provided the other consents externally and internally at the same time; which consent is sufficiently presumed to be present if he resists in no way. Hence there does not fall under the law: a) an act which is mortal on one side, only venial on the other; b) nor an externally light act, although internally grave on both sides; c) nor an act, however grave, to which the other does not consent, indeed to which he has not furnished external consent, although he consents internally.

2. Formal complicity: a) at the same time of the sin; for in the case of sin with one sleeping, unwilling, totally drunk, insane, or ignorant of the shamefulness of the sin from erroneous conscience, or not attending to it in good faith, even if he was induced into error by the confessor, complicity is not present; - b) at the time of absolution; for 1. if the confessor during absolution inculpably does not recognize his accomplice, or 2. if he doubts and, by prudently questioning as much as he can without danger of his own infamy or scandal to the penitent, cannot remove the doubt, or 3. if the priest in no way (neither in the act of sin nor afterward) is known as a priest, but the penitent is altogether ignorant that his accomplice is a priest, the absolution is valid and licit. Namely, then the abuse of power which the Church prohibits is not present.

Yet it makes no difference if the confessor, as accomplice, was not known by the penitent in confession, provided it is verified that he truly is an accomplice, and the confessor knows him as such, and nevertheless absolves him: in this case the absolution is invalid.

633. Shameful sin is to be understood without restriction: any sin whatever of lust, i.e., against chastity and the sixth precept, not only perfect and consummated, but also imperfect and begun, such as touches, kisses, embraces, indeed shameful speech and looks, as the Holy Office declared, May 28, 1873, provided they are strictly lustful and import complicity; - not, however, sins against other virtues and precepts. Hence to absolve an accomplice in a sin of injustice, e.g., in homicide or in theft, is not specially prohibited; although even such an absolution is unbecoming.

But it is necessary that the sin of lust be grave, - external, - mutual, - not directly remitted, - and certain.

1. Grave, both objectively and subjectively, namely materially and formally. Therefore light sins are excluded, whether from imperfection of the act, or from erroneous conscience, or from lightness of matter, when there is question of lust voluntary only in its cause. Hence if a boy from erroneous conscience certainly judges that touches immodestly perpetrated by a priest are not a grave sin, he could be absolved by this priest.

2. External, so that both the internal and the external sin is grave, and also so that it as such, namely in the notion of an external act, is gravely sinful. For this reason sins merely internal, of morose delectation and desire, are excluded, as are external sins under every respect venial, and also grave sins whose grave malice is not fully manifested exteriorly. Hence if kisses or touches had from an internal lustful affection, as external acts, are not in themselves gravely evil, and the libidinous affection from which they are done is not fully manifested exteriorly, they can be absolved.

3. Mutual, so that each accomplice internally and externally committed the same grave sin against chastity, or consented in the same grave and external shameful sin, as was explained in the preceding number.

4. Not directly remitted. Hence if the sin has already been duly accused and validly remitted by direct absolution, so that it is now free matter of confession, the priest can absolve from it (Holy Office, May 29, 1867), although nevertheless it is altogether to be advised that he never hear the confession of his accomplice unless necessity compels, on account of the danger of temptation or irreverence toward the sacrament.

5. Certain, so that every founded doubt of law and of fact is excluded; otherwise the rule must be applied: in doubt, odious things are to be restricted. Therefore it is required that the shameful sin be certain, certainly grave, as such certainly external, certainly mutual, and that the complicity in it be certain.

Hence the case of complicity in a shameful sin probably is not present:

a) If it is doubtful whether the penitent sinned gravely.

b) If there was simple connivance from the fact that the other did not impede a sin which from office he ought not to impede, or approval of a heard shameful conversation which did not stir up other shameful conversations.

c) If the accomplice is not a partner immediately in the shameful act itself or in a sin libidinous according to itself, but only in a shameful agreement about seducing a woman who in reality is not seduced, or only in a shameful permission or invitation to sin with a spouse or offspring who nevertheless is not corrupted. Namely, mere cooperation in the shameful sin of another does not suffice.

d) If the accomplices are in an external act venial from its object (such as pressure of the hand, a light kiss, a momentary touch, or an embrace in an honorable part), although on both sides internally it is done from a shameful affection or intention, provided it has no externally immodest adjunct circumstance, or manifestation by which the affection or intention of immodesty sufficiently becomes known externally.

634. The absolution of an accomplice is radically invalid because of the privation of all jurisdiction. Therefore it is not, as some thought, a case of reserved sin, because there is not restriction but removal of power; for the incapacitating law makes the confessor lack all jurisdiction toward an accomplice accusing a shameful sin (or culpably concealing it), and the very absolution of the accomplice as such, and not only of the sin of complicity, is void, so that there is not given a valid absolution either direct of the other sins, nor consequently indirect of the sin of complicity.

Thus not only according to the tenor of can. 884, but also expressly according to the Benedictine Constitutions and the instruction of the Holy Office, February 20, 1867.1 Hence also in the instructions given by the Sacred Penitentiary for priests to be absolved from censure because of absolution of an accomplice, there occurs the clause that the accomplice-confessor should admonish the penitent "about the nullity of past confessions," and indeed without any restriction or distinction between the case of good or bad faith on the part of the penitent; indeed, from the fact that the penitent is said to be admonished, good faith is rather supposed.

Against this do not stand the words of the Sacred Penitentiary, May 16, 1877, affirming that the privation of jurisdiction "is in order to the shameful sin itself in which the confessor was an accomplice." For there the privation of jurisdiction is not denied but affirmed; it is not said that the privation of jurisdiction affects only the sin of complicity, but the absolution of the accomplice in order to the sin of complicity, so that the confessor is deprived of all jurisdiction and toward every sin, but uniquely in view of and by reason of complicity, i.e., when that sin is accused. Moreover the Sacred Penitentiary could not temper by its own authority and without special intervention of the Supreme Pontiff the law of the Holy Office or of the Benedictine Constitution, concerning which in the case nothing is reported.

Hence, if in urgent necessity an accomplice-penitent could not omit holy communion without grave scandal or infamy, nor could approach another confessor, content with a simple act of perfect contrition, he would have to approach holy communion, nor could he be absolved by the accomplice-priest.

635. An exception is given in the case of extreme necessity, i.e., in the article of death, - and also in a grave danger of proximate death prudently judged, which in law is equated with the article,2 - if another priest is lacking, even one not approved, who can be called or can approach without some grave infamy or scandal about to arise, and to whom the penitent wishes to confess: for then it is the same as if another priest were truly lacking, says Benedict XIV in the constitution Apostolici muneris, February 28, 1745.

A. Therefore in this danger absolution is always valid lest someone perish on this occasion; - but on the part of the confessor it is not licit, nor is the penalty of excommunication avoided, unless another priest is lacking who can be called without great inconvenience, and who does not refuse to hear the confession of the dying person (e.g., because of excessive familiarity with the penitent who is his blood-relative or maidservant), and to whom the penitent does not refuse to confess.

There will be a cause of excuse:

1. if the sick person publicly asks the confessor, while he is bringing Viaticum to him, that he would hear his confession, because the confessor, without scandal and danger of infamy, especially if he were pastor, could not refuse this;

2. if the dying person, without any fault of the accomplice-confessor, altogether refuses to confess before another priest;

3. if without danger of infamy or scandal, or of a sacrilegious confession, the accomplice-priest could not depart, or another could not be called or approach;

4. also probably, if there is present only a priest notoriously suspended or excommunicated: for such a one does not seem to be one who can discharge the office of confessor; and moreover he would not easily be called without infamy or scandal.

On the contrary, absolution is illicit, and excommunication is incurred:

1. if, while another priest is present who is not impeded or can easily be called, the accomplice-priest absolves;

2. if another priest can be called, but the accomplice-priest invents a danger of infamy or scandal where there is none;

3. if the accomplice-priest, as much as is in him, does not employ opportune means so that danger of infamy or scandal does not follow and so that room for confession lies open to another priest, e.g., by not coming under some pretext, or by departing from the house, feigning illness, forewarning the penitent, sending another priest to the sick person, etc.;

4. if there is present a priest who would not himself be exposed to his own infamy, but before whom the accomplice-priest would be defamed: with respect to one person, either there is no infamy, or the accomplice ought to bear it to some extent on account of the fault committed; otherwise it could scarcely happen that, when a priest is present, the accomplice-confessor could not absolve.

B. Danger of death is any gravely dangerous case, whether from within, from illness or childbirth, or from without, from very dangerous sailing, imminent battle, or an inflicted blow. To those in danger can be equated, by a quasi-privilege conceded by extensive interpretation, soldiers who are constituted in a state of military calling-up or mobilization (Sacred Penitentiary, May 29, 1915); likewise from the nature of the thing, those who are in danger of perpetual insanity.

But now many, having gone farther, from epikeia wish to equate with danger of death the case of a penitent who in a remote region, e.g., of the Missions, would greatly fear that he could never, or only after a very long time, have a confessor, unless he confessed to the accomplice. But in the Constitutions of Benedict XIV and in the Code of Law only the case of danger of death is excepted; although nevertheless occurrences in mission regions could not have been unknown to them: "absolution is invalid except in danger of death," says the code; what is clearer?

Therefore the exception does not seem to be extended to other cases, except those which are commonly judged equivalent to death. Interpretation, even if it were of many theologians or canonists, does not suffice to restrict or extend the sense of the law, but only authentic interpretation can do this; especially because a place is not usually given to epikeia in invalidating laws on account of the common good. Therefore no foundation is present for the more indulgent opinion, which consequently is not solidly probable. Indeed, it is altogether important for the common good that missionaries who, because of special circumstances, are exposed to greater danger, should not know for themselves an excessive facility of absolving an accomplice and escaping the consequences of their sin.1

636. The penalty established against the offending confessor. - It is excommunication reserved in a most special manner to the Apostolic See (can. 2367), from which irregularity follows (can. 2261, § 1). For contracting the penalty there is required:

a) on the part of the delict: true or fictitious absolution of one who accused the sin of complicity not yet directly remitted, or who conceals it while he was induced to this by the accomplice-priest;

b) on the part of the delinquent: consciousness of grave sin and knowledge of the censure, yet so that crass or supine ignorance does not excuse from it (Holy Office, January 13, 1892, ad 3; can. 2229). Ignorance can scarcely be given in a priest as to the existence of the censure; more easily as to its extension, insofar as in good faith one could judge that a case was present in which it is licit to absolve an accomplice.

Hence: 1) The penalty is not incurred:

a) if the priest only heard the confession of the accomplice, provided he does not absolve nor pretend to absolve;

b) if the penitent spontaneously concealed the sin of complicity in his confession, or by inculpable forgetfulness, although this does not escape the one absolving. For the privation of jurisdiction and the annexed excommunication are in order to the shameful sin in which the confessor was an accomplice, as the Sacred Penitentiary declared, May 16, 1877.

2. But excommunication is incurred:

a) if the priest simulates and pretends before the penitent himself to absolve him, as is now certain from the repeated responses of the Sacred Penitentiary, July 9, 1751, March 1, 1878, and February 19, 1896, and of the Holy Office, December 10, 1883, and ratified by the Code in can. 2367, § 1: thus, e.g., if he absolves without intention or substantially corrupts the form, or by pronouncing a certain prayer and other words, or by keeping silent, seems to the penitent to absolve by sign or gesture; but not if he dismisses a penitent who has been forewarned with only a blessing, dissembling before bystanders;

b) if the confessor induced the accomplice-penitent not to confess the sin of complicity, whether directly by admonishing him to keep silent, or indirectly by persuading him that the act already perpetrated was not gravely evil, or did not necessarily have to be accused, as, e.g., already known to himself. Indeed, from the recent declaration of the Holy Office, November 16, 1934, one is also to be judged as indirectly inducing if he is "a confessor who, whether within or outside sacramental Confession, has persuaded someone that in shameful things to be perpetrated between them there is either no sin or certainly no grave sin, and consequently afterward sacramentally absolved or pretended to absolve him when he confessed to him about other things only." By this the excommunication is now extended beyond the case of complicity in grave sin.

From the said excommunication regularly only the Apostolic See absolves; and in danger of death and in the more urgent case even a simple confessor can absolve, but only with the burden, under penalty of reincidence, of having recourse, at least within a month, to the Holy See, even if recourse is here and now impossible (can. 2252, 2254, 2367; n. 597, C). Hence the case is treated more rigorously than sins reserved because of a censure.

637. Corollaries. - From the foregoing it follows:

1. A priest who at the beginning of confession does not know the accomplice, but nevertheless recognizes him before absolution, must admonish him concerning the defect of jurisdiction and dismiss him; for by this he himself incurs no infamy.

2. One who in the article of death illegitimately, i.e., while another priest is not impeded, began to hear the confession of an accomplice, is bound to yield the place to another priest and to abstain from absolving; indeed even if he began legitimately, because another confessor was lacking, and such a one arrives or the danger of death has now passed, he must cease, provided this can be done without graver inconvenience.

3. One who absolved an accomplice in danger of death, with necessity urging, cannot, after the danger has passed, hear confession for completing the accusation, if the sin of complicity still remains to be accused.

4. One who doubts whether the penitent is an accomplice must inquire and question insofar as prudence permits; but if he does nothing to solve the doubt, he absolves invalidly, and does not escape excommunication, because the ignorance is crass and supine (Holy Office, January 13, 1892).

638. Observation. - A priest who has unduly absolved an accomplice must have recourse, by himself or through another, e.g., a confessor, to the Sacred Penitentiary, to whom the case must be explained with all circumstances. But the accomplice-penitent incurs no censure nor reservation per se; and a person of this kind is to be received benignly by the confessor, so that he may not blush to confess his own misery, and, after repeated confessions made before the accomplice and the occasion of sinning has been removed, he may be dismissed absolved.

But it could happen that, on the occasion of confession, he had been solicited to sin; concerning which one must now speak.

1. Hence we cannot understand how Fr. Vermeersch could have written, Th. M., III, n. 457: "Noldin... now thinks that one must respond more severely since the canon declares the absolution of the accomplice himself invalid and not only of the sin; but according to the preceding Constitutions the canon which refers back to them can be understood." But precisely according to the preceding Constitutions one must respond more severely, which Cappello also admits, o.c., n. 620. Hence still less do we understand why in the new edition of Noldin's work Fr. Schmitt changed his opinion.

2. This is already clear from the Code itself, which has in can. 884: "in danger of death," but in can. 2367: "in the article of death."

1. The accomplice-priest will easily be able to foresee the case and have recourse to Rome so that, with name concealed and with a fictitious indication of residence, he may obtain the faculty of absolving the accomplice; moreover, even in the opinion of others, if he has foreseen the case, he is bound to this.