Article Four. Concerning Solicitation in Confession.

372. Sources. a. To this matter belongs above all the bull of Gregory XV, Universi gregis (August 30, 1622), which extended to the whole world the particular laws already previously enacted on this matter for the Spains. Afterward (February 11, 1661) there were issued sixteen decrees of the Holy Office,¹ by which the pontifical constitutions are declared. To these decrees are added two propositions (6, 7) condemned by Alexander VII. Benedict XIV confirmed all these things by the constitution Sacramentum poenitentiae. Finally, on February 20, 1867, the Holy Office gave an instruction to all archbishops and bishops concerning the observance of the Benedictine constitution, and on July 20, 1890, an instruction concerning the examination to which the solicited person is to be subjected.

b. The Benedictine constitution has these things: Confessors who, 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, have attempted to solicit or provoke any penitent to immodest and shameful things, whether by words or signs or nods or touch or by writing to be read either then or afterward, or with him have had illicit and immodest conversations or dealings with rash daring, must be denounced to the ordinaries of the places.

¹ They can be consulted in Lehmkuhl II, n. 975 (n. 1253).

373. Concerning Solicitation Itself. 1. He is said to solicit to shameful things who attempts to induce another directly to sin against the sixth precept of the decalogue. Therefore he who by some action of whatever kind, whether in itself immodest or in itself indifferent but showing a shameful affection, attempts or intends to excite in another a shameful affection, is said to solicit to shameful things.

a. Therefore, if solicitation is made by words, one must advert whether the words, either in themselves or from the circumstances, signify a shameful affection and provoke to a shameful affection.

a. Therefore, according to the opinion of St. Alphonsus (n. 704), these words contain solicitation: I would marry you, if I were a secular; on the contrary, these words: remember me, because I love you from my heart, can have either a shameful sense or also another indifferent sense, wherefore judgment must be made about them from the circumstances; for if it were established that the confessor outside confession fosters a shameful love toward that person, they would contain solicitation.

b. If the confessor enjoins on the penitent that she await him at home, or asks her where she lives, or invites her to come alone to the house of the confessor, the words in themselves are indifferent; but if afterward from the circumstances they are known to have been said from a depraved intention, they contain an inchoate solicitation. Yet in order that words of this kind be condemned as shameful solicitation, it is required that, besides the immodest cause, no other prudent cause can be supposed on account of which they were spoken by the confessor.

g. If the confessor in confession praises a woman for beauty and charm, the words in themselves are serious and prudent, e.g., to warn the penitent about the danger of sinning, or they can have proceeded from imprudence and levity, or finally from a depraved intention; it is clear that only if they give off a libidinous affection, and this clearly appears, do words of this kind contain solicitation.

d. If a confessor, hearing the confession of a maidservant, praises the beauty of her mistress, recommending that she come tomorrow for confession, from these circumstances he is to be judged in the prior case; yet St. Alphonsus rightly adds (n. 703) that this praise is more easily to be taken in an evil sense, because prudently scarcely any other reason for this thing can be imagined.

b. If the confessor solicits by deed, e.g., because he touches with lightly immodest or obscene touches or kisses during confession, the matter is to be judged according to the same norm; for since acts in themselves are indifferent or only lightly sinful, it ought to be gathered from the circumstances whether there was present a depraved intention of soliciting and of proceeding to further things.

Circumstances of this kind are these: if the priest is known to be prone to lust, if the touches were forced or repeated more often, if afterward sin followed, etc.

c. He also is said to solicit who has immodest conversations or dealings with the penitent; therefore, who mixes shameful colloquies with the penitent, whether the matter to be acted upon is depraved (dealings) or only shameful conversation is had with him (conversations), as if he asks the penitent who is accusing herself of a shameful action whether it pleases her to be engaged in those things, what acts she exercises, etc.¹

2. A priest who has solicited any person in confession must be denounced to the ordinary.

The reason for this precept is that a priest who does not fear to abuse the sacrament of penance for so great a crime is suspected of heresy; but one who is suspected of heresy, from the ancient laws, ought to be denounced to the inquisitors and to clear himself from heresy. Moreover, solicitation is a most grave sin, not only against chastity, but also against religion; and if a pastor solicits his faithful, he also sins against justice.

¹ Cf. Ballerini-Palmieri V, n. 725 s.

374. Conditions Under Which Solicitation Must Be Denounced. In order that the obligation of denouncing exist, four conditions are required:

1. There must be solicitation to a shameful sin, not to any other sin whatever; yet it makes no difference whether the confessor solicited a male or a female, whether pubescent or prepubescent, whether he solicited to a sin to be committed with himself or with another or alone, or whether finally he solicited the penitent immediately or through the penitent mediated another person to a sin to be committed with him.

2. The crime of solicitation must be certain; wherefore not only must the word or deed of the confessor be certainly established to the penitent, but it must moreover be certain that it contained true solicitation; for since a confessor possessed of his certain fame cannot be deprived of it through denunciation unless the solicitation is established with certainty.

3. The crime of solicitation must be gravely culpable; here it must be noted that light or indifferent acts by which the confessor solicits can be gravely sinful either from libidinous affection or from a depraved intention by which he attempts to draw another to grave sin; but if he intended to induce the penitent only to light acts, he does not commit the sin of solicitation that must be denounced.

4. The crime of solicitation must have been committed in confession or with relation to confession; wherefore solicitation is not to be denounced if it has no relation to confession, even if it was committed in the administration of other sacraments.

375. Circumstances of Solicitation. There are four circumstances in which solicitation has that relation to confession such that the confessor must be denounced: a. if it occurs in the act of sacramental confession; b. if it occurs immediately before or immediately after; c. if it occurs on the occasion or pretext of confession, even if confession does not follow; d. if it occurs outside the occasion of confession in the confessional or in a place destined or chosen for hearing confessions, with simulation of confession. The individual circumstances must now be explained.

1. In the act of sacramental confession he solicits who interposes solicitation between the beginning of confession (when the priest blesses the penitent) and absolution. But a priest is considered to solicit in the act of confession when the confession has been begun, even if it was not completed or the penitent, for any cause whatever, was not absolved.

2. Immediately before or immediately after: if between the solicitation and the sacramental confession no interval, or no other act, intervenes which is not referred as a medium to the solicitation. But it can happen that one who is not to be denounced under this head must be denounced under another clause.

a. Therefore he must be denounced who, in the place of confession, solicits a woman asking for confession to be made immediately; or who solicits a woman who, after confession, approaches to kiss the hand of the confessor; or who, immediately after confession, leads a boy into his room and solicits him there. But solicitation made another day after confession, although made after the confessor heard another penitent after the deed, is not considered made immediately after confession, provided the confessor in confession did not manifest his depraved mind, as if, e.g., he said: wait for me a little while, and after a short time came and solicited.

b. If the confessor, after confession has been completed, outside the confessional, before he solicits, treats with the penitent about some business of which no word had yet been made in confession, the circumstances must be considered for judging the matter. If it is established that solicitation was already primarily intended beforehand and the business was chosen only as a means to complete it, solicitation to be denounced is had.

3. On the occasion of confession: if the penitent approached for confession to be made here and now, even though the confession itself, on account of the solicitation made by the confessor, did not in fact follow.

a. Therefore a confessor is probably not to be denounced who, asked by the penitent outside the place of confession to hear her confession the next day or even in the evening (when she asks in the morning), solicits her, whether confession afterward follows or not; for he solicited not on the occasion of confession, but on the occasion of a request for confession.¹ But a confessor must be denounced who solicits a person inviting the confessor to hear her confession immediately; for it is not only he who solicits in the confessional who solicits on the occasion of confession, but also he who solicits outside the confessional when confession is requested to be performed at once, so that confession and the request are morally one.

b. Nor is the confessor who, from confession, recognizing the soul of the penitent as inclined to shameful things, thence takes an occasion for afterward soliciting her, to be considered to have solicited so much on the occasion of confession as because of knowledge taken from confession.² But if from some external sign it is established that the confessor already in the confessional conceived the will of afterward soliciting, as if he asks the man inclined to shameful things where he lives, he must be denounced, not indeed because he solicited on the occasion of confession, but because he began the solicitation immediately after confession and afterward completed it.

Note. In confession, immediately before or after confession, and on the occasion of confession, he also is considered to solicit who, in the aforesaid circumstances, begins an act of solicitation which afterward he completes, as if in those circumstances the confessor gives letters provoking to shameful things to be read afterward; if he asks the penitent where she lives; if he invites her to come to the house of the confessor, etc., and afterward he expressly solicits. Yet it must be established morally that the depraved intention was already present in those circumstances; for it can happen that lust burst forth only afterward, when the sin was committed.

4. Pretext of confession is a false allegation of confession on the part of the confessor, which he abuses for soliciting, even if confession does not follow; as if a priest, visiting a sick woman, says that he wishes to hear her confession, and then, after sending away the others, solicits the sick woman.

5. In the place of confession with simulation of confession, but outside the occasion of confession: solicitation to be denounced is had even then, when the penitent has come for any end whatever, whether good or evil, e.g., to seek counsel or to tempt the confessor himself, provided the solicitation occurs in one of the three indicated places, namely either in the confessional or in a place destined for hearing confessions, or here and now chosen for this, and with simulation of confession.

a. These words, with simulation of confession, are to be referred not only to the last, but to all three members: and in the confessional and in a place destined for confession ordinarily there is simulation of confession by the very fact that the confessor and the penitent are in this place; but as to the third, it does not suffice that the confessor and the penitent are in a place here and now chosen for hearing confession and speak secretly with each other, but outwardly they must conduct themselves in such a way as to be considered to be instituting confession. Hence a confessor is not to be denounced who, sitting in a confessional, solicits a woman before she kneels.

b. A place destined for hearing confessions would be, e.g., a cell in which penitents who are hard of hearing are accustomed to be heard; a place chosen for hearing confessions for a certain time or for certain circumstances, such as a small room, sacristy, choir, where, e.g., during the time of a great crowd, confessions are heard. The room of the sick person or the bed on which the sick person lies is, by universal usage, a place chosen for hearing confessions in these circumstances.

¹ Ballerini-Palmieri V, n. 717.

² D'Annibale III, n. 367 with many others, who nevertheless note that the practice of the Roman congregations is different.

376. Concerning the Priest Soliciting. 1. Who are to be denounced. All priests of whatever dignity, both secular and religious, are to be denounced, provided they have truly and certainly committed the crime of solicitation.¹

From the sources alleged above, however, it is established how far the obligation of denouncing a soliciting priest extends, namely that he must be denounced even:

a. who lacked jurisdiction (e.g., on account of reservation or complicity), provided he solicited in confession;

b. who alone solicited and the penitent only consented in deed and manifested consent externally, the execution of the shameful plan having been delayed to another time;²

c. who solicited already a long time ago; whose crime remained wholly occult; who has set out into a distant land; who has already amended;

d. who solicited a penitent not adverting to the malice of the sin to which she was solicited;

e. even if he immediately repented of the solicitation made, or if, after beginning the solicitation, he immediately desisted.

2. A priest soliciting is indeed punished with grave penalties, which nevertheless are all ferendae sententiae;³ but the crime itself of solicitation is not reserved, unless perhaps somewhere the bishop has reserved it to himself. Therefore the priest soliciting, provided he is disposed, can be absolved by any confessor, but he must be warned not any longer to hear the confessions of the solicited person, even if she herself was not an accomplice, both on account of the great indecency of the matter and on account of the danger of relapse.

¹ Whether also bishops who solicit are to be denounced is not established; but laymen or clerics not yet priests, who pretend that they are confessors and solicit in confession, by force of the words of the law, which speaks only of priests, are not to be denounced.

² Holy Office, February 20, 1867.

³ Cf. cn. 2368, 1.

377. Who Ought to Denounce Confessors Soliciting: The solicited penitents themselves, and this even if someone else has already denounced him, even if the solicitation was mutual or the penitent consented to the solicitation; nor does there exist in this case any danger of defaming oneself, since the solicited are not interrogated about the consent given.

a. The prepubescent, or rather solicited persons who do not yet apprehend the malice of the solicitation, are denounced when they come to knowledge of the crime committed by the priest.

b. Besides the solicited person, no one else is obligated to make denunciation in the new Code. - The confessor soliciting is not bound to denounce himself; but one who accuses himself spontaneously is treated more leniently by the ecclesiastical judge. For priests who confess their crime spontaneously are admitted with congruous abjuration and salutary penances, with the counsel or precept added that they abstain from hearing the sacred confessions of the solicited persons; nor are they customarily affected by the other penalties set forth in the Clementine constitutions, even if later they are denounced.¹

¹ Instruction of the Holy Office, February 20, 1867.

378. Concerning the Solicited Penitent. Unless he incurs it by natural law, certainly by the grave precept of the Church he incurs the obligation, under penalty of excommunication (reserved to no one), within a month from knowledge of the obligation, of denouncing the soliciting priest either to the local ordinary or to the Congregation of the Holy Office.¹

1. If the solicitation is established, the confessor, with the conscience of the solicited penitent being gravely burdened, must warn him about the obligation of denouncing.² The confessor is bound by positive ecclesiastical law to give this warning under grave sin, even if the penitent is in good faith and is foreseen not to be about to satisfy his obligation, except only in the case of death, lest the penitent be cast into danger of damnation. But if here and now, on account of a just impediment, he cannot denounce, he ought to warn him that the obligation urges when the impediment ceases.

a. The confessor is not bound to interrogate his penitents whether they were solicited, unless from prudent suspicion arises from their accusation of solicitation having been made. But confessors who solicit are never bound themselves to warn the solicited person about the obligation of denouncing, even if afterward she returns to the one soliciting for confession.

b. The penitent must be warned about the obligation of denouncing, even if it is foreseen that he will refuse denunciation, or rather even if only a slight hope of success shines forth, because the common good requires it, and a private good ought to yield to the common good. Yet one must not affirm that the common good always and in every case requires it; for whenever the Church dispenses from making denunciation, she does this because it could not be done if the law of nature or the common good were always to require it. Therefore when, from the crime committed, common harm no longer threatens, as if the confessor hears no more confessions and the penitent is foreseen not to be about to obtain them, the warning also can be omitted.³

2. The obligation of denouncing is a personal burden and therefore to be fulfilled by the solicited person himself, and indeed in judicial form; wherefore the penitent does not satisfy the obligation by private letters given to the bishop. Further, this obligation is never extinguished except by the death of the soliciting priest; hence if denunciation cannot be made on account of some impediment, after the impediment has been removed the obligation again urges.

Before judicial denunciation can be made, the solicited person approaches the ordinary, or, if he cannot do this, sends private letters either by himself or through the confessor to him, in which he sets forth all the circumstances of the solicitation and signs his own name with the place of habitation. Then the ordinary either sends the mandate for making the denunciation, if there is need, or gives another instruction.

3. Solicited penitents who are certainly bound to make the denunciation cannot be absolved unless they have first satisfied the obligation of denouncing, or at least have promised that, within a month if they can, they will satisfy their obligation. Wherefore if the penitent shows himself prepared to denounce, and no prudent doubt arises concerning the seriousness of his will, absolution can at once be granted, especially if the necessity of communicating urges; but if it must be feared that the denunciation will be omitted, absolution is to be deferred until the denunciation has actually been made.

4. But he who, within a month from knowledge of the obligation, does not denounce without an excusing reason or culpably, incurs an excommunication reserved to no one, from which therefore any confessor can absolve a disposed penitent.

a. But in order that, after the month has elapsed, he incur the excommunication who has not made the denunciation within the month, it is required: a. that he knew the obligation of making denunciation within a month; b. that he knew an excommunication was attached to the omission.

b. If the solicited person culpably delayed the denunciation beyond a month, but now seriously promises that, as soon as possible, he will make the denunciation, he can be absolved from the censure, because in the cited canon it is said: not to be absolved, unless he seriously promises that he will satisfy. But if afterward, with changed will, he does not denounce, the censure does not revive, because there is nothing in the law concerning reincidence.⁴

5. False and calumnious denunciation of an innocent confessor concerning the crime of solicitation is a sin reserved by reason of itself to the Roman Pontiff, with an excommunication latae sententiae reserved in a special manner.⁵

a. The reserved sin of false denunciation is judicial denunciation, not private. A penitent who confesses this crime must be warned to retract the calumny and repair the harms which the priest suffered from it.

b. The delinquent cannot be absolved from this censure in any case unless he has formally retracted the false denunciation and repaired, according to his powers, the harms that followed from it. Further, a grave and lasting penance must be imposed on him.⁶

6. Since the crime of false denunciation of a priest concerning solicitation is reserved also by reason of itself, i.e., also as a sin alone and not only as a censure, it follows that a penitent who does not incur the censure on account of ignorance nevertheless cannot be absolved from the sin outside danger of death without the special faculty of the Roman Pontiff.

¹ Cn. 2368, 2.

² Cn. 904.

³ Ballerini-Palmieri V, n. 743.

⁴ Cf. De poenis, n. 103.

⁵ Cn. 894; Cn. 2363.

⁶ Cn. 2363.

379. Concerning Causes Excusing from This Obligation. For a just cause the solicited person is excused from making denunciation; for this precept, although most grave, is nevertheless at times a positive precept of the Church, which does not oblige with very grave inconvenience. If, however, the denunciation must also be made by the law of nature, namely where the solicitation brings on public scandal or common harm, no very grave inconvenience excuses from making it.

1. Besides impossibility, probable danger of grave harm in the goods of life, reputation, or fortune excuses.

a. If the solicited person can neither approach the bishop nor write a letter to him on account of ignorance of letters, and present another obstacle to denunciation, he is excused on account of impotence; but the confessor is not bound to make the denunciation for the penitent unless grave public harm threatens.

b. One is not bound to denounce a distinguished benefactor from whom he has received extraordinary and necessary support, which he would lose on account of the denunciation; nor a priest closely joined by intimate friendship or by consanguinity, unless the law of nature demands it on account of the common good.

2. Fear of incurring the indignation of the one soliciting does not excuse, nor the obligation of gratitude toward the one soliciting, nor the shame which the solicited person must undergo in making the denunciation.

380. Manner of Acting with a Solicited Penitent. A confessor to whom a case of solicitation is brought ought to proceed in this way.

1. Since it not rarely happens that women, from ignorance or from hatred, envy, or another depraved motive, calumniate priests who are altogether innocent, the confessor should see whether the person is worthy of faith; and if he has doubt concerning this matter (which he will almost obtain whenever the person is prepared on her own initiative to make the denunciation), he should admonish her about the atrocity of the crime and about the grave penalty which is inflicted upon false accusation. But he should take care not to inquire about the name of the one soliciting.

2. He should diligently examine whether all the conditions are present which render the obligation of denouncing certain. And if he cannot judge this immediately, he should have the penitent return to him on another day. But if the solicitation is truly established, he should warn the penitent about the obligation of denouncing.

3. But if the penitent refuses to denounce, he should inquire whether there is an excusing cause. If an excusing cause is in fact present, denunciation can per se be omitted or at least delayed. Therefore if the penitent promises that he is willing to denounce when the excusing cause ceases, he can meanwhile be absolved.

Frequently penitents refuse to denounce because they fear that the one denounced will come to know the one denouncing. Wherefore the confessor should warn them that the one denounced cannot easily learn the person denouncing, first because it is generally granted that the denunciation be made by the agency of the confessor alone, then because the names of the denouncers are never manifested, and finally because the delinquent is ordinarily called to judgment only after the third denunciation.

4. The denunciation to be made must be made to the ordinary of the place in which the penitent is staying, even if the confessor soliciting belongs to another diocese, or to the Congregation of the Holy Office. The ordinary of the place then transmits the sworn denunciation to the bishop of the priest soliciting. But if it cannot be made to this ordinary, it must be made to the ordinary of the confessor soliciting.

5. Judicial denunciation must be made orally before the ordinary or his delegate with a notary intervening; sometimes, however, it is granted that it be made before a delegated priest with no notary intervening, or even before the confessor delegated in the confessional,¹ to whom the appropriate instruction is customarily transmitted by the ordinary for receiving it.

6. If the penitent, without a just cause, does not wish to make the denunciation, the confessor should try to induce him with suitable motives to make it; but if nevertheless he wholly refuses, he should not absolve the penitent, but should have him return to him at another time. Meanwhile he should have recourse either to the ordinary or to the holy see (the Penitentiary or the Holy Office), and, after all the circumstances have been set forth, with the name of the penitent nevertheless suppressed, he should ask for a suitable remedy. For either he is dispensed altogether from making denunciation, or it is granted that the whole matter be denounced by the agency of the confessor.

Lest the confessor who makes the denunciation for the penitent come to the knowledge of the priest soliciting, he should induce the penitent himself to write the name of the soliciting priest, and to bind his own name in a written schedule in the same envelope with those letters.

¹ The manner to be observed according to the prescription of the Holy Office of July 20, 1890, in receiving the denunciation, is found in the Acta S. Sedis, Appendix to vol. 25, to which, on August 6, 1897, was added an instruction concerning the care to be employed in causes of solicitation.