Section — Prümmer, Manuale Theologiae Moralis
§ 2. On Solicitation to Shameful Things
460. Preliminary Note. Benedict XIV in the same Constitution Sacramentum Poenitentiae condemned another abuse of the sacrament of penance, namely, solicitation to shameful things. Pius IV444 and Gregory XV445 had already previously made laws concerning this matter. The present discipline is explained in the cited Constitution of Benedict XIV, in the Instruction of the Holy Office of February 20, 1867,446 and in the Code of Canon Law, cc. 894, 904, 2363, 2368. The manner of conducting an examination against soliciting priests is indicated by the Instruction of the Holy Office of July 20, 1890.447 These are the words of Benedict XIV, who commands bishops to proceed "against each and every priest, both secular and regular, ... who should have attempted to solicit or provoke any penitent, whoever that person may be, to dishonorable and shameful things, 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 designated or chosen for hearing confessions, with the simulation of hearing a confession there, whether by words, signs, nods, touch, or writing to be read either then or afterward, or who should have held illicit and dishonorable conversations or dealings with them by rash daring.... Let each and every priest appointed to hear confessions remember, moreover, that they are bound and obliged diligently to admonish their penitents whom they know to have been solicited by others, as above, ... concerning the obligation of denouncing to the inquisitors or the aforesaid local Ordinaries the person who committed the solicitation, even if he is a priest who lacks jurisdiction for validly imparting absolution, or if the solicitation between the confessor and penitent was mutual, whether the penitent consented to the solicitation or by no means gave consent, or a long time has now elapsed after the solicitation itself, or the solicitation was performed by the confessor not for himself but for another person."
The Pontifical Constitutions concerning the absolution of an accomplice and solicitation to shameful things also bind Orientals.448
For a clearer understanding of this law, it is useful to explain: 1. the conditions required in order that the crime of solicitation truly be present; 2. the obligation of denouncing; 3. the manner of denouncing; 4. the penalties which are to be inflicted upon a soliciting priest.
444 Constitution Cum sicut nuper, April 15, 1561.
445 Bull Universi, August 30, 1622.
446 Collect. de Prop. Fide, n. 1282.
447 Ibid., n. 1732.
448 Thus the Sacred Congregation for the Propagation of the Faith, August 6, 1885 (Collect. de Prop. Fide, n. 1640).
461. 1. Conditions Required for the Crime of Solicitation.
Notion. The crime of solicitation is a provocation to a grave sin of lust made by a priest abusing for this end a true or simulated sacramental confession. Therefore it is required:
a) That the provocation be made to a grave sin against chastity.
Solicitation is not judged to be present: alpha) if the provocation was made to another sin, for example, to theft; or beta) if it was made to something dishonorable which nevertheless is not certainly and objectively a mortal sin, for example, if the confessor kissed a woman in passing immediately after confession. For although a kiss is often gravely culpable because of the danger of venereal delectation, scandal, a depraved intention, and so forth, nevertheless, considered objectively, it is not a mortal sin, and consequently that solicitation to shameful things of which we speak here is not judged to be present,449 unless, however, it is established that the kiss was given from lustful affection. Sometimes it can be judged with difficulty whether more or less indecent words uttered by the confessor contain solicitation to shameful things or not. See the various expressions judged by St. Alphonsus.450 - It is not required, however: alpha) that the solicitation be efficacious, or that the person solicited consent to the sin. Hence, for example, a confessor inviting a spouse to adultery would commit solicitation even if the spouse altogether refused this sin. Likewise it is not required: beta) that the confessor immediately solicit the person with whom the sin of lust is to be committed, or that the confessor solicit the person to sin with the one soliciting.451 Hence the crime of solicitation would be present if, for example, the confessor sought the assistance of a brother in order to sin with his sister, or if he incited a young man to sin with some girl; but from positive law there would not be an obligation to denounce a confessor who gave a maidservant making her confession sealed letters to be delivered to her mistress and containing a solicitation. For the maidservant is not a formal accomplice in the sin, while the mistress is not here and now a penitent.
449 Cf. St. Alphonsus, Theol. mor. l. 6, n. 683. Aemilius Berardi teaches the contrary (De sollicit., n. 47): "In the case of which we treat, kisses and touches (less honorable) ought to be considered as mortal; for in practice things of this kind would be done from no honorable motive, and ordinarily not even from mere jest, but to satisfy lust.... Woe if things of this kind and other similar things could be considered as mere trifles and as by no means subject to denunciation!" - Certainly these things are not mere trifles, but are greatly to be reproved. But from this it by no means follows that they are always mortal sins and that they induce a grave obligation under pain of excommunication to denounce the confessor who did such things. For an odious law, such as the obligation of denouncing is judged to be, is of strict interpretation. Father Cerato treats this matter excellently in De delicto sollicitationis, n. 39.
450 Theol. mor. l. 6, n. 704.
451 This is established from the following response of the Sacred Penitentiary of September 2, 1904: "Tibullus, hearing the confessions of women whose husbands are often accustomed to be absent and who do not easily contain themselves, teaches and persuades the same women that they do not sin in the following cases: 1. If, while desiring their own absent husband, they suffer a sensual commotion or pollution. 2. If they desire to experience this same pollution in themselves from ardent love of the absent husband. 3. If they excite pollution in themselves by touches performed upon themselves, provided that they refer these acts to the absent husband. - The Sacred Penitentiary adds to the beloved one in X ... who wrote: that a response concerning this matter had already twice been given by this sacred Tribunal, that acts of this kind are gravely illicit, and that a confessor approving them is to be denounced."
462. b) That the solicitation be made by a priest as confessor.
Hence that crime is not present if a cleric or layman pretends to be a confessor and then provokes the penitent to shameful things. Some authors teach that even a bishop soliciting to shameful things is not to be denounced, since in odious matters, for example, in penalties enacted against priests, bishops are not included unless this is expressly stated. This opinion is perhaps probable. Therefore perhaps there would not be a strict obligation from ecclesiastical law to denounce a soliciting bishop, but there would plainly exist an obligation from natural law to prevent enormous scandal.451a - There must be a true, although implicit, provocation to shameful things on the part of the confessor. Hence several authors probably teach that the obligation of denunciation is not present if the penitent himself solicits and the confessor only consents to this solicitation.452 To the question, "Whether a confessor who has been solicited, if induced by fear he consents to the solicitation, is to be denounced?" the qualifiers of the Holy Office responded on February 11, 1661: "Affirmative, and the negative opinion is not probable"; but this was omitted both in the Benedictine Bull and in the Instruction of the Holy Office given concerning this matter on February 20, 1866.453 It is not likely that St. Alphonsus was ignorant of the opinion issued by the Holy Office on February 11, 1661, and nevertheless the Holy Doctor holds the opposite opinion as more probable. Hence Bucceroni454 and the Vindiciae Alphonsianae teach that there is no obligation to denounce a confessor who from grave fear consented to the solicitation of the penitent but in no way solicited himself. If the confessor freely consents to a soliciting penitent, mutual solicitation is ordinarily present. But denunciation is certainly to be made if the solicitation was mutual between the confessor and the penitent. In this case, however, the penitent is not bound to confess that he himself also solicited.
451a Cf. Cappello, l.c., n. 689.
452 St. Alphonsus, Theol. mor. l. 6, n. 681.
453 Collect. de Prop. Fide, n. 1282.
454 Comm. in Bull. Ap. Sedis, n. 29.
463. In four cases a priest is judged to solicit as confessor, namely, if he provokes to shameful things:
a) In the act of sacramental confession, that is, from the time at which the confession is begun up to and including the words of absolution, or, as it is said, between the two crosses of the confessor. But that confession is judged sacramental which was begun in order to sacramental absolution, even if it is not brought to completion nor perfected by absolution.
b) Immediately before or after confession.
That is, if no other external action intervenes between the confession and the solicitation. Therefore the crime of solicitation is present if, for example, the confessor speaks manifestly obscene words from lustful affection immediately before or after confession; if he touches in a dishonorable manner a penitent who immediately after receiving absolution comes to kiss the hand or stole of the confessor; if he gives the penitent letters to be read afterward in which he solicits to shameful things.
c) On the occasion or pretext of confession.
To solicit on the occasion of confession is to take from confession a motive or opportunity for provoking to shameful things. Hence, for example, if the confessor, learning from confession the proclivity of some woman to lust, asks her where she lives or says to her: Come afterward to my house; and if he then afterward commits a sin of lust with her, the crime of solicitation is present, provided, however, that it is clearly established that the confessor already had during confession the intention of sinning with the woman. But if the confessor does not meet with that woman until after several days, or if he meets with her for another end and then, as temptation gradually arises, provokes her to shameful things, it is not certainly established that there was an abuse of confession, and consequently there is no strict obligation to denounce this confessor.
To solicit under the pretext of confession is to provoke to shameful things under the appearance or veil of confession. For example, the confessor invites the penitent to come into the confessional with the intention that there he may provoke the penitent to shameful things. St. Alphonsus455 asks: "Whether a confessor is to be denounced who agrees with a woman that, in order to elude the household, she should pretend to be ill and summon him to the house to perpetrate the sin?" Although some answer affirmatively, the Holy Doctor responds more probably in the negative. For in this case "it is not verified that the confessor solicits under the pretext of confession, but only that under the pretext of confession he carries out the sin; so that the pretext of confession is then no longer ordered to the solicitation, but to deceiving the household.... But I judge that it is to be said otherwise if the confessor were to solicit outside confession, and the woman were to refuse, fearing defamation, and therefore the confessor were to persuade her to pretend to be ill and to summon him for sinning. For then the confessor would truly be said to solicit the woman under the pretext of confession in order to furnish consent." But so great a difference between the two cases does not seem to be present, since in both the pretext of confession is employed by the accomplices as a means for deceiving others. Hence some teach that a confessor solicits under the pretext of confession only when he employs a simulated confession as a means for inducing into sin that penitent who previously knew nothing concerning the sin to be committed.
d) Even outside the occasion of confession, in the confessional or in another place designated or chosen for hearing confessions, with the simulation of hearing a confession there. The essential words of this clause seem to be with the simulation of confession.
The difference between the simulation and dissimulation of a sacrament must be recalled. The latter is employed to conceal before others that a sacrament was not administered. The former, however, is a deception of the subject of the sacraments himself. Hence the crime of solicitation does not seem to be present whenever confession is dissimulated in order to deceive others, lest they perceive the sin committed or to be committed with the penitent, provided that this is done outside the place of confession. But that crime is present whenever the confessor before the penitent himself simulates that he wishes to hear his confession in some place and, then being there, provokes him to shameful things.
455 L.c., n. 679.
464. 2. The Obligation of Denouncing Those Who Solicit.
Since a confessor by the nefarious crime of solicitation gives the greatest scandal, by natural law itself everyone is bound to strive with all his strength that such scandal be removed. But this can scarcely be done unless the confessor is denounced to his superior. Therefore from natural law itself everyone who certainly knows that solicitation was committed is bound, and indeed under grave sin,456 to denounce the soliciting confessor, at least if the enormous harm which confessors of this kind are accustomed to cause to religion cannot otherwise be averted. The soliciting confessor himself, however, is not bound to denounce himself.457
By ecclesiastical law those who knowingly omit for a month to denounce confessors or priests by whom they were solicited to shameful things are punished with an excommunication latae sententiae reserved to no one.458 Therefore, by the ecclesiastical law now in force, the solicited person alone seems to be bound to denunciation,459 since that person alone is named in cc. 904 and 2368, § 2. In the ancient law, all who certainly knew that solicitation had been committed had to denounce it. A solicited penitent who culpably omits this denunciation for an entire month (to be computed from the day on which the obligation became known) incurs excommunication, from which, however, any confessor can absolve after the denunciation has been made, or after a serious promise of denouncing, or after a legitimate dispensation has been obtained. The confessor, his conscience being gravely burdened, must admonish the solicited penitent to denounce the soliciting confessor.460
456 Cf. Instruction of the Holy Office, 1867, § 3.
457 Holy Office, February 20, 1867.
458 Code of Canon Law, c. 2368, § 2.
459 A sign by no means to be despised of the change made appears from the fact that among the sources of canons 904 and 2368 all the decisions which established the former discipline have been omitted. Thus also teach Noldin, l.c. III, 377; Father Cerato, De delicto sollicitationis, n. 89, while others contradict, for example, Vermeersch, Ferreres, Cappello, and so forth.
460 Code of Canon Law, c. 904.
465. Causes Excusing from Denunciation:
a) The death of the soliciting priest.
Thus the Sacred Penitentiary on April 24, 1884. The reason is that the end of denunciation then ceases. - The obligation of denunciation, however, does not seem to cease if the confessor is now amended or punished, or if the solicitation was already committed a long time ago. But some theologians except the case in which the amendment is so manifest and enduring that no fear of relapse can be had, especially if the confessor has now entered a religious order.461
b) A grave danger to the life, reputation, or fortune of the person denouncing, joined per accidens with the denunciation.
For example, the confessor to be denounced has such friends as are foreseen to persecute the person denouncing most vehemently. The reason is that no positive law obliges with the greatest inconvenience. But an inconvenience which is intrinsically joined with the denunciation does not excuse, such as especially the grave indignation of the confessor denounced.462
c) A dispensation of the Holy Office or the Sacred Penitentiary, which nevertheless is not granted so easily. A bishop cannot dispense in this law.
The Instruction of the Holy Office of February 20, 1867, has the following concerning seeking this dispensation: "If [the person solicited], detained by no impediment, altogether refuses the denunciation, in this case ... the confessor is to be praised who ... has consulted either the Ordinary or the Holy See for suitable provisions." - In the petition the substance of the case must be set forth exactly (especially whether there is question of a confessor of nuns). In addition, the impediments which draw the penitent back from making the denunciation must be declared.463
461 Cf. Berardi, De sollic., n. 284; Tanquerey, De poenit., n. 592.
462 De Smet, Tract. de cas. reserv., n. 165.
463 Cf. Berardi, l.c., n. 359.
466. 3. The Manner of Making a Denunciation. A confessor hearing a case of solicitation must diligently examine: a) whether the person narrating is worthy of belief, for certain women often relate concerning a confessor, from envy, hatred, hysteria, and other sinister causes, things which are altogether false; b) whether all the conditions required for the crime of solicitation are certainly present. For if even the slightest but true doubt remains, the obligation of denunciation does not exist. If the confessor finds that the crime of solicitation was truly committed, he must admonish the penitent concerning the obligation of denouncing, nor does the good faith of the penitent excuse the confessor from admonishing and instructing him. But if the penitent for grave causes refuses to make the denunciation, let the confessor have recourse to the Sacred Penitentiary for obtaining a dispensation from making the denunciation, as has already been said. The penitent, however, can immediately receive sacramental absolution, provided that he seriously promises that he will obey the Sacred Penitentiary.
The denunciation is to be made either to the Holy Office or to the Ordinary of the place (and, when he is dead, to the vicar capitular), but not to the vicar general unless the latter is specially delegated. The competent Ordinary is first of all the bishop of the place where the crime was committed, and then also the proper bishop of the soliciting priest or of the solicited penitent.464 The bishop in this affair acts as a delegate of the Holy Office, or, as it is said, as an inquisitor natus; and consequently the denunciation even of an exempt regular priest must be made to the bishop and not to the regular superiors. Therefore let the person solicited write letters (not anonymous ones) to the bishop, in which the person sets forth the fact of solicitation with the circumstances of place, time, and the name of the soliciting priest. The person ought not, however, to confess that he or she consented to the soliciting priest.465
When the bishop "has received some denunciation concerning the unspeakable crime of solicitation, he will proceed immediately to the diligentiae (that is, to a judicial investigation concerning the reputation of the person denounced and of the person denouncing). For this end, either by himself or through a priest specially delegated by him, he will summon two witnesses, insofar as it can be done, from the ecclesiastical body, but in any case beyond every exception, who know well both the person denounced and each and every person denouncing; and he will judicially interrogate them under the sanctity of an oath concerning speaking the truth and preserving the secret of the Holy Office,466 recording the testimony in writing (according to the following formula...); but he will transmit as soon as possible, directly and by a secure way, to this Supreme Congregation an authentic copy of the testimony of both and at the same time of the respective denunciation." Thus the Instruction of the Holy Office of August 6, 1897, from which it follows that the bishop cannot proceed judicially against the person denounced before he has transmitted the aforesaid documents to the Holy Office and received a response from it. This discipline seems to have been changed today.
Until a second or third denunciation of the same confessor has been made, the bishop can refrain from a judicial process against the accused confessor, whom nevertheless in the meantime he must admonish paternally and watch. Indeed, it is expedient that the bishop impose a salutary penance upon a confessor who even once has certainly committed the crime of solicitation, for example, the making of Spiritual Exercises, or removal from the place in which the confessor so enormously failed in his office.
464 Cappello (De censuris2, n. 449) confidently asserts, but does not prove, that the denunciation must be made to the Ordinary of the place where the person solicited here and now resides, and not to the proper Ordinary either of the soliciting priest or of the solicited penitent or of that diocese in which the offense was committed.
465 A few years ago no denunciations could be made by the clergy or the faithful immediately to the Holy Office, but they had to be made through the bishop. The reason was the danger of losing them in the mail, which indeed could cause very grave inconveniences. Therefore, closed under seal, they had to be delivered to the Ordinary, who, when he had received them thus closed, had to enclose them untouched in another covering (enveloppe, busta) and, having addressed them, send them to the Cardinal Secretary, who himself, with no delay interposed, took care that they were transmitted similarly intact to the Holy Office (Circular of the Secretariat of State, December 1, 1918). This circular was revoked on August 7, 1926.
466 The secret of the Holy Office is called that secret which all officials of the Holy Office and others who treat some matter pertaining to the Holy Office must observe under oath.
467. 4. Penalties for Solicitation. The following penalties are to be inflicted upon a confessor who in a judicial process has been convicted of the crime of solicitation (all of which, however, are ferendae sententiae):
a) suspension from celebrating Mass;
b) suspension from hearing confessions;
c) privation of every benefice, of active and passive voice, and of dignity;
d) in graver cases, degradation.467
It must be noted that the sin of solicitation itself is not reserved, at least by common law; and consequently, if an unhappy priest rightly disposed confesses this sin, he can be absolved by any confessor.468
467 Code of Canon Law, c. 2368.
468 Holy Office, September 13, 1859 (Collect. de Prop. Fide, n. 1181).
468. Scholion. The Penalty Inflicted upon One Denouncing Calumniously. The Code of Canon Law, c. 2363, establishes that the detestable deed of one who falsely denounces before superiors, either personally or through others, an innocent confessor incurs an excommunication reserved in a special manner to the Apostolic See. Therefore this case is reserved both by reason of the censure and by reason of the sin. For canon 894 establishes: "The only sin reserved by reason of itself to the Holy See is a false denunciation by which an innocent priest is accused of the crime of solicitation before ecclesiastical judges." The following conditions are required in order that this sin be truly reserved:
That there be a false denunciation of a confessor as confessor according to the things explained above. Therefore, if someone calumniously denounces a priest without relation to confession, the sin is not reserved.
That the denunciation be juridical, that is, made personally before a competent judge. Therefore the sin does not seem to be reserved if the denunciation was made anonymously or even through a signed letter which nevertheless is regarded as a merely private letter.469
That knowledge of the censure be present; for ignorance indeed excuses from the censure, but not from the reservation of the sin itself, as was already stated above, n. 423.
Accomplices in a false denunciation, for example, those ordering, commanding, giving counsel, asking, promising, threatening, and so forth, commit the same reserved sin under the same clauses.
Concerning absolution from this detestable crime of false denunciation, it is established that the censure cannot be remitted unless the penitent: a) has seriously promised to retract before the bishop and before all others who perhaps heard it the calumnious defamation of the innocent confessor; b) has repaired all the harms from his calumnious denunciation; c) has accepted a grave and prolonged penance. - But if the censure annexed to this crime was not incurred, for example, because of ignorance of it, as is accustomed often to occur, then the harms caused must indeed be repaired according to one's powers, but absolution can be given much more easily. For then those things are valid which are established in the Code of Canon Law, c. 900.470 The reservation ceases, for example, if the penitent is ill and cannot leave the house, or if the faculty of absolving from this sin cannot be sought from the Sacred Penitentiary without grave inconvenience to the penitent.
469 Cf. Noldin, De sacr., n. 393.
470 Pontifical Commission, November 10, 1925 (Acta Ap. Sed. XVII, 583).