Penal Remedies and Penances

These are disciplinary means of coercing delicts, which do not attain the character of penalty in the proper sense.

I. Notion. A penal remedy is a canonical means of forestalling true delicts or further delicts. Because they import some penality, they suppose some transgression of law which nevertheless does not reach the character of a delict, and some fault, although not grave. The case is when a transgression for the transgressor is the occasion or danger of committing a true delict, or contains suspicion of that delict and thence scandal of the faithful, for example visits or familiarities of a cleric with persons of diverse sex.¹ Furthermore, sometimes a penal remedy is substituted for or added to a penalty, so that further delicts may be forestalled (canons 2223, § 3, 3°; 2224, § 2; 2234).

II. Penal remedies from canon 2306 are: 1° warning; 2° correction; 3° precept; 4° vigilance; this enumeration seems to be taxative.

1. Warning. Him who is in the proximate occasion of committing a delict, or upon whom, from an inquiry conducted, there falls grave suspicion of a committed delict, the Ordinary is to warn by himself or through an interposed person (canon 2307).

2. Correction. If from someone's conduct scandal or grave disturbance of order arises, there is place for correction, to be made by the Ordinary by himself or through an interposed person, even by letter, adapted to the particular conditions of the person and of the fact in question (canon 2308).

Regarding the mode of making warning and correction, the Code establishes:

a) Both warning and correction can be either public or secret (canon 2309, § 1).

b) Public correction or warning is to be made either before a notary or two witnesses, or by letter, yet in such a way that the reception and tenor of the letter are established from some document (canon 2309, § 2; cf. canon 2143, § 3).

c) Public correction can be made only against a guilty person convicted of or confessing a delict; and it is judicial if it is made by a judge sitting for tribunal or by the Ordinary before criminal process; extrajudicial if it is made in the manner of a precept outside judgment (canons 2309, § 3; 1933, § 4). The latter admits recourse; the former, appeal.

d) Judicial correction² either is had in place of a penalty, or is made to increase the penalty, especially if there is question of a recidivist (canon 2309, § 4).

e) Warning and correction, even if they were made secretly, must be established from some document to be preserved in the secret archive of the Curia (canon 2309, § 5).

f) Both correction and warning can be made once or several times, according to the judgment and prudence of the Superior (canon 2309, § 6).

3. A precept must accurately indicate, and this with threat of penalty in case of transgression, what the person forestalled must do or avoid. It is to be given after warnings and corrections have been made in vain, or if it is not licit to hope for effect from them (canon 2310); therefore if there is no hope of fruit, warnings or corrections can be omitted.

4. Vigilance. If the gravity of the case bears it, and especially if there is question of one who is in danger of relapsing into the same crime, the Ordinary is to subject him to vigilance (canon 2311, § 1). Vigilance can also be prescribed to increase a penalty, especially against recidivists (canon 2311, § 2; cf. canons 2234; 2224, § 2).

¹ Wernz, op. cit., n. 253.

² Cf. canons 1947-1953, which we leave to canonists to explain. Judicial correction cannot be made a third time against the same guilty person (canon 1949, § 1); when it must be omitted, see canon 1948.

I. Notion. Penances in the external forum are imposed so that the delinquent may either escape a penalty or receive absolution or dispensation from a contracted penalty (canon 2312, § 1). In order that a penance can be imposed, grave imputability of a committed delict is nowhere required; nor is it required that there be a delict in the proper sense. That a transgression which does not reach the character of a delict suffices is clear first from the same canon, § 2, where this is insinuated by the words delict or transgression; then from canon 1313, § 2, according to which a penance can be joined by the Ordinary to a warning; but this does not prerequire a delict. Hence by reason of scandal given or danger of delict, and in other cases where amendment, for example of a cleric, is desired, the Ordinary can oblige him especially to make spiritual exercises, since these also have the character of a preventive remedy.¹

II. Division. Penances are public or secret insofar as they must be fulfilled in a way easily knowable by others, for example an unusual pilgrimage, or can be fulfilled secretly, for example prayers to be recited. Moreover, on account of an occult delict or transgression, a public penance is never to be imposed (canon 2312, § 2).

III. Application. Penances are to be moderated not so much according to the quantity of the delict as according to the contrition of the penitent, with the qualities of persons and the circumstances of delicts weighed (canon 2312, § 3); for just as a penalty in the proper sense regards more the delict to be coerced or vindicated, so disciplinary penance regards more the disposition of the penitent, whether to be corrected or to be confirmed.

IV. The principal penances from canon 2313, § 1, are precepts:

1. Of reciting determinate prayers.

2. Of making some pious pilgrimage or other works of piety.

3. Of observing a particular fast.

4. Of expending alms for pious uses.

5. Of making spiritual exercises in a pious or religious house for some days.

The Ordinary, according to his prudence, can add these or other penances to the penal remedy of warning and correction (canon 2313, § 2), namely so that the guilty person may show his amendment by their fulfillment.

¹ Wernz, op. cit., n. 251.