§ 1. On the Absolution of an Accomplice

454. The law now in force. The Code of Canon Law, c. 2367, establishes: "One who absolves or pretends to absolve an accomplice in a shameful sin incurs ipso facto 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 receive the confession of the dying person without some grave infamy and scandal that would arise, except the case in which the dying person refuses to confess to another. Nor does one who absolves or pretends to absolve an accomplice escape the same excommunication when the accomplice indeed does not confess the sin of complicity, from which he has not yet been absolved, but conducts himself thus because he was induced to it by the accomplice confessor, either directly or indirectly."

Canon 884 establishes: "The absolution of an accomplice in a shameful sin is invalid except in danger of death; and even in danger of death, outside a case of necessity, it is illicit on the part of the confessor according to the norm of the apostolic constitutions, and by name the constitution of Benedict XIV Sacramentum Poenitentiae, June 1, 1741." These are the words of the constitution: "We forbid and prohibit each and every priest, both secular and regular, ... lest any one of them, outside a case of extreme necessity, namely, in the very article of death and with another priest then also lacking who can discharge the office of confessor, dare to receive the sacramental confession of a person who is an accomplice in a shameful and dishonorable sin committed against the sixth precept of the Decalogue, any authority and jurisdiction to absolve any person whatsoever from fault of this kind having therefore been removed from him by the law itself, and this indeed to such a degree that the absolution, if he should impart any, is altogether null and void.... And nevertheless, if any confessor should dare to act otherwise, let him also incur ipso facto the penalty of major excommunication...." - Afterward the same Pontiff, through the constitution Apostolici muneris of February 28, 1745, explained this law still more. - For explaining these ecclesiastical statutes it is necessary to declare how the following are understood here: 1. a shameful sin; 2. an accomplice; 3. to absolve.

455. 1. A shameful sin is any sin of lust, provided that it is a) grave (objectively and subjectively); b) external; c) certain; d) not yet directly remitted.⁴²² Therefore the following are excluded:

a) Sins against other virtues, for example, theft, homicide, and so forth. Hence a confessor could absolve his accomplice in homicide. But everyone sees how unbecoming even such an absolution would be.

b) Internal sins against chastity, such as morose delectations and desires.

c) Light sins of lust, whether from the imperfection of the act or from an erroneous conscience. Hence if some boy, from an erroneous conscience, should certainly think that impure touches perpetrated by a priest were not a grave sin, he could be absolved by this priest, who would not incur excommunication. Likewise, kisses, although they are often mortal sins in a particular case, nevertheless in this matter are not held to be certainly mortal from the external object, and therefore it must be judged from the attendant circumstances whether a kiss was lustful and consequently a mortal sin or not. While doubt remains, the censure is not incurred.

d) Sins already directly remitted beforehand. Hence, for example, if someone in his youth sinned shamefully with a priest and has already rightly confessed this sin to another confessor and received valid absolution, but now confesses the same sin as free matter to the accomplice priest, he is validly absolved, nor does the priest incur any penalty. But in practice it is greatly to be counseled that a confessor should never hear the confession of his accomplice, because of the danger of temptations and of irreverence toward the sacrament.⁴²³

Note. It is not required that the shameful sin have been committed after the priesthood had already been received. Hence the Sacred Penitentiary taught on January 22, 1879: "A confessor cannot absolve an accomplice with whom he acted shamefully in boyhood before the priesthood, unless he is morally certain that the accomplice has already been directly and validly absolved from the sin of complicity by another confessor."

⁴²² Cf. Holy Office, May 18, 1873.

⁴²³ Hence the Holy Office declared on May 29, 1867: "A confessor is free to absolve an accomplice who has already been absolved from the dishonorable sin of complicity by another confessor; nevertheless counsel must always be given to the confessor in question that, unless necessity compels, he abstain from receiving the sacred confessions of a person, although already absolved from the sin of complicity" (in Bucceroni, Comm. in Bull. Ap. Sedis, n. 37).

456. 2. An accomplice (or a partner in crime, that is, one as though entangled in the same crime) can be either a man or a woman, either pubescent or prepubescent, provided that the person is capable of mortal sin. Nor is it required that this sin have been perpetrated by a lustful act between the priest and the accomplice, but it suffices that both have inwardly and outwardly committed the same grave sin against chastity. Hence, for example, the sin of complicity seems to be present if a husband agrees with a priest concerning committing adultery with his wife, although the adultery does not in fact occur because of the resistance of the wife. In that case the priest cannot absolve the husband, since he is his accomplice.⁴²⁴ It is altogether required that the complicity be formal, and indeed both at the time of the sin and at the time of absolution. Hence, if a priest sins with a woman who resists, who is totally drunk, or who is insane, formal complicity is not present; or if the confessor during absolution does not recognize his accomplice, or even in the case in which he seriously doubts whether the penitent is his accomplice, he validly and licitly absolves. For he ought indeed cautiously to attempt to dispel that doubt, but he is not bound to ask the penitent: Did you commit that sin with me? Likewise, formal complicity is not present if the priest was known as a priest neither in the act of sin nor afterward. Thus, for example, if a masked priest sinned with a woman who never recognized him and afterward absolves this woman from that sin of lust, he does not incur excommunication. For he is not bound to say to this woman in confession: I am that man with whom you sinned. But the intrinsic reason is that the abuse of the sacrament which ecclesiastical law wishes to prohibit is then not present. Thus commonly the modern authors, for example, Hollweck,⁴²⁵ Lehmkuhl.⁴²⁶ Without sufficient reason Gury⁴²⁷ taught the contrary.

⁴²⁴ Thus the truer opinion (cf. Bucceroni, Comm. in Const. "Sacramentum Poenitentiae", n. 69); Noldin-Schmitt (De sacr.¹⁷, n. 370) teaches the contrary, saying: "For incurring the case of complicity, immediate complicity in the shameful action itself is required; cooperation, however proximate, in the shameful sin of another does not suffice."

⁴²⁵ Die kirchlichen Strafgesetze, § 274.

⁴²⁶ Theol. mor. II, n. 1202.

⁴²⁷ Cas. consc. II, n. 617.

457. 3. True or at least pretended absolution is required in order that the excommunication be incurred. Hence this penalty is not inflicted: a) if the confessor only heard the confession of the accomplice, provided, however, that he does not simulate absolution. A confessor simulates or pretends absolution if he leads the penitent himself into error, so that he thinks himself truly absolved; b) if the penitent of his own accord concealed the sin of complicity in confession. But if the confessor directly or indirectly induced the accomplice penitent not to confess the sin of complicity, one who absolves or pretends to absolve his accomplice does not escape excommunication. A confessor would induce directly if he said to the penitent: Take care not to confess that sin; but a confessor would induce indirectly if he persuaded the penitent that such a lustful act previously committed with him and thought to be a grave sin was in fact not gravely evil, or was not necessarily to be accused in confession, because the confessor himself already knew that fact from elsewhere.⁴²⁸

Gross or supine ignorance does not excuse the confessor from this excommunication.⁴²⁹ Therefore in practice, as often as a confessor absolves his accomplice, so often does he incur this censure.

⁴²⁸ Cf. Sacred Penitentiary, February 19, 1896 (Collect. de Prop. Fide, n. 1916).

⁴²⁹ Holy Office, January 13, 1892, ad 3 (ibid., n. 1777).

458. Exceptions from the censure (and the validity of absolution) are had only in a case of extreme necessity. Such extreme necessity never exists if another priest is present, even one not approved, who can morally receive the confession of the penitent. But if another priest is indeed physically present but cannot be called to hear the confession without grave infamy and public scandal, or if he refuses to hear the confession, it is then the same as if no priest were present. A case of extreme necessity is:

a) The article or grave danger of death.

Since in the article or danger of death every reservation ceases, the confessor indeed validly absolves his accomplice; but if any other priest (even one not approved) can hear this confession without grave infamy to the dying person and the accomplice priest and without public scandal, the confessor acts illicitly and incurs excommunication, unless, notwithstanding serious persuasion, the accomplice altogether refuses to confess to another confessor. - Although Benedict XIV and the Code of Canon Law, c. 884, granted the absolution of an accomplice only in the article or danger of death, nevertheless through epikeia this faculty is extended to another case of gravest necessity, namely, if there is present:

b) Gravest necessity, when the ecclesiastical and divine precepts both of confession and of Communion press, and the accomplice cannot find another confessor for a long time.

Thus several modern authors rightly teach as probable, for example, Lehmkuhl,⁴³⁰ Tanquerey,⁴³¹ Bucceroni,⁴³² D'Annibale,⁴³³ Noldin-Schönegger,⁴³⁴ Joseph Alberti,⁴³⁵ Ballerini-Palmieri.⁴³⁶ But the reason is that the positive ecclesiastical law which invalidates the absolution of an accomplice seems in gravest necessity to have to yield both to the divine law of receiving Communion and to the natural law of avoiding scandal. This case can occur in a remote place of the missions to which another priest scarcely ever comes and from which the penitent cannot undertake a long journey to find another confessor. But the absolution granted in this case does not seem to be other than indirect, and consequently the penitent is bound afterward, when it will be possible, to confess the sin of complicity to another confessor.⁴³⁷

If the confessor in good faith, that is, without advertence to the sin of complicity, absolves a penitent who is his accomplice, more probably the absolution is valid. For other sins are directly absolved, but the sin of complicity is indirectly remitted. The reason is that the jurisdiction of the priest seems to be restricted only with regard to the sin of complicity, but not with regard to other sins. Nevertheless, there are some authors who teach that the confessor altogether lacks every jurisdiction over his accomplice who has not yet been directly absolved from the sin of complicity.

c) A confessor indeed does not incur excommunication, but acts gravely illicitly, if he attempts to absolve his accomplice: alpha) when the latter is entirely silent concerning the sin of complicity, provided the confessor did not induce him to be silent (either directly or indirectly), as has already been said; beta) when the latter, because of the danger of grave scandal, is unable to confess elsewhere, provided the confessor expressly admonishes him that he does not will to absolve him from the sin of complicity (which must afterward be declared to another confessor), and that he absolves him directly from the other sins.

Authors do not agree whether the absolution given indirectly in this case from the sin of complicity is valid or invalid,⁴³⁸ but it is probably valid, provided that the other requisites are present.⁴³⁹ For the Sacred Penitentiary gave this response on May 16, 1877: "The privation of jurisdiction for absolving an accomplice in a shameful sin, and the annexed excommunication insofar as the confessor should absolve him, are in relation to the shameful sin itself in which the same confessor was an accomplice." - From these words the following case is resolved: Peter, a priest, committed a grave sin of lust with Tullia. Tullia, accompanied by her mother, presents herself at Peter's confessional. Peter plainly says that he neither can nor wills to absolve her from the sin of lust, which must be declared to another confessor. Tullia insists greatly upon having absolution because, if she were not to go immediately after confession with her mother to Holy Communion, a most grave scandal would arise. Peter then gives absolution from the other sins, admonishing Tullia concerning eliciting an act of perfect contrition and concerning the obligation of declaring the sin of lust to another confessor. Peter does not incur excommunication, because he does not absolve from the shameful sin. But D'Annibale says:⁴⁴⁰ "No one has ever doubted or doubts that it is forbidden to absolve a penitent from the other sins and to send him to another confessor for this one to be absolved." Therefore it seems that Peter ought to have elicited an act of perfect contrition with Tullia, who then could have approached Communion without absolution.

⁴³⁰ Theol. mor. II, n. 1205.

⁴³¹ De poenit., n. 579.

⁴³² Comm. in Bull. Ap. Sedis, n. 87.

⁴³³ Summula Theol. mor. III, n. 324 and n. 38.

⁴³⁴ De poenis eccl.¹², n. 55.

⁴³⁵ Theol. pastor. III, n. 28.

⁴³⁶ Opus theol. V (de sacr. poenit.), n. 655.

⁴³⁷ Cappello, De censuris, n. 182, teaches that this absolution is direct.

⁴³⁸ Cf. Noldin, De poenis eccl., n. 63; Marc-Raus, Instit. mor. II, n. 1783; Van der Velden, Principia Theol. mor. III, 673.

⁴³⁹ Thus also Lehmkuhl, Theol. mor.¹¹ II, 1203 note; Ojetti, Synopsis rer. mor. I⁸, n. 1369.

⁴⁴⁰ Comm. in Const. Ap. Sedis, n. 86.

459. Absolution from the excommunication incurred. A confessor who (apart from the cases indicated above) absolves his own accomplice incurs an excommunication reserved in a most special manner to the Supreme Pontiff, as has been said.

This excommunication is said to be reserved in a most special manner because it is always judged to be excluded from all delegated faculties, even the most ample, unless it is expressly named,⁴⁴¹ as, for example, on the occasion of the Jubilee granted by Pius XI. Gross and supine ignorance does not excuse from this excommunication,⁴⁴² as has already been said. In more urgent cases a simple confessor can indeed absolve from this censure, but then the person absolved must within a month (if this is not altogether impossible) have recourse⁴⁴³ to the Sacred Penitentiary, which is accustomed to impose rather severe penances. Indeed, if a priest has three or more times since the last absolution already obtained^443a absolved his accomplice, he is commanded to lay aside the office of confessor in perpetuity. But since this is often morally impossible, both because of the very great scandal that would otherwise arise and because of the scarcity of priests, it is expedient that in the letters to be sent to the Sacred Penitentiary a supplication be made that the confessor may remain in his office. This supplication is accustomed to be heard if the confessor has proved serious amendment within six or twelve months.

⁴⁴¹ Holy Office, June 27, 1866.

⁴⁴² Holy Office, January 13, 1892, ad 3.

⁴⁴³ Cf. the specimen of this recourse above, n. 426.

^443a Sacred Penitentiary, March 5, 1925.