Point I. On Those who Must Be Denounced

All and only priests must be denounced who themselves have provoked someone to shameful things, or who have had with someone illicit and dishonest conversations or dealings with rash daring in one of the circumstances soon to be set forth. It is said:

I. All priests, both seculars and regulars, both approved and not approved. It is disputed, however, whether even Bishops must be denounced. It seems that an affirmative answer must be given, because the Constitution Sacramentum Poenitentiae of Benedict XIV declares that "all priests ... of whatever dignity and preeminence" must be denounced (St. Alphonsus, VI, 685).

Objection. The denunciation must be made to the local Ordinary or to the Sacred Congregation of the Holy Office (can. 904). But criminal causes of Bishops, according to canon 1557, § 1, 3, and canon 2227, § 1, must be judged by the Supreme Pontiff.

Response. By establishing that all priests of whatever dignity must be denounced, the legislator seems to signify sufficiently that Bishops, as regards this cause, must be denounced to the Holy Office.

II. And only priests, so that laymen and lower clerics who solicit in confession while pretending to be confessors are excluded. Nevertheless, by receiving sacramental confession, according to canon 2322, 1, they contract an excommunication reserved in a special manner to the Apostolic See; moreover, the cleric is to be deposed, the layman is to be deprived of pension or ecclesiastical office, and punished with other penalties according to the gravity of the fault.

III. Who themselves, etc. Therefore neither those commanding or advising solicitation, nor interpreters, are to be denounced, since they act in the name of another.²

IV. Someone; it is the same whether the matter concerns a male or a female, and of whatever age the person may be.³

V. They have provoked to shameful things; wherefore observe:

1. A provocation to venereal matters is required, and therefore to grave sin, "since in venereal matters there is no smallness of matter."⁴ Moreover the provocation, as the Constitution Sacramentum Poenitentiae has it, can be made "whether by words, or by signs, or by nods, or by touch, or by writing." Nor does it stand in the way that the provocation is made by way of advice given.

The Sacred Penitentiary⁵ declared that the crime of solicitation is present in the following case. Tibullus, hearing the confessions of women whose husbands are often accustomed to be absent and who do not easily contain themselves, teaches and persuades these same women that they do not sin in the following cases: 1. if, by desiring their own absent husband, they suffer sensual commotion or pollution; 2. if they desire to experience this same pollution in themselves from burning love of the absent husband; 3. if they excite pollution in themselves by touches performed with themselves, provided that they refer these acts to the absent husband. The Sacred Penitentiary adds that "this Holy Tribunal has already twice responded on this matter, and that acts of this kind are gravely illicit and that a confessor approving them must be denounced."

It is required, however, that the confessor have sinned gravely not only objectively but also subjectively. Still, subjective fault is commonly presumed to correspond to objective malice (St. Alphonsus, VI, 683).

2. It is the same whether the penitent is provoked to sin with the confessor, or with himself or herself, or with a third party. Likewise a confessor must be denounced who solicits the penitent to excite another to a sin of lust, whether to be perpetrated solitarily or with another (St. Alphonsus, VI, 691).

VI. Or they have had illicit and dishonest conversations or dealings with rash daring. Dealings, conversations, or words gravely dishonest are understood; and this even if explicit provocation to venereal matters is lacking, for conversations of this kind of themselves move toward shameful things (St. Alphonsus, VI, 680). Hence authors teach that a confessor must be denounced who would ask a married person, or one accusing himself or herself of a guilty carnal act, whether it would please him or her to be engaged in those things, what conversations the sinning person would have, what acts or motions the person would perform, and the like. If rash daring is lacking, there is no place for denunciation, when the confessor necessarily, usefully, or at least without grave fault asks about a shameful sin. Nevertheless, let him beware lest he inquire into circumstances of carnal sin which there is no obligation of declaring. For the rest, as regards V and VI, observe:

1. It is not required that the sinful act or conversation be consummated, but it suffices that it be begun, provided, however, that the confessor, when beginning these things, has the intention afterward of gravely delinquent conduct even externally and objectively. Thus, if a confessor asks the penitent where he or she lives with the intention of afterwards approaching and soliciting that person; if he hands to the penitent a paper to be read later, in which he solicits the person,⁶ or treats dishonest things (St. Alphonsus, VI, 676).

2. It is not required that the penitent consent to the provocation or shameful conversation; indeed, it is not even required that the penitent perceive the provocation or the shameful meaning of the conversation. Hence the Holy Office⁷ declared that "a girl situated in simplicity and without knowledge of the dishonesty is bound to denounce the soliciting confessor after she has become in possession of herself and has acquired knowledge of the past solicitation."

3. Finally, it is not required that the provocation or shameful conversation have been begun by the confessor; it suffices that they were begun by the penitent and that the confessor consented, provided however that he did or said something shameful, even if he immediately desists from it.⁸ Nor does it stand in the way that the confessor consented after being induced by fear.⁹

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

² Holy Office, February 11, 1661, responses 6 and 7.

³ Constitution Cum sicut nuper, § 4; Constitution Sacramentum Poenitentiae, § 1; Instruction of the Holy Office, February 20, 1867, response 1.

⁴ Holy Office, February 11, 1661, response 3.

⁵ September 2, 1904.

⁶ Constitution Sacramentum Poenitentiae, § 1; Holy Office, February 11, 1661, response 1; Proposition 6 condemned by Alexander VII (Denzinger-Bannwart, n. 1106).

⁷ May 11, 1707.

⁸ Holy Office, February 11, 1661, response 2; February 20, 1867, response 2 (Collectanea, n. 1282).

⁹ Holy Office, February 11, 1661, response 9.

VII. In one of the circumstances soon to be set forth. Namely, it is required that the solicitation or dishonest conversation have a connection with the sacrament of Penance, and indeed that they have place "either in the act of sacramental confession, or before or immediately after confession, or on the occasion or pretext of confession" ("even if confession itself has not followed," adds the Constitution Cum sicut nuper),¹ "or even outside the occasion of confession in the confessional, whether in another place destined or chosen for hearing confessions, with simulation of hearing confession there."² It is said:

1. In the act of sacramental confession, that is, once the accusation of the penitent has been begun, even if after the solicitation or shameful conversation the confession is not completed (St. Alphonsus, VI, 676).

2. Before or immediately after confession. The word "immediately" regards both before and after, so that the sense is "either immediately before or immediately after confession." This is clear both from the grammatical construction in the Constitution of Gregory XV, and from the fact that otherwise the time preceding confession would not be determined. Moreover the aforesaid word must be understood in a rather strict sense, so that no other serious action or grave business intervenes between confession and solicitation (St. Alphonsus, VI, 677).

3. On the occasion of confession; this has place: 1. if the confessor and the penitent are already actually prepared for confession, for example if the confessor is already seated and the penitent is already kneeling or about to kneel; 2. according to St. Alphonsus and others, with others contradicting, if the confessor invites someone to make confession immediately; if the penitent asks the confessor to hear his or her confession immediately; if the confessor, from the confession heard, for instance from the revealed frailty of the penitent, takes occasion afterward to solicit the penitent. The reason for all these is that in the cases enumerated the solicitation is rightly said to be made on the occasion of confession, since in the first two cases confession is proposed as immediately to be made, but in the later case³ confession furnished occasion or impulse for the solicitation (St. Alphonsus, VI, 678). Practically, however, a confessor who from a confession heard took occasion afterward to solicit the penitent will scarcely ever have to be denounced; both because it will not easily be clear that he was led to a gravely dishonest act from the knowledge received, for it could have happened that he sinned, or at least sinned gravely, from a conversation begun or from prolonged association; and because denunciation in the case can scarcely be made without defamation of the penitent himself or herself.

The case, at least practically, should not be judged to be present if the confessor invites, or the penitent asks, that confession be made not immediately but afterward.⁴

4. On the pretext of confession; this case is held, with sufficient probability, only when the confessor himself, with respect to the very person to be solicited, proposes confession with the intention of soliciting. The case is not held: 1. if the confessor, under pretext of hearing confession, obtains from the Superior permission to visit a person whom he then solicits to shameful things, because the pretext was not with respect to the solicited person; 2. if the confessor, lest household members accompany him, puts forward as a pretext that he is going to hear the confession of a sick woman, whom he afterward solicits. The reason again is that the pretext was only with respect to the household members; 3. if a woman under pretext of confession summons the confessor and afterward perpetrates sin with him, because the pretext did not arise from the confessor. But the case seems to be present "if the confessor were to solicit outside confession, and the woman refused, fearing defamation; and therefore the confessor persuaded her that, feigning herself sick, she should summon him for sinning. For then the confessor is rightly said to have solicited the woman under the pretext of confession to furnish consent" (St. Alphonsus, VI, 679).

5. Outside the occasion of confession in the confessional, or in another place destined or chosen for hearing confessions, with simulation of hearing confession there. In order that someone be denounced by force of this clause, it is required: 1. that he solicited or had a shameful conversation in the confessional, or in another place destined or chosen for hearing confessions; and 2. that he did these things while simulating confession. Moreover:

a) A place destined for hearing confessions is a place which, although it lacks the customary form of a confessional, is nevertheless stably destined for hearing confessions, as for example a cell in which there is a seat for the confessor and a kneeler for the penitent; or also, for instance in the sacristy or in the parlor, the very chair for the confessor together with a kneeler for the penitent.

A place chosen for hearing confessions is any other place, for instance the room of a sick person, provided however that at least by one or the other party it has truly been chosen for instituting confession.

b) Besides this, simulation of confession is required. A simulated confession is had if those who are present must judge from the circumstances, or those who would be present would have to judge from the circumstances, that true confession is being instituted. Now some hold that simulation of confession is not required if the solicitation takes place in the confessional. But this is deservedly rejected, since: 1. the rule of law is, "A clause placed in the last place is referred to all the connected preceding things"; 2. the Holy Office agrees.⁵ Here, however, note that simulation of confession is present of itself (that is, unless positive indications to the contrary are had), if the confessor and penitent are either in the confessional or in a place destined for hearing confessions; and is absent of itself (that is, unless positive indications to the contrary are at hand), if they are in a place only chosen for hearing confessions.

¹ Constitution Cum sicut nuper.

² Constitution Sacramentum Poenitentiae, § 1.

³ Santi-Leitner (Praelectiones Iuris Canonici, p. 230) appeal to a rescript of the Sacred Penitentiary inspected by them, in which this case is considered as comprehended by the law. Cf. De Smet, cited work, p. 46.

⁴ Holy Office, February 11, 1661, response 4.

⁵ February 11, 1661, response 15.

Question 1. Whether one who is certainly amended must be denounced.

Response. The affirmative answer must be given, both because the law does not distinguish, nor do authentic declarations found this exception; because the law intends to instill fear into all, and this end is obtained more securely if even one amended must be denounced; and because the more benign opinion gives an occasion for weakening the law. Nevertheless, in the denunciation mention should be made of the amendment (St. Alphonsus, VI, 686). Therefore only a deceased priest is excepted.¹ Some extend this to a priest who, worn out by old age and impeded by chronic illnesses, is now never going to hear confessions. But that seems altogether to be rejected for the reasons just given.

Question 2. Whether someone must be denounced in doubt whether the required solicitation took place.

Response. The answer is negative, because a law does not oblige in doubt about the fact founding the law (vol. I, n. 228). There is added that no one is to be deprived of reputation in doubt. Therefore denunciation can be omitted: 1. in doubt whether the crime here required was present; 2. in doubt whether the crime was committed in the circumstances required by law; 3. in doubt who was the soliciting confessor, unless the judge can become certain about the person soliciting from the indicated circumstances. Sometimes, however, circumstances can be such that the common good demands some denunciation (St. Alphonsus, VI, 702).

Note. The crime of solicitation is not reserved by common law.²

¹ Holy Office, March 6, 1839; Sacred Penitentiary, April 24, 1884.

² Holy Office, September 15, 1859.