§ II. On Absolution of an Accomplice

The principal documents pertaining here are: canon 884, which refers to the Apostolic Constitutions; the Constitution Sacramentum Poenitentiae of Benedict XIV;¹ the Brief Apostoli muneris of Benedict XIV;² the Constitution Apostolicae Sedis of Pius IX;³ canon 2367.

Moreover, considering the documents cited, two things must be distinguished here, namely a certain subtraction of jurisdiction and an excommunication reserved to the Apostolic See in the most special manner. The former is established against the confessor accomplice who absolves the other accomplice party.

¹ June 1, 1741.

² February 8, 1745.

³ October 12, 1869.

1. Subtraction of jurisdiction. Canon 884 establishes: "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 the Constitution Sacramentum Poenitentiae of Benedict XIV, June 1, 1741." We shall speak first of the requisites for subtraction of jurisdiction to have place; then of the way in which subtraction of jurisdiction must be understood; finally we shall assign exceptions to the general rule.

1. Requisites for subtraction of jurisdiction to have place. A sin is required:

a) Against chastity. It does not matter whether it is a sin of deed, of sight, or of speech² (St. Alphonsus, VI, 554).

b) Committed with another, whether with a male or with a female, whether with one mature or one immature, and, as the Sacred Penitentiary³ responded, whether before or after the priesthood was received. Nor does it stand in the way that in the latter case the danger of relapse has almost vanished; for a law which is founded on the presumption of common danger persists, even if in a particular case the danger has ceased. There is added the fact that, besides the danger of relapse to be avoided, other ends of the law are also assigned, such as the indecency of a confession of this kind.

c) Grave, and indeed subjectively and externally. It is nevertheless sufficiently externally grave if it shows grave internal malice (St. Alphonsus, VI, 554).

d) As grave and known to the other party, and indeed at the time when the sin is committed. Otherwise there is not complicity, or participation in the same grave external sin. Moreover, this condition is presumed to be present if the case concerns a mutual act of itself gravely influencing venereal commotion. But if the discussion is of an act not gravely influencing of itself, but posited with lustful intention or with venereal commotion, that intention or commotion must become known from the circumstances; otherwise the act is indeed common, but it is not common insofar as it involves grave sin.

e) Such in both parties as has been described. Hence the case is not present if the other party did not consent, or was ignorant of the malice, even if he or she was led into that error by the accomplice; nor is it present if the sin was committed with one sleeping, with one drunk, or with one not yet possessing the use of reason (St. Alphonsus, VI, 554).

f) That the confessor and the penitent know themselves as accomplices, whether previously, for example at the time of the sin, or now. This is required with sufficient probability, because otherwise it can happen that the confessor would have to defame himself before the penitent. Suppose some person presents herself to the confessor, ignorant that she has sinned with that priest, while the confessor notices that the person is present with whom he perpetrated lust. Otherwise one must speak if the confessor and penitent previously knew themselves as accomplices, and only the penitent did not notice that he or she was confessing to the confessor with whom he or she had sinned.

g) That the aforesaid things are at least morally certain. Doubt sometimes concerns the gravity of a touch, and so forth.

Corollary. When the conditions have been fulfilled, subtraction of jurisdiction has place:

a) Even if the confessor is ignorant of the law which establishes the subtraction of jurisdiction; for "ignorance of invalidating or inhabilitating laws does not excuse from them unless something else is expressly said" (can. 16, § 1), or unless the incapacity is established only by way of penalty, which does not have place in the case, since the law was principally issued so that relapses might be guarded against.

b) Even if the confessor does not recognize the penitent; for if ignorance of an inhabilitating law does not excuse from it, still less does ignorance of the fact on which the application of the law depends. Nor should you object that Benedict XIV takes jurisdiction away from the confessor who "dares to receive the sacramental confession of the accomplice person," but that in our hypothesis rash daring is lacking. For the Supreme Pontiff subtracts jurisdiction from the confessor "lest he dare to receive the confession."

c) Even if the penitent does not notice that he or she is confessing to the confessor with whom he or she sinned, provided nevertheless that the confessor and penitent previously knew themselves as accomplices. For when this latter hypothesis has been fulfilled, the confessor admonishing the penitent does not defame himself.

¹ Cf. De Smet, De absolutione complicis et sollicitatione, 2nd ed.

² Holy Office, May 28, 1873.

³ January 22, 1879.

2. The way in which subtraction of jurisdiction must be understood. a) The confessor certainly cannot directly absolve the accomplice from the sin of complicity as long as another confessor has not yet directly absolved him or her from it. After the sin has been directly remitted, even the confessor accomplice validly absolves directly from it (St. Alphonsus, VI, 555). I said validly, because commonly he acts illicitly; for the Holy See is accustomed to enjoin on one who, when the sin of complicity has not yet been directly remitted, absolves or feigns to absolve an accomplice, that he abstain in the future from hearing the confessions of the accomplice.

b) It is disputed whether jurisdiction has also been taken away with respect to other sins, or whether it persists with respect to them, so that the confessor can absolve directly from the others, and thus indirectly from the sin of complicity. Some affirm simply. Others affirm if the penitent declares the sin of complicity, otherwise they deny. Others simply deny, or judge that jurisdiction persists with respect to other sins. This opinion is sufficiently probable, both because the Constitution Sacramentum Poenitentiae declares that jurisdiction has been taken away "for absolving any person whatever from a fault of this kind; so indeed that absolution, if he shall have imparted any, is altogether null and void," namely absolution from that sin, since as not direct it is null as such, so that the sin must be confessed anew and remitted directly; and because the Sacred Penitentiary responded¹ that "privation of jurisdiction ... is in order to the shameful sin itself in which the same confessor was an accomplice." This opinion is at least probable, so that the Church supplies for caution.

¹ May 16, 1877.

3. Exceptions. a) The confessor validly absolves even from the sin of complicity in danger of death; likewise in the same danger he licitly absolves if necessity urges (the cited documents). It is said:

1. In danger of death; who are said to be in danger of death, see n. 370.

2. In danger of death he also absolves licitly if necessity urges, that is: 1. if another, even one not approved, cannot be used without danger of infamy or scandal (can. 2367, § 1).¹ Nevertheless, fear of infamy to be incurred before that one confessor, in the confession itself, does not excuse. Moreover, the priest accomplice is bound under grave obligation, if it can be done, to remove or anticipate the danger of infamy or scandal, for example by pretending illness or by going away for some time. Nevertheless, danger of infamy or scandal will easily be present if only one not approved can be called; still more, if only one suspended or excommunicated, known as such, remains. There are even those who judge that the obligation of calling the latter persons is simply absent. Necessity urges: 2. if another refuses to receive the confession; 3. if the penitent refuses to confess to another, for example to a blood-relative, or manifests grave repugnance to doing so, in which case there is danger of sacrilege (can. 2367, § 1). The reason for 2 and 3 is that then another priest is morally absent.

Corollary. One who has begun a confession licitly continues and directly absolves the accomplice from the sin of complicity, even if now another priest can receive the confession: 1. if he began licitly, that is, when another could not conveniently be present, even perhaps because of preceding culpable negligence by the one beginning; 2. with sufficient probability, if he began illicitly, that is, when another could be present. As regards excommunication, however, in the case one must speak thus: if he began licitly, he does not incur excommunication, and this is probable even if he culpably neglected to anticipate the danger which, when he began the confession, could no longer be anticipated. If he began illicitly, that is, when another could conveniently be present, he escapes or does not escape excommunication according as before absolution he repents or does not repent of the sin committed.

b) It is disputed whether the confessor ever validly absolves from the sin of complicity even outside danger of death, for example if the accomplice would for a long time, or at least for a very long time, lack the occasion of confessing to another. Now it seems this must be denied. For the law expressly and repeatedly declares that only danger of death is excepted. So also canon 884. Likewise the Holy Office declared² that jurisdiction is taken away "unless the most extreme necessity entirely urges, namely if in the very article of death another priest is lacking." Finally, the end of the law, which is that priests be turned away from sin and relapse, advises that the law be urged, even if the penitent sometimes suffers some harm from it. For the rest, that harm scarcely deserves notice, since the penitent in the cases here supposed can be absolved directly from other sins, and thus indirectly from the sin of complicity, as we shall now note.

c) As we said, the confessor enjoys jurisdiction over the other sins of the accomplice (n. 410). Moreover, if a truly grave reason is present and another cannot be approached without grave inconvenience, it is lawful to absolve the accomplice directly from other sins, indirectly from the sin of complicity. A truly grave reason, considering the most severe law which forbids absolution of an accomplice, is, for example, an annual confession to be made, Easter Communion, or another Communion which cannot be omitted without danger of infamy or scandal. Nevertheless, in the case the penitent can also be content with perfect contrition; indeed, this of itself is to be preferred. A grave cause on the part of the confessor is had if the penitent knows the confessor accomplice only by face, not by name, and denial of absolution perhaps brings danger that the name of the confessor will afterward be inquired into.

¹ Constitution Apostolici muneris, § 3.

² February 20, 1867.

II. Excommunication. Canon 2367 establishes: one absolving or feigning to absolve an accomplice in a shameful sin incurs by the very fact an excommunication reserved in a most special manner to the Apostolic See. And this also in the article of death, if another priest, even one not approved for confessions, can receive the confession of the dying person without some grave infamy and scandal going to arise, except the case in which the dying person refuses to confess to another (§ 1). The one absolving or feigning to absolve an accomplice who indeed does not confess the sin of complicity, from which he or she has not yet been absolved, does not escape the same excommunication if he or she conducts himself or herself in this way because he or she was induced to this either directly or indirectly by the accomplice confessor (§ 2). We shall speak of the requisites for excommunication to be incurred, and of absolution from it, with some things to be noted added.

1. Requisites for excommunication to be incurred. It is required:

a) That, as regards the sin, the things set forth above in n. 409, under I, 1 be present.

b) That the sin of complicity has not yet been directly remitted by another confessor (cf. can. 2367, § 2).

c) That the confessor either has directly absolved or feigned to absolve the accomplice from the sin of complicity, or has absolved or feigned to absolve the accomplice who keeps back the sin of complicity, but does so because he or she has been induced to this by the confessor, either directly or indirectly. It is said:

a) Either has absolved or feigned to absolve; hence it does not suffice that he only received the confession. The fiction, moreover, is required with respect to the penitent, in other words, it is required that with respect to the penitent he acted in such a way that the latter ought to judge that he or she was being absolved. It is not required, nor does it suffice, that only others ought to think that the penitent was being absolved. But it does not matter whether the confessor simulates absolution, that is, pronounces the form without the intention of absolving, or dissembles the denial of absolution by reciting some prayer, or by pronouncing other words, or even by keeping silence, yet in such a way that because of signs or gestures of the hands he seems truly to loose the penitent from sins.

b) Or has directly absolved or feigned to absolve the accomplice from the sin of complicity. Hence he does not incur excommunication who, after the sin of complicity has been declared by the penitent, signifies to the penitent that he can absolve only from other sins, but not from that sin. Nor does one incur excommunication who absolves or feigns to absolve an accomplice who keeps back the sin of complicity, except in the case now to be assigned.

c) Or has absolved or feigned to absolve an accomplice who keeps back the sin of complicity, but does so because he or she has been induced to this by the confessor, either directly or indirectly;¹ although in the case the confessor neither directly absolves nor feigns to absolve directly from the sin of complicity, nevertheless excommunication is contracted.

d) That the confessor, if he absolved the accomplice, has acted objectively illicitly. Moreover, it was set forth above when the confessor licitly absolves the accomplice.

e) That the confessor has both sinned subjectively gravely and known the censure and adverted to it. Defect of grave subjective fault can arise, for example, from ignorance of the law forbidding absolution, from the fact that he is ignorant that an unconsummated sin suffices, or does not know that the person confessing is an accomplice. Ignorance of the censure excuses, even if it is vincible, provided it is not affected, crass, or supine (can. 2229).

¹ "The confessor directly induces the penitent when he positively and explicitly forewarns him or her about keeping silent concerning the sin of complicity, because, for example, he already knows it and its declaration would be useless. But he induces indirectly when the confessor tries to persuade the penitent either that the shameful action committed with him is not a sin, or at least is not so grave that he or she ought to be disturbed about it; whence the penitent concludes that it is lawful for him or her not to declare such a sin, and really abstains from declaring it" (Sacred Penitentiary, February 19, 1896).

2. Absolution from the excommunication can be granted as follows:

a) In more urgent cases any confessor can absolve from this excommunication in the sacramental forum, with the burden enjoined of having recourse, under penalty of reincidence, within a month, at least by letter and through the confessor, if this can be done without grave inconvenience, the name being kept back, to the Sacred Penitentiary and of standing by its mandates (can. 2254, §§ 1 and 3). It is said:

a) Confessor, that is, every priest approved for hearing confessions.

b) In more urgent cases; a more urgent case is had if the censure cannot be observed externally without danger of grave scandal or infamy, or if it is hard for the penitent to remain in the state of grave sin for the time necessary for the competent Superior to provide (can. 2254, § 1).

c) The confessor must, under penalty of reincidence, impose the burden of having recourse to the Sacred Penitentiary within a month from the absolution received. Recourse is always necessary, so that the disposition of canon 2254, § 3, by force of which sometimes the penitent can be absolved without the burden of having recourse, cannot, as the cited canon adds, be applied to this excommunication. Therefore the obligation of having recourse urges until it has been fulfilled. The recourse is made with the name kept back, and can be made either through the confessor or by the penitent himself. If the penitent can conveniently approach the same confessor, it is better that the recourse be made through the confessor; otherwise let the penitent have recourse, unless he wishes to approach another confessor who is willing to have recourse. If the confessor refuses, the penitent is bound, unless however he is impeded by sickness or by inability to write; in that case he is excused until the impediment has ceased.

b) In danger of death any priest, even one not approved, can absolve from this excommunication, while there remains, however, for the sick person, under penalty of reincidence, the obligation of having recourse, after he has recovered, unless he has been absolved by one endowed with a special faculty, to the Sacred Penitentiary and of obeying its mandates (can. 882 compared with can. 2252). The obligation of having recourse urges from the time health has been recovered, so that recourse must be instituted as soon as possible. If it is delayed longer, the penitent falls back into the censure. For the rest, as regards recourse, the things said above under a) hold.

3. Things to be noted regard both the petition to be directed to the Sacred Penitentiary, and the execution of the rescript to be received, and the clauses contained in the rescript. To these we shall add a formula for having recourse to the Sacred Penitentiary.

a) In the petition, with the assumed name of the penitent used, let there be set forth: 1. that the penitent has fallen into excommunication; 2. how many accomplice persons and how many times he absolved them; 3. whether and how many times he has been absolved from the same delict and excommunication; 4. whether he has contracted one or more irregularities from violation of the censure. This, however, can be omitted if he has already been dispensed from the irregularity by the confessor; 5. that the penitent has been absolved in danger of death, or in an urgent case, but now has recourse to the Sacred Penitentiary; 6. according to the circumstances it is laudably added that the sin of complicity was less grave, that the occasion of relapse has been removed, that a long time intervened between the grace obtained and the relapse, and that through the interval he conducted himself well.

b) If the rescript is granted in gracious form, it suffices that the penitent read it and fulfill the obligations imposed. If the confessor wrote, it is enough that the received rescript be communicated to the penitent, whether in confession or outside it. If the rescript is granted in commissory form, the execution is committed to the confessor chosen or to be chosen by the penitent, so that it can be carried out by any confessor whom the penitent has chosen. The execution must be done in sacramental confession, and indeed so that first absolution from the censure is given, then absolution from sins, finally dispensation is granted in the irregularity.

If the penitent can return to the confessor only with difficulty, it is better that the rescript be sought in gracious form.

c) Several clauses are commonly inserted into the rescript of the Sacred Penitentiary, for example:

1. The guilty person, if the penitent again approaches him, should admonish the penitent concerning the nullity of the past confessions.

2. Let him abstain, insofar as this can be done without grave scandal, from hearing the confessions of the accomplice person. This clause obliges under grave obligation.

3. Let the guilty person be warned that, if he commits another crime of absolution and obtains a similar favor from the Sacred Penitentiary, this favor will in no way profit him unless he has made mention of the present favor.

4. As regards the clause of giving up the office of confessor, if it is added, note these things:

This clause is imposed either absolutely, or with mitigation, namely insofar as, before the term fixed for giving up the office, a new recourse to the Sacred Penitentiary is permitted, if it is judged that grave causes stand in the way of resigning the office.

If it is imposed with mitigation, recourse can be had to the Sacred Penitentiary for the purpose of obtaining relaxation of the clause, after the reasons have been set forth and, according to the circumstances, also the good disposition of the penitent and the amendment of his morals have been invoked.

If it is imposed absolutely, nothing prevents the confessor from having recourse again and obtaining either relaxation of the clause or at least prorogation of the term.¹

d) Formula for having recourse to the Sacred Penitentiary.

Most Eminent Prince,

Titius, a priest, has incurred the excommunication reserved to the Supreme Pontiff in the most special manner, because once, or twice, or three times, he absolved an accomplice, or feigned to absolve an accomplice. Since he could not be dismissed without absolution, he received it. Now, however, through me he has recourse to the Holy See, prepared to execute the mandates which it may please Your Eminence to impose, in gracious form. Titius continued to celebrate before absolution. The office which he holds cannot be given up without grave inconvenience.

May Your Eminence deign to direct the response to me, the undersigned.

Reverently kissing the sacred purple, I subscribe with the greatest reverence which is fitting.

Your Eminence's most humble servant.

Notes. The name and domicile of the confessor should be clearly noted. The letter, however, should be addressed thus: A sua Eminenza Reverendissima - Il Cardinale Penitenziere-Maggiore - Palazzo del S. Uffizio, Roma.

¹ De Smet, De absolutione complicis et sollicitatione, 2nd edition, n. 40.