The Obligation of the Confessor with Respect to a Penitent who Is Bound to Denounce

I. The confessor must, with the penitent's conscience gravely burdened, admonish a penitent solicited by another concerning the obligation of denouncing; nor does the penitent's good faith excuse the confessor from admonishing him or her, although even here there is sometimes place for epikeia. This is clear from the ecclesiastical documents cited or to be cited. It is said:

1. The confessor (can. 904); and indeed every confessor, not only one who habitually enjoys jurisdiction, but also one who possesses it only transiently, for instance by hearing the confession of a dying person.

2. The penitent ... solicited. Others who are not solicited but perhaps are bound by the law of charity to denounce (n. 420) must be admonished according to the common rules of admonishing.

3. The penitent solicited by another. For a confessor is not bound to admonish a penitent solicited by himself (n. 420). Nevertheless, for this reason the penitent is not freed from the burden of denouncing, and once the burden is known, he or she must fulfill it.¹

4. Concerning the obligation of denouncing. Concerning the excommunication which the penitent incurs unless within a month, from the obligation having become known, he or she has satisfied the obligation (n. 424), the penitent must be admonished according to the common rules.

5. Nor does the penitent's good faith excuse the confessor from admonishing him or her.² Therefore admonition concerning the obligation of denouncing must be made even if the penitent is foreseen not to be going to obey. Thus, namely, the Church established on account of the common good; for a disposition of this kind more greatly deters confessors, and more greatly consults for denunciation (St. Alphonsus, VI, 694).

6. Even here there is sometimes place for epikeia. Moreover, the admonition can be omitted if the penitent is in danger of death and is foreseen to be going to refuse denunciation; likewise if danger of disclosure and scandal is feared, for instance if the matter concerns a very frivolous and talkative person; likewise if the penitent did not understand the solicitation and the admonition cannot be made without scandal. If, however, he or she later understands it, the person must be admonished. Other excusing causes which are alleged by some, though few, cannot be reconciled with the severity of the law and give occasion for weakening discipline. Observe, however, that the admonition can be deferred if there is hope that the penitent on another occasion will do what would now be demanded in vain.

¹ Proposition 7 condemned by Alexander VII (Denzinger-Bannwart, n. 1107).

² Instruction of the Holy Office, February 20, 1867, response 3.

II. Penitents who have been admonished and entirely refuse cannot be absolved;¹ but those who can defer denunciation for a just cause, and who pledge and seriously promise that they will make it as soon as they can, can be absolved. For the rest, observe:

1. A penitent who without just cause has omitted to denounce the one soliciting within a month from knowledge of the obligation of denouncing incurs an excommunication latae sententiae, reserved to no one; nor is the penitent to be absolved from it unless after he or she has satisfied the obligation or has seriously promised to satisfy it (can. 2368, § 2).

2. But if the penitent, "detained by no impediment, absolutely refuses denunciation, in this case ... the confessor is to be praised who has not denied his service to the penitent and has consulted either the Ordinary or the Holy See for opportune provisions, with the name of the penitent, however, suppressed";² namely, afterwards dispensation from the burden of denouncing was granted by the Holy See.

¹ Cited Instruction, response 5.

² Cited Instruction, response 7.

III. If the case occurs, let the confessor:

1. Weigh: 1. whether all the requisites, both on the part of the act and on the part of the circumstances, are present; 2. whether the penitent is worthy of faith.

a) As regards the first: if the external act is not ambiguous, the intention of the priest is judged to be consonant with the act; if the act is ambiguous, commonly the gravely depraved intention of the priest will also be doubtful.

b) As regards the other: a reason for doubting the sincerity of the penitent exists if he or she readily acquiesces in denunciation; likewise if, once the obligation has been proposed, the person begins to speak doubtfully. If doubt about sincerity remains, it is better to say only: If the things you say are true, you must admonish the Bishop; and the confessor should not provide his services to that person.

2. In doubt he cannot impose the obligation, according to the norm of the things we noted in n. 419.

3. Generally, unless the matter is manifest, before he imposes the obligation he should prudently consult someone more learned, and enjoin on the penitent that on another occasion he or she speak about the same matter.

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."

645. The manner of making denunciation. - According to the norm of law:

A. Denunciation must be made to the Holy Office or to the Ordinary of the place (can. 904), i.e., to the bishop, or abbot nullius, administrator, vicar or prefect apostolic, and to him who, in the absence of the aforesaid, succeeds in governance (can. 198, § 1, e.g., a capitular vicar), or to their delegate; - but not to the vicar general without a special mandate (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 Ordinary of the place (can. 198, § 2).

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

B. Denunciation must be made personally and by living voice by the solicited person herself,

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

or 2) 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 an extrajudicial denunciation must ordinarily precede:

a) If the solicited person is able to write, let her write herself to the bishop, with her own hand, and in letters not anonymous but signed with her name and domicile, let her set forth that she is bound to make denunciation and ask that the manner in which it is to be made be indicated, or that a delegated person be sent to receive it; - or even let her manifest the delinquent, reporting the place, time, occasion, occurrences, and individual adjuncts, and also whether it happened in the act of confession, or before or after, and also the name and office of the confessor, or, if this is unknown, an accurate description of his person. And let her say that she is ready promptly to conform herself to the instructions to be given by the bishop; adding, if grave reasons are present, that she cannot approach the episcopal curia, but waits for a delegate to be sent, or even that denunciation may suitably be made only to the confessor.

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 messenger; - and if she cannot do this (or does not wish to), it is expedient that, with the permission of the penitent, the confessor write (ibid., n. 7), not indeed to complete the denunciation in place of the penitent, but to inform the Ordinary, under pseudonyms, concerning the fact of solicitation and to ask, with regard to the impossibility of the penitent, for opportune instructions. Nevertheless the confessor is not strictly bound to this; unless exceptionally grave public harm is imminent. And if the confessor does not wish to do it, the penitent will be able to await the occasion of another confessor who is willing to perform this ministry.

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

C. The Ordinary must diligently inquire whether the person denouncing is worthy of faith, and before proceeding against the denounced, have it 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."

Thus the Instruction of the Holy Office, February 20, 1867, n. 10. But the manner in which he must inquire concerning this was defined by the Holy Office in the instruction of August 6, 1897; the manner of receiving denunciations in the instruction of July 20, 1890.¹

¹ De Smet nevertheless judges the contrary, because according to the Benedictine Constitution this reservation is a medicinal penalty, from which, according to can. 2229, § 3, ignorance excuses if it is not crass. But this no longer holds in law, in which it is expressly said, can. 893, that reservation limits the power of the confessor, and in the immediately following canon 894, false accusation is called the one sin reserved to the Holy See by reason of itself. Therefore it is no longer principally a medicinal penalty, but a calling-away to the tribunal of the superior and a restriction of jurisdiction; as is now generally acknowledged. - Moreover practically ignorance is rarely present, since those denouncing a confessor must be admonished by the judge or delegate concerning the reservation.

III. "One sin reserved by reason of itself to the Holy See is false denunciation (by oneself or through another), by which an innocent priest is accused of the crime of solicitation before ecclesiastical judges." Thus from the new law, can. 894.

Besides, according to can. 2363, a specially reserved censure is incurred if the denunciation is made before any superiors whatsoever (concerning which see below, c. V, q. 2, n. VII). Whence simple denunciation made before a superior is specially reserved to the Holy See by reason of censure; if besides the denunciation is made judicially, namely formally before the bishop as judge, then by reason of itself the sin itself is reserved.

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.

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:

1. 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.

2. 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

3. 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).