The Manner of Receiving a Denunciation, And, Once It Has Been Received, of Proceeding Further Against Those Denounced

I. The denunciation must be made before the Bishop or his delegate, with the intervention of an ecclesiastical man who holds the part of notary. Other witnesses cannot be present, and the Bishop can dispense from the intervention of the notary for a reasonable cause.¹ For the rest, the deputation of the delegate and of the notary, if the latter is used, must be made in writing.

II. If a confessor or another person is delegated to receive the denunciation without the intervention of a notary, a formula to be followed is handed to him by the Ordinary, or by the Holy Office.

III. Let the one who receives the denunciation see that the crime of false denunciation is reserved to the Supreme Pontiff, and let him signify to the denouncing person that no inquiry concerning consent furnished is to be instituted. For the rest, this order is regularly prescribed: first, the oath concerning speaking the truth, to be given by touching the Holy Gospels, is to be asked from the denouncing person; then he or she is questioned according to the formula handed down by the Ordinary or by the Holy Office, with the responses immediately put into writing not only as regards substance but also as regards words; then the entire instrument is to be read aloud to the denouncing person, with the faculty being given of adding, suppressing, correcting, and changing; finally the signature of the denouncing person is to be required, or, if he or she cannot write, the sign of the cross; and while the denouncing person is still present, there is to be added the signature of the one receiving it and, if one was used, of the notary. Lastly, an oath of preserving secrecy is to be demanded from the denouncing person, with excommunication reserved to the local Ordinary or to the Holy See being threatened if necessary.²

Note. "Sometimes for a grave reason it can be permitted that one or another of the prescribed forms, with the substance being preserved, be omitted, for example the touching of the Gospels. In more difficult cases it is also permitted that the denunciation, with the prior permission of the denouncing person, lest the sacramental seal seem to be violated, be received by the confessor in the confessional seat. Indeed, when a wholly grave and altogether extraordinary cause is urgent, the denunciation will also be able to be made through a report written by the denouncing person, provided however that it is afterward confirmed by oath and signed before the local Ordinary or his delegate and notary, if one is present."³

IV. Once the denunciation has been juridically received, whether by himself or through a delegate, the Ordinary under grave obligation must signify it to the promoter of justice, who is to declare whether the crime of solicitation is present or not. Once this has been done:

1. If the Ordinary dissents from the promoter of justice, the latter must refer the matter to the Holy Office within ten days.

2. If the Ordinary agrees with the promoter of justice, or if the promoter in any way does not have recourse to the Holy Office, let the procedure be as follows:

a) If the Ordinary judges that the crime of solicitation is lacking, let him place the acts in the secret archive or, considering the gravity of the matters denounced, use his own right, for instance by admonishing or punishing the denounced person, although he is not guilty of the crime of solicitation.

b) If the Ordinary judges that the crime is present, let him proceed to an inquiry (cf. can. 1939, § 1).

IV. Let the inquiry be made in the manner set forth in the Instructions of the Holy Office of February 20, 1867, n. 9, and July 20, 1890.

V. Once the inquiry has been completed:

1. If it is established that the denunciation lacks all foundation, let this be reported in the acts, and let the documents of accusation be destroyed.

2. If vague or uncertain indications are at hand, let the acts be placed in the secret archive until something else arises.

3. If sufficiently grave indications are at hand, but not indications sufficient for an accusatory action, let the guilty person be admonished in a different manner according to the diversity of the case.

4. If certain or at least probable indications are had for an accusatory action, the guilty person must be cited (cf. can. 1946); however, an oath concerning speaking the truth cannot be administered to him (cf. can. 1744).

VI. Once the guilty person has been cited and appears, the procedure must be as follows:

1. If the guilty person confesses the crime, and his confession agrees at least substantially with the accusation, a definitive sentence can be pronounced. Nevertheless, the guilty person can either accept it or demand the regular development of the process.

2. If he does not confess the crime, or if his confession does not agree even substantially with the accusation, let the acts of inquiry be handed over to the promoter of justice, who is to draw up the libellus of accusation (can. 1954 and 1955). In the meantime the guilty person can already be suspended from sacred ministry or from hearing confessions until the end of the trial. Then let him be questioned carefully, while avoiding manifestation of the denouncing persons or of the sacramental seal. After a suitable time has elapsed, in which the defender of the guilty person prepares and exhibits the defense, and the promoter of justice prepares and exhibits the libellus of accusation or his requisition of justice, let the judge pronounce the definitive sentence according to the acts and the proofs, that is: if he is certain of the crime, let him condemn the guilty person; if he is certain of innocence, let him absolve him; if he is doubtful, let him dismiss him.

3. From the pronounced sentence both the guilty person and the promoter of justice can appeal to the Holy Office within ten days. The appeal is suspensive, while nevertheless the suspension of the guilty person perhaps issued before the definitive sentence remains firm. If appeal is made, let the acts, or an authentic copy of them, be transmitted to the Holy Office.⁴

VII. Certain things remain to be noted:

1. The Ordinary is bound to manifest at once to the Holy Office the denunciation juridically received. In addition, if the one denounced lives in another territory, let him send to the Ordinary of that place an authentic copy of the denunciation with the inquiries and declarations of the guilty person.

2. The Ordinary must signify the outcome of the juridically received cause to the Holy Office and, if the denounced person is a religious, to his Superior General.

3. If a priest who has been condemned, or only admonished, transfers his residence into another territory, the Ordinary a quo is bound as soon as possible to admonish the Ordinary ad quem concerning the antecedents and juridical status of the denounced person.

4. If the denounced person, suspended from hearing confessions but not from preaching, goes into another territory for preaching, the Superior of the denounced person, whether secular or religious, must admonish the Ordinary of the other territory that he cannot be used for hearing confessions.⁵

5. Those who are assumed for treating or defending these causes, namely the judge, the promoter of justice, the defender of the guilty person, the notary, and so forth, are bound to the secrecy of the Holy Office: the Ordinary by force of office; the ministers by oath; others absent by a precept to be imposed on them; and indeed under penalty of excommunication latae sententiae, reserved to the Supreme Pontiff alone, even the Sacred Penitentiary being excluded.⁶

6. If the things set forth are difficult to observe exactly, the Holy See sometimes permits that the matter be treated in an easier manner.⁷

7. If the treatment of the matter carries with it grave difficulties, the matter, with the acts transmitted, can be referred to the Holy Office, which can hand down particular instructions.⁸

¹ Instruction of the Holy Office, February 20, 1867.

² Aertnys-Damen, Theologia Moralis, II, n. 426.

³ Aertnys-Damen, cited work, n. 427.

⁴ Aertnys-Damen, cited work, n. 428.

⁵ Aertnys-Damen, cited work, n. 429.

⁶ Aertnys-Damen, cited place, n. 15.

⁷ Cited Instruction, n. 16.

⁸ Cited Instruction.

Form for receiving a denunciation without the intervention of a notary, from the cited Instruction, A. S. S., vol. 3, p. 505 ff.

"On the ... day of the month of ... in the year ..., there appeared voluntarily and personally before me, the undersigned, stationed at ... (he shall note the place where he is found for receiving the act), specially delegated for this act only by the Most Illustrious and Most Reverend N. N., as appears from the letters of the same Ordinary directed to me and dated ... (he shall state on what day the letters themselves were written), which are to be attached to the present record, N. N. (he shall write the name, surname, father, native place, age, condition, and residence of the person denouncing; and if she is a religious, he shall also state the name by which she was called in the world. He shall then continue), to whom was administered the oath to speak the truth, which she took by touching the Most Holy Gospels of God (which he shall have her touch); she set forth as follows, namely:

"Here the person denouncing must declare in the vernacular language that she knows the Ordinary of the place has obtained the faculty to receive, without the intervention of a notary, that which she is about to set forth for the relief of her conscience, because for just causes she cannot present herself to the same Most Reverend Prelate; then she must relate continuously the matters pertaining to the solicitations made to her, whether they were words, writings, or acts, accurately describing the place, time, occasion, occurrences, and individual circumstances, and also whether these things happened in the act of confession or before or after sacramental absolution. She must name the confessional and the soliciting confessor himself; and insofar as she does not know, or has forgotten, his name and surname, she shall accurately describe his person, noting all his distinguishing characteristics, so that he can be recognized. Let the delegate take notice that the person denouncing is not to be asked whether she in any manner gave or refused consent to the base act, since she is not bound to manifest her own defects. After these things have been written out as they are related, the delegate shall require what follows, and nothing else besides.

"Asked whether she knows, or has heard it said, that the said N. N. (naming the person), a confessor, solicited other penitents to base acts; and insofar as, etc.

"She answered: (He shall note the answer, and if it is affirmative, he shall inquire into the names and surnames of the persons solicited and the cause of her knowledge).

"Asked concerning the reputation of the aforesaid confessor N. N., both with her and with others; and insofar as, etc.

"She answered: (He shall write out the answer).

"Asked whether she made the aforesaid deposition from hatred or love, and concerning enmity and other general matters, etc.; and insofar as, etc.

"She answered: Rightly (if she says that she denounced in order to relieve her own conscience). If more than one month has elapsed since the solicitation, she shall also be asked:

"Asked why she delayed so long in denouncing the aforesaid matters to her own Ordinary and relieving her conscience?

"She answered: (He shall note the answer).

"The act is to be closed in this manner.

"These things having been had and received, etc., the man (or woman) was dismissed, having been sworn (or sworn, feminine) to preserve silence by touching anew the Most Holy Gospels of God (she shall swear again upon the Gospel), and in confirmation of the foregoing signed her name (and if she does not know how to write), and since she did not know how to write, as she asserted, she made the sign of the Cross (he shall require her to make the sign of the Cross with the pen).

"After the person denouncing has signed her name or made the sign of the Cross, the delegate shall sign himself in this manner:

"These acts were done through me, N. N., specially delegated as above by the Most Illustrious and Most Reverend Prelate N. N.

"He shall then transmit the entire act directly to his own Ordinary who delegated him, together with the instruction and letters received, retaining absolutely nothing with himself."

IV. The obligation of denouncing solicitors, and indeed grave, is present not only as general from natural right, by which all are obliged to this if it is necessary for removing scandal; but also as special from positive ecclesiastical right, by which solicited penitents are obliged within a month, and indeed under penalty of excommunication latae sententiae reserved to no one.

The end of this precept is not only the amendment of a particular person, but rather the public security of the sacrament and of souls, to be obtained from certain chastisement of the crime and from the unavoidable fear of confessors.

According to this statute of law:

A. All and only priests are to be denounced, even those not approved or lacking jurisdiction (Holy Office, 11 February 1661, n. 5; and 20 February 1867, n. 2), whether secular or regular, of whatever preeminence or dignity (yet episcopal probably excepted, as we noted above), soliciting by themselves; - not however mere interpreters or messengers of solicitation, or those commanding or counseling it, according to the Holy Office, 11 February 1661, n. 6 and 7.

They are to be denounced even if they themselves at once repented of the solicitation made or if, solicitation having been begun, they at once desisted (ibid. n. 2), or if they had been induced by grave fear (ibid. n. 9), or if they solicited a penitent not noticing the malice of the sin (Holy Office, 11 May 1707); - even if the crime had been committed a long time ago and remained occult or cannot be juridically proved (prop. 5 condemned by Alexander VII, 24 September 1665), or no admonition or fraternal correction had preceded (Alexander VII, 8 July 1660); - or they themselves have gone to a distant land or are now amended, indeed if they spontaneously denounced themselves (Holy Office, 26 July 1628), or even have been fully convicted and punished by a judge (Holy Office, 11 February 1661, ad 13), especially if it concerns a new crime or solicitation of another: provided that they are still living; - not however the deceased (Holy Office, 27 May 1707, and 6 March 1839; Sacred Penitentiary, 24 April 1884).

For the end of the law is not only the amendment of the one soliciting, nor only his punishment, but each together; wherefore those who now are amended or now punished are also to be denounced, because the total end of the law has not yet ceased; but not the deceased, because the end can no longer be obtained, but has ceased totally. Wherefore if some have been fully convicted judicially concerning the crime to be denounced, and at the same time appear fully and perfectly amended so that reincidence does not seem to be feared, there would no longer be an obligation of denouncing; but this scarcely has force in practice, for, as De Smet notes, On the Absolution of an Accomplice and Solicitation, n. 86, "with the strict secrecy to be observed in cases of this kind considered, it scarcely is ever clear on account of what crime the priest was convicted and punished."

B. Solicited penitents are obliged to denounce, even if they did not understand the solicitation and only knew it later (Holy Office, 11 May 1707), or, on the contrary (Holy Office, 25 July and 27 September 1624), they themselves consented, or first solicited, so that the solicitation was mutual, since they can keep this silent, indeed even deny it, if, which may it not happen, they are questioned about it (Holy Office, 25 July 1624, and 20 February 1867, n. 6); - even if a long interval of time has intervened (prop. 6 condemned by Alexander VII), the crime remained occult and proof is lacking, or if they promised and swore that they would never denounce, because a promise concerning an illicit thing does not hold, and an oath cannot bind to iniquity; - indeed if denunciation has already been made by another: for the law binds individual solicited persons.

Yet they are excused 1) on account of the death of the priest soliciting, as was said;

2. on account of great extrinsic inconvenience, as long as it lasts (Holy Office, 21 February 1630, and 20 February 1867, n. 5): thus notable damage or grave danger in the goods of life, reputation, or fortune, also, probably, for very near blood-relatives, unless from omission the common good of religion would be gravely endangered; likewise moral impossibility, which in certain regions can rather easily be had, of making denunciation either orally or by letters (Holy Office, 21 February 1630, and 22 January 1727); - not however inconvenience intrinsic to the precept, as fear of some indignation to be incurred with the one soliciting, shame in manifesting the solicitation, danger of light inconvenience or a slight danger of a graver one; nor even danger of one's own infamy or publicity, which is not given on account of the cautions customarily employed;

3. on account of dispensation of the Holy Office, which is rarely conceded; nevertheless it can be sought if the penitent, even irrationally, altogether refuses that he will make denunciation (Holy Office, 20 February 1867, n. 7): for sometimes if there is excessive repugnance of the penitent, or not so great a utility of denunciation, dispensation can be given.

Besides the penitent himself, in the new law it now seems that it cannot be urged that others who certainly know solicitation are obliged to denounce by force of ecclesiastical law. For canon 904 expressly says: the penitent; - although nevertheless excellent authors, such as De Smet and Vermeersch, defend that the ancient law in this matter still has force; but this is not certain. Yet those who knew the matter from professional secrecy never had to denounce; nor did the confessor soliciting himself have to denounce himself (Holy Office, 17 November 1624), although, if he does so, he is treated more mildly and will be immune from vindictive penalties, but not always from medicinal ones (Holy Office, 20 February 1867, n. 13).

C. Confessors are bound under grave obligation to admonish penitents concerning the obligation of denouncing, even if these in good faith are ignorant of the obligation, and it is foreseen that they will refuse to denounce (Holy Office, 20 February 1867, n. 3): for the common good demands this; - with the sole exception of the article of death, lest penitents be cast into danger of damnation. Moreover confessors must teach the obligation of denouncing, the time within which it is to be fulfilled, the penalty to be incurred, the mode of making denunciation. But if penitents, without a grave excusing reason, refuse to denounce, they are not to be absolved, as indisposed (Holy Office, 20 February 1867, n. 5); but the confessor can recur to the Sacred Penitentiary or the Holy Office, to receive instructions or even to obtain dispensation.

Nor are they freed from the burden of denouncing from the fact that they confess before the soliciting confessor himself, who is not bound to admonish them against himself, as is clear from the very words of the pontifical Constitutions; Alexander VII condemned proposition 7: "The mode of avoiding the obligation of denouncing solicitation is if the one solicited confesses with the one soliciting: this one can absolve him without the burden of denouncing."

D. Solicited penitents neglecting to denounce contract excommunication by that very fact. To incur this there is required 1) a certain obligation of denouncing; 2) culpable omission, which supposes knowledge of the obligation, and also of the censure, so that ignorance of this excuses, unless it is affected; 3) the time of one month having elapsed, which runs from the moment at which the solicited person knew the obligation and the time of fulfilling it and the attached censure.

Such a penitent cannot be absolved unless he has made the denunciation, or at least seriously promised to make it; which having been done, he can be absolved by a simple confessor, because the censure is reserved to no one. "But if afterwards, his will changed, he does not denounce, the censure does not revive," says Noldin, Th. M., III, n. 379, "because nothing is had concerning reincidence."

V. Mode of making denunciation. - According to the norm of law:

A. Denunciation is to be made to the Holy Office, or to the Ordinary of the place (can. 904), that is, the bishop, - or abbot nullius, - administrator, vicar or prefect apostolic, - and to him who, when the aforesaid are lacking, succeeds in governance (can. 198 § 1, for example, capitular vicar), or their delegate; - not however to the vicar general without special mandate (Holy Office, 14 July 1753 and 20 March 1901, and can. 2220 § 2), nor a fortiori to religious superiors (can. 501 § 2), who, although they come under the name of Ordinary, nevertheless do not come under the name of local Ordinary (can. 198 § 2).

Moreover of itself denunciation is to be made to the proper Ordinary of the priest soliciting; nevertheless practically it can also be made before the Ordinary of the place in which the delict was committed, or also the Ordinary of the penitent, who then must transmit the received denunciation to the Holy Office or to the proper Ordinary of the one soliciting.

B. Denunciation is to be made personally and orally, by the solicited person herself,

either 1) before the bishop or his delegate, and another ecclesiastical man functioning as notary, and with oath and subscription of name (Holy Office, 20 February 1867, n. 6);

or 2) orally and personally, before the confessor or another ecclesiastical man, to be deputed for this by the bishop, but without the intervention of a notary (ibid. n. 8).

For making this denunciation, in practice ordinarily an extrajudicial denunciation must precede.

This can fittingly be done thus:

a) If the solicited person is able to write, let her herself write to the bishop, by her own hand, and in letters not anonymous but signed with her name and residence, let her explain that she is held to making denunciation and asks that the mode in which it is to be made be indicated, or that a delegated person be sent to receive it; - or also let her manifest the delinquent, reporting the place, time, occasion, turns and individual adjuncts, and also whether it happened in the act of confession, or before or after, also the name and function of the confessor, or, if this is unknown, an accurate description of his person. And let her say that she is prepared promptly to conform herself to instructions to be given by the bishop; adding, if grave reasons are present, that she cannot approach the episcopal curia, but expects that a delegate be sent, or even that the denunciation fittingly be made to the confessor alone.

b) If she does not know how to write, or cannot without grave inconvenience, let her approach the bishop by herself or through a faithful intermediary; - and if she cannot (or does not wish to) do this, it is expedient that (with permission of the penitent) the confessor write (ibid. n. 7), not indeed to carry out denunciation in place of the penitent, but to inform the bishop, under pseudonyms, concerning the fact of solicitation and to request, with the impossibility of the penitent considered, opportune instructions. Yet the confessor is not strictly bound to this; unless exceptionally grave public damage is imminent. And if the confessor does not wish, the penitent will be able to await the occasion of another confessor who will minister this.

The penitent who has admonished the bishop, and is prepared to stand by his mandates, can be absolved; and of itself it suffices that thereafter he await the response of the bishop.

C. The Ordinary, according to the Instruction of the Holy Office, 20 February 1867, n. 10, must diligently inquire whether the denouncing person is worthy of faith, and, before proceeding against the one denounced, have ascertained "that the women or men denouncing are of good name and are not led to accuse either by enmity or by another human affection."

"Therefore the Ordinary, as often as he has received some denunciation concerning the infamous crime of solicitation, will immediately proceed to diligences (that is, judicial investigation concerning the reputation of the denounced and denouncing person). To this end, either by himself or through a priest specially delegated by him, he will call (separately, namely, and with the circumspection he must use) two witnesses, as much as can be done, from the ecclesiastical group, each above every exception, who know well both the one denounced and each and every one denouncing, and under the sanctity of an oath concerning telling the truth and preserving the secret of the Holy Office, he will question them judicially, referring the testimony in writing according to the following formula; but he will transmit an authentic copy of each testimony and at the same time of the respective denunciation directly and by a safe way to this Supreme Congregation as soon as possible. But if two witnesses only cannot be found who know at once the one denounced and each and every one denouncing, several must be called. Namely, in this case so many witnesses as above will have to be called that a double testimony may be had as to the one denounced and as to each one denouncing." Thus the Instruction of the Holy Office, 6 August 1897, from which it follows that the bishop now cannot proceed judicially against the one denounced before he has transmitted the aforesaid documents to the Holy Office and received a response from it.