tidbits
FROM THE SUPREME AND HOLY CONGREGATION OF THE HOLY OFFICE
FOR ALL PATRIARCHS, ARCHBISHOPS, BISHOPS AND OTHER DIOCESAN
ORDINARIES "EVEN OF THE ORIENTAL RITE"
INSTRUCTION
ON THE MANNER OF PROCEEDING IN CASES OF SOLICITATION
The Vatican Press, 1962
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INSTRUCTION
On the manner of proceeding in cases of the crime of solicitation
[This text is] to be diligently stored in the secret archives of the
Curia as strictly confidential. Nor is it to be published nor added
to with any commentaries.
PRELIMINARIES
1. The crime of solicitation takes place when a priest tempts a
penitent, whoever that person is, either in the act of sacrimental
confession, whether before or immediately afterwards, whether on the
occasion or the pretext of confession, whether even outside the
times for confession in the confessional or [in a place] other than
that [usually] designated for the hearing of confessions or [in a
place] chosen for the simulated purpose of hearing a confession [The
object of this temptation] is to solicit or provoke [the penitent]
toward impure and obscene matters, whether by words or signs or nods
of the head, whether by touch or by writing whether then or after
[the note has been read] or whether he has had with [that penitent]
prohibited and improper speech or activity with reckless daring
(Constitution Sacrum Poenitentiae, 1).
2. [The right or duty of addressing] this unspeakable crime in the
first instance pertains to the Ordinaries of the place in whose
territory the accused has residence (V. below, numbers 30 and 31),
and this not to mention through proper law, but also from a special
delegation of the Apostolic See; It is enjoined upon these
aforementioned persons to the fullest extent possible, (in addition
to their being) gravely encumbered by their own consciences, that,
after the occurrence of cases of this type, that they, as soon as
possible, take care to introduce, discuss and terminate [these
cases] with their proper tribunal.
However, because of particular
and serious reasons, according to the norm of Canon 247, 2, these
cases can be directly deferred to the Holy Congregation of the Holy
Office or be so ordered. Yet [the right of] the accused respondents
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remains intact in any instance of judgment to have recourse to
the Holy Office. However, recourse thus interposed does not suspend,
excluding the case of an appeal, the exercise of the jurisdiction of
the judge who has already begun to accept the case; and he can
therefore be able to pursue the judgment up to the definitive
decision, unless it has been established that the Apostolic See has
summoned the case to itself (Cfr. Canon 1569).
3. By the name of Ordinaries of the place are understood to be, each
for his own territory, the residential bishop, abbot or prelate
nullius, the administrator, any vicar or Prefect Apostolic, [and, in
the absence of these aforementioned (dignitaries), those who succeed
then in power in the meanwhile by the prescription of law or from
approved constitutions (Canon 198, 1); [This note does not apply],
however, to the vicar general, except from his [having been]
specially delegated.
4. The Ordinary of the place in these cases is the judge even for
regulars [religious], even though exempt. It is indeed strictly
prohibited for their superiors to interpose themselves in cases
pertaining to the Holy Office (Canon 501, 2). However, having
safeguarded the right of the Ordinary, there is nothing to prevent
superiors themselves, if by chance they have discovered [one of
their] subjects delinquent in the administration of the sacrament of
Penance, from being able and having the obligation of being
diligently watchful over those same persons, and, even having
administered salutary penances, to admonish and correct, and, if the
case demands it, to remove him from some ministry. The will also be
able to transfer him to another [assignment], unless the Ordinary of
the place has forbidden it because he has already accepted the
denunciation and has begun the inquisition.
5. The Ordinary of the place can either supervise these cases
himself or commit their acceptance to an ecclesiastic who is serious
and of a mature age. But [them may not [commit such cases] on a
habitual basis or for the entire group of these cases, but must
delegate as often as needed (toties quoties) for cases taken singly
and through writing, saving the prescription of Canon 1613, 1.
6. Although, as a rule, a single judge, by reason of its secrecy, is
prescribed for cases of this type, it is not forbidden, however, for
the Ordinary in the more difficult cases to approve one or two
assessors and counsellors, selected from the synodal judges (Canon
1575);
7. The promoter of justice, the defender of the accused and the
notary, priests who are fittingly serious, of mature age, of
integrity, doctors in canon
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law or otherwise skilled [in canon
law] and worthy because of their zeal for justice (Canon 1589), and
not found to be at any disadvantage toward the accused, which Canon
1613 treats, are to be nominated in writing by the Ordinary. The
promoter of justice, however (who can be different from the promoter
of justice of the Curia) [can be appointed] for the entire series of
cases. The defender of the accused, however, and the notary are to
be appointed each time for each case (toties quoties). Nor is the
accused prohibited from proposing a defender seen as favorable to
him (Canon 1655), who, however, is to be a priest and approved by
the Ordinary.
8. Sometimes (this refers to his own location), the intervention [of
the promoter of justice] is required, and, in the case where he has
not been cited, unless by chance even if not cited he is still
present [at the process], the Acts must be considered [totally]
invalid. But, if, however, he has been legitimately cited and is not
present at some [parts of the] Acts, the Acts indeed are valid, but
afterwards [those Acts] will be totally subject to his examination
so that he is able to comment upon all of them either in words or in
writing and to propose what he has judged to be necessary or
opportune (Canon 1587).
9. It is fitting that the notary, on the other hand, be present at
all the Acts under pain of nullity or to note down with his own hand
or at least to affix his signature [to the aforesaid Acts] (Canon
1585, 1). Because of the special character of these procedures,
however, it is necessary for the Ordinary to dispense from the
presence of the notary, though because of a reasonable excuse in the
acceptance, as will be noted in its own place, of the denunciations
and also in the expenditure of the degrees of attention or care
expected of a notary in a given situation, as they say, in pursuing
and in examining the witnesses inducted [into the case].
10. Minor helpers are to be used for nothing unless it is absolutely
necessary; and these are to be chosen, in so far as possible, from
the priestly order; always, however, they are to be of proved
faithfulness and mature without exception. But it must be noted
that, if, when necessity demands it, they can be nominated to accept
certain acts, even if they are non -subjects living in another
territory or the Ordinary of that territory [can] be interrogated
(Can. 1570, 2), observing, of course, all of the cautions treated as
above and in Canon 1613.
11. Because, however, what is treated in these cases has to have a
greater degree of care and observance so that those same matters be
pursued in a most secretive way, and, after they have been defined
and given over to execution, they are to be restrained by a
perpetual silence (Instruction of the Holy Office, February 20,
1867, n. 14), each and everyone pertaining to the tribunal in any
way or admitted to knowledge of the matters because of their office,
is to observe the strictest
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secret, which is commonly regarded
as a secret of the Holy Office, in all matters and with all persons,
under the penalty of excommunication latae sententiae, ipso facto
and without any declaration [of such a penalty] having been incurred
and reserved to the sole person of the Supreme Pontiff, even to the
exclusion of the Sacred Penitentiary, are bound to observe [this
secrecy] inviolably. Indeed by this law the Ordinaries are bound
ipso jure or by the force of their own proper duty.
The other
helpers from the power of their oath which they must always take
before they undertake their duties. And these, then are delegated,
are interpolated, and are informed in their absence by means of the
precept in the letters of delegation, interpellation, [or of]
information, imposing upon them with express mention of the secret
of the Holy Office and of the aforementioned censure.
12. The aforesaid oath, the formula for which is to be found in the
appendix of this instruction (Form A), must be used (by those,
obviously, who will use it habitually, once for all; by those,
however, who are deputed only for some determined piece of business
or case, as often as required (toties quoties), in the presence of
the ordinary or his delegate done upon the Gospels of God (also by
priests) and not otherwise and with the added promise of fulfilling
faithfully their duty, to which, however, the excommunication,
mentioned above, is not extended.
There must be an avoidance,
moreover, by those who are set over those involved in these cases,
lest anyone be admitted to a knowledge of the matters from helper,
unless in some way a party or an office to be performed by that
person necessarily requires a knowledge of these matters.
13. The oath of keeping the secret must be given in these cases also
by the accusers or those denouncing [the priest] and the witnesses.
To non of these, however, is there a subjection to a censure, unless
by chance toward these same persons some censure has been expressly
threatened upon the person himself, for his accusation, his
deposition or of his violation (Excussionis?) [of such] by act. The
accused, however, should be most seriously warned that even he, with
all [the others], especially when he observes the secret with his
defender, is under the penalty of suspension a divinis in case of a
transgression to be incurred ipso facto.
14. Finally, as for the publishing, the language, the confirmation,
the custody of and the accidental nullity, in every way [these
matters] must be observed which are prescribed by Canons 1642-43,
379-80-82 and 1680 respectively.
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TITLE NUMBER ONE
THE FIRST KNOWLEDGE OF THE CRIME
15. Since the crime of solicitation takes place in rather rare
decisions, lest it remain occult and unpunished and always with
inestimable detriment to souls, it was necessary for the one person,
as for many persons, conscious of that [act of solicitation],
namely, the solicited penitent, to be compelled to reveal it through
a denunciation imposed by positive law. Therefore:
16. "According to the Apostolic Constitutions and especially of the
Constitution of Benedict XIV Sacramentum Poenitentiae of June 1,
1941, the penitent must denounce the accused priest of the delict of
solicitation in confession within a month to the Ordinary of the
place or to the Holy Congregation of the Holy Office;, and the
confessor must, burdened seriously in conscience, to warn the
penitent of this duty." (Canon 904.
17. Moreover, according to the mind of Canon 1935 anyone of the
faithful can always denounce the derelict of solicitation, of which
he will have had a certain knowledge; also, the obligation of
denunciation urges as often as the person is bound to it from the
natural law itself because of the danger to faith or religion or
other imminent public evil.
18. "The faithful, however, who knowingly have disregarded the
obligation to denounce the person by whom he was solicited, against
the prescription (related above) of Canon 904, within a month, falls
into an excommunication reserved latae sententiae, not to be
absolved unless after he has satisfied the obligation or has
promised seriously that he would do so" (Can 2368, 2).
19. The duty of denunciation is a personal one and is to be
fulfilled regularly by the person himself who has been solicited.
But if he is prevented by the most serious difficulties from doing
this, then either by letter or by another person favorable to him
should approach the ordinary or the Holy Congregation of the Holy
Office or the Sacred Penitentiary, revealing all the circumstances
(Instruction of the Holy Office, February 20, 1967, n. 7).
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20. Anonymous denunciations must generally be rejected. However,
they can have supportive force or give the occasion for further
investigations, if the particular circumstances of the matters
involved render an accusation probable. (Cfr Can. 1942, 2).
21. The obligation of denunciation on the part of the solicited
penitent does not cease because of a spontaneous confession by the
soliciting confessor done by chance, nor because of his being
transferred, promoted, condemned, or presumably reformed and other
reasons of the same kind. it ceases, however, at his death.
22. Sometimes it happens that the confessor or another ecclesiastic
man is deputed to receive some denunciation, together with an
instruction concerning the acts to be assumed for a judicial reason.
Then that person is to be expressly warned that he should tell
everything to the Ordinary or to the person whom he deputed, keeping
no example or trace of it to himself.
23. In receiving the denunciation, this order is to be regularly
observed: First an oath to tell the truth while touching the Holy
Gospels is to be given to the person making the denunciation; he
should be interrogated according to the formula (formula E),
circumspectly, so that he narrates each and every circumstance
briefly, indeed, and decently, but clearly and distinctly,
pertaining to the solicitations he has suffered. In no way, however
is it to be extracted from him whether he has consented to the
solicitation. Rather, he should be expressly advised that he is not
bound to manifest his consent which he perhaps gave. The responses
[in uninterrupted fashion], not only as to what pertains to the
substance but even to the words themselves of the testimony (Canon
1778) should be consigned to writing.
The entire instrument [of the
testimony] should be read in a clear and distinct voice to the one
denouncing [the priest], giving [the one denouncing the priest] the
option of adding, suppressing, correcting, or varying [his
testimony]. His signature is then to be exacted [from him], or, if
he does not know how to write, or cannot, the sign of the cross. And
with him still being present, there should be added the signature of
the person receiving the testimony, and if he is present (Cfr. n.
9), of the notary. And before he is dismissed, there should be
presented to him, as above, an oath of observing the secret,
threatening him, if there is a need, with an excommunication
reserved to the Ordinary or to the Holy See (Cfr. n. 13).
24. Even if, sometimes, for grave obstructing reasons always to be
expressed in the acts, this ordinary practice cannot be observed, it
is permitted that one or the other form from the prescribed forms,
saving however the substance,
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be omitted. Thus, if the oath
cannot be taken upon the Holy Gospels, it can be given with some
notion and also with words only. If the instrument of denunciation
cannot be put into writing in an uninterrupted fashion, it can be
written down at a more opportune time and place by the interviewer
(the recipient of the denunciation) and then confirmed and signed by
the person who is denunciating in the presence of the one receiving
the denunciation; if the instrument itself cannot be read to the
denouncer, it can be given to him to read.
25. In more difficult cases, however, it is also permitted for the
denunciation (the previous permission of the denunciator having been
given, lest the sacramental seal seemingly be violated, and on a day
convenient to each party and in the confessional itself, it is to be
read or given to read, and is confirmed with an oath and with one's
proper signature or the sign of the cross (unless to do this is in
every way impossible). Concerning all of these things, as has been
said in the number above, an express tention [sic] must always be
made in the Acts.
26. Still, if an entirely serious case also that is also clearly
extraordinary urges, then the denunciation can also be done through
a written account by the one denouncing, as long as, however, it is
before the Ordinary of the place or his delegate and notary, if her
is present (cfr. n. 9), and afterwards confirmed by an oath and
signed. The same must be said concerning an informal denunciation,
through a letter, for example, or given orally in an extrajudicial
manner.
27. Any denunciation once accepted, the Ordinary is bound most
gravely to communicate this as soon as possible to the promoter of
the justice who must declare in writing, whether the specific crime
of solicitation in the first sense is present in the case or not,
and whether the ordinary disagrees with this or not. Within ten days
he must submit the matter to the Holy Office.
28. If, on the other hand, the Ordinary and the promoter of justice
agree together, or in some way the promoter of justice does not make
his recourse to the Holy Office, then the Ordinary, if he has
decreed that the specific delict of solicitation was not present,
should order the Acts to be put into the secret archives, or he
should use his right and duty according to the nature and gravity of
the things that have been denounced. If, however, he believed that
they were present, then he should proceed to the inquisition. (Cfr.
Can. 1942, 1).
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TITLE NUMBER TWO
THE PROCESS
Chapter I - The Inquisition
29. When the knowledge concerning the crime of solicitation is known
first through the denunciations, a special inquisition must be
pursued "so that it may become clear whether and on what foundation
the imputation rests" (Canon 1939, 1); and this by the fact or even
more so, since a crime of this type, as has already been stated
above, is usually done in secret, and direct testimonies concerning
[solicitation], especially from the hurt party, can only rarely be
obtained.
Once the inquisition is open, and if the denounced priest is a
religious, the Ordinary can prevent him from being transferred
before the conclusion of the process.
For the most part, there are three areas which such an inquisition
must cover, and they are:
a) the past history of the denounced person;
b) the consistency of the denunciation;
c) other persons solicited by the same confessor or, however
conscious of the crime, whether any of them, as not rarely happens,
have been persuaded [to make the denunciation] by those denouncing.
30. Therefore, as to what pertains to the first letter (a), the
Ordinary at the same time as he has accepted some denunciation of
the crime of solicitation, if the one denounced, whether from the
secular clergy or is a regular (cfr. n. 4), which residence in his
territory, should try to find out from the archives whether other
accusations against him are on record, even of a different type;
and, if by chance he had previously been living in other
territories, he should seek, even from the respective Ordinaries,
and, if [he is a] religious, also from the regular superiors,
whether they have anything which can aggravate the situation in any
way. But he will accept these documents, referring to them in the
Acts as accumulated together whether for a judgment, by reason of
content [continentia] or association of causes [connexio] (cfr.
Canon 1567), and thus all the matters will be brought forward
together;
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or for the establishment and consideration of an
aggravating circumstance of recidivism according to the sense of
Canon 2208.
31. If the whole matter concerns a denounced person who does not
have residence in his territory, the Ordinary should transmit all
the acts to the Ordinary of the one who has been denounced, or, if
he does not know who this might be, [he will transmit all the acts]
to the Supreme Holy Congregation of the Holy Office reserving the
right, in the meanwhile, to deny to the denounced priest the faculty
of exercising the ecclesiastical ministries in his own diocese or of
revoking them already by chance conceded to him, in the event that
he approaches [the Ordinary for these faculties] or returns [to the
diocese of the Ordinary].
32. As to what pertains to the second letter (b), the importance of
each denunciation, of their qualities and of the circumstances must
be weighed seriously and accurately so that it is evident how they
themselves merit belief. It is not sufficient that [this be done] in
any way whatsoever, but it is necessary that this become known by
means of an established and a judicial form; this customarily is
signified in the Tribunal of the Holy Office by the phrase
"diligentias peragere" [to undertake all the required formalities.
33. In order to arrive at this purpose [of undertaking all the
required formalities], as soon as the Ordinary shall have accepted
any denunciation of the crime of solicitation, either personally or
through a priest, he will summon, either personally or through a
priest specially delegated to do so, two witnesses (he summons them
separately and with appropriate circumspection) two witnesses, in so
far as it is possible, from the ranks of the ecclesiastics. But it
is far better, above any exception, to summon persons, who are
familiar with both the one denounced and the one denouncing.
These
persons, with the notary present (cfr, n, 9), who is to put the
interrogations and responses in writing, [are put] under the
sanctity of an oath to tell the truth and to observe its secret
nature, accompanied by the threat, if it seems necessary, of
excommunication reserved to the Ordinary of the place or to the Holy
See (cfr. n. 13). He will interrogate them (Formula G), concerning
the life, morals and public reputation both of the one denounced and
of the one denouncing. [They will be asked] whether they think that
the one denouncing is worthy of credence; or whether, on the other
hand, that person is capable of lying, of calumniating and of
perjuring himself; and whether these persons know whether there has
ever been any case of hatred, grudge or reason for enmity between
the one denouncing and the denounced person.
34. If the denunciations are many in number, there is nothing to
prevent the same [character] witnesses to be used for all or [to use
different] witnesses, always being careful to have a double
testimony as to the denounced and any denouncer.
35. If two witnesses cannot be found where each individual knows
both the denounced and the denouncer, or if they cannot be
interrogated at the same time without the danger of scandal
++14++
or without detriment to the good name concerning him, then
arrangements to be made, so that two persons, by means of a divided
[dimidiatae] [testimony], namely, interrogate two witnesses only
about the denounced and another two only about the individual
denouncers. In this case, however, it will be necessary to inquire
elsewhere as to whether hatred, enmity or any other human
disaffection against the denunciated [priest] was the case.
36. If not even the divided efforts cannot be pursued, or because
capable witnesses cannot be found or because scandal or detriment
has to be feared and rightly so, there is the possibility of
substituting, cautiously, however, and prudently [for the witnesses]
with extrajudicial information about the denounced and the ones
denouncing and their mutual personal relationships, with [all of
this] put into writing; or [the same results can come about] also
through supportive proofs which corroborate or weaken the
accusation.
37. This [article], then, pertains to the third letter (c). If in
the denunciations, which happen not rarely, some persons are
influence, perhaps also solicited, or others who can [simply] bring
forward testimony concerning for some type of reasons. All of these
people must be examined severally (that is, separately) according to
the judiciary formula [below.] (Formula I). First of all, they must
be interrogated through general matters, and then, by degrees, as
the matter evolves, arriving at the particulars whether and how they
had really been solicited, or did they know or hear that other
persons had been solicited (Instruction of the Holy Office, February
20, 1867, n. 9).
38. The greatest circumspection must be used in inviting these
persons to this interview; for it will not always be opportune to
bring them to a public place such as the chancery, especially if
these are girls who are being subjected to the examination, married
women, or those who are domestics. If those to be examined live
either in monasteries, in hospitals or in pious homes for girls,
then, the particular [persons] should be summoned with great
diligence and on different days according to circumstances
(Instruction of the Holy Office, July 20, 1890).
39. What was said above about the way to receive the denuciations,
will also be applied, changing what has to be changed (mutatis
mutandis), to the examination of persons who have been brought
forward.
++15++
[If the examination of these persons, who corroborate each other by
positive evidence, and because of which examinations there exists
[therefore] either an arraigned priest or another person weighed
down [with some accusations], then the denunciations that are true
and strictly speaking denunciations and all the rest of the
information about these [denunciations] are pursued regarding the
qualification of the crime, regarding the resumption of the
preceding acts and of the resumption of the efforts to be taken in
accordance with what is prescribed above.
41. Once, however, all these matters are taken care of, the Ordinary
is to communicate the Acts to the promoter of justice, who will see
now whether all the procedures [actions] have been performed
correctly or not. And, if he thinks that there is nothing against
their acceptance, he should declare the inquisitorial process
closed.
Chapter II: Canonical Directives and the Admonition of the Accused
42. When the inquisitorial process has been closed, the Ordinary,
having heard the promoter of justice, should proceed as follows,
namely:
a) if it is evident that denunciation totally lacks a foundation, he
should order this to be declared in the Acts, and the documents of
the accusation should be destroyed;
b) if the indications of the crime are vague and indeterminate or
uncertain, he should order that the Acts be put into the archives,
to be taken up again if something else happens in the future;
c) if, however, there are indications of a crime serious enough but
not yet sufficient to institute an accusatorial process, as
especially in the case where only one or two denunciations are had,
where indeed, [the regular process was followed] with diligence but
were not corroborated by any or insufficient proofs (cfr. n. 36), or
even many [proofs] but with uncertain procedures or procedures that
are deficient, he should order that the accused be admonished
according to the different [types of] cases (Formula M) the first or
second [time?], paternally, seriously or most seriously according to
the norm of Canon 2307, adding, if necessary an explicit threat of
the trial process, should some other new accusation is laid upon
[the accused]; the Acts, as above, should be kept in the archives
and in meanwhile a check should be kept on the morals of the accused
(Canon 1946, 2, n. 2:
d) If then certain or at last probable arguments to institute the
accusation are present, he should offer the accused to be cited and
be subjected to the matters [which are prescribed for this trial].
++16++
44. If, after the first admonition, other accusations against the
same accused take place concerning solicitations, preceding the
admonition itself, the Ordinary should see, according to his own
choice and conscience, whether the first admonition should be
considered sufficient or whether he should proceed to a new
admonition or even to further measures (Ibiden, 6).
45. It is the right of the Promoter of Justice to appeal and to have
recourse for an accused against the canonical prescriptions of this
kind it to the Holy Congregation of the Holy Office within ten days
from their dissemination or intimation. In this case, the Acts of
the case will have to be transmitted to the same Holy Congregation
according to the prescription of Canon 1890.
46. These actions, however, even if put into effect, do not
extinguish the penal action, and therefore, when other accusations
by chance take place, a method will be followed concerning those
matters which also have given cause to the said canonical
instructions.
Chapter III - The decrees for the accused persons
47. When once there is sufficiency to institute an accusation, as
was said above in number 42 (d), arguments should be made openly,
and the Ordinary, having heard the promoter of justice and having
observed everything, in so far as the peculiar nature of these cases
allows, which is stated concerning the citation and denunciation of
judicial acts in Book IV, Title VI, Chapter II, of the code, shall
issue a decree (Formula O) concerning the accused in the presence of
the Ordinary or before a judge delegated by himself (cfr. n. 5),
citing [him] for crimes introduced and brought against him, which in
the forum of the Holy Offices are said in unclassical parlance "Reum
constitutis subiicere" [to subject the accused to an indictment];
and he will take care to bring this information to the accused
himself in accordance with canonical principles.
48. The judge should paternally and gently exhort the accused, who
has now been cited, when he appears, and before the indictments are
formally begun, to confession, and, when he has consented to these
exhortations, the judge, having summoned the notary or
++17++
even, if he has found it more opportune (cfr. n. 9) without his
intervention, can receive the confession.
49. In this case, if the confession is found corroborated by the
Acts and substantially complete, a vow first having been taken, the
Promoter of the Justice puts the case in writing, omitting the other
formalities (See below, in Chapter IV), and he will be able to
conclude [all of this] with a definitive decision, having given,
however, to the accused the option of accepting the decision itself
or of petitioning to have the regular and complete process carried
out to the end.
50. If, however, on the other hand, the accused as denied the crime,
or has made a confession that is not substantially integral, or even
has summarily refused the decision in view of his confession, the
judge, with the notary present, should read him the decree by which
he declares, concerning which paragraph 47 speaks, and the
deliberations are then opened.
51. The trial opened, the judge can, having heard the Promoter of
Justice according to the mind of Canon 1956, suspend the accused
respondent either from exercising any sacred ministry at all or only
from hearing the sacramental confessions of the faithful up until
the time of the judgment. If, however, by chance he things that [the
accused] can impose fear upon the witnesses or secretly instigate
them [to thwart the trial] or in any way impede the course of
justice, he can also, having also heard the promoter of justice,
order that he go to a predefined location and remain there under
special vigilance (Canon 1957). And, on the other hand, [however],
each decree of this type is not given a remedy in law (Canon 1958).
52. These things having been taken care of, there should be a
procedure to present the accusation to the person accused, according
to Formula P, having cautiously and most diligently made sure that
the persons of the accused and especially of those denouncing him
not be revealed, and, on the part of the accused, that he in no way
violate the sacramental seal. Now if something in the surge of
speech slips out which seems to savor of either a direct or indirect
violation of the seal, the judge should not permit this to be
referred to in the Acts by the notary; an if, by chance, it has been
inconsiderately [put into the Acts], he should order, as soon as he
notices it, to be completely deleted. In every way the judge is to
remember that it is never right for him to bind the accused by an
oath to tell the truth (Cfr. Canon 1744).
53. The indictment of the accused having been completed in all
matters and the Acts having been seen and approved by the Promoter
of Justice, the judge is to issue a decree concerning the conclusion
of the case (Canon 1860), and, if by chance he is a delegated judge,
he should transmit all the papers of the proceedings to the
Ordinary.
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54. If it happens, however, that the accused remains countumacious,
or, for some grave reasons the indictments cannot be pursued in the
diocesan Curia, the Ordinary, saving to himself the right of
suspending the accused a divinis, should defer the entire case to
the Holy office.
Chapter IV - The Discussion of the Case, the Definitive Decision,
and the Appeal
55. The Ordinary, having received the Acts, unless he wishes himself
to proceed to the definitive decision, should delegate the judge
(cfr. n. 5), another one, in so far as it can be done, different
from the one who conducted the inquisition or the indictment (cfr.
Canon 1941, 3). The judge, however, whoever he is, whether the
Ordinary or his delegate, should designate, according to his prudent
decision a space of time for the defender to prepare a defense and
to tender this in a double copy, one copy to be given to the judge
himself and the other copy to the Promoter of Justice (cfr. Canons
1862-63-64). However, the promoter of justice, within a time period
likewise previously established by the judge, should tender in
writing his own inquiry (requisitoriaum) as they now call it.
56. Still, a congruent time having been interposed (Canon 1870), the
judge according to his conscience informed from the Acts and from
the proofs (Canon 1869), will pronounce a definitive decision,
either a condemnatory decision, if he is certain of the crime, an
acquittal, if he is certain of his innocence; or an abandonment of
the charges, if he is invincibly doubtful because of the lack of
proofs.
57. The decision is rendered according to the respective formulas
connected to this Instruction and will have been put in writing,
with the addition of an executory decree (Canon 1918). First of all,
the Promoter of Justice having been notified beforehand, the
decision must be solemnly made known to the accused, who has been
cited for this by the judge who is presiding at the Tribunal, with
the notary present. If, however, the accused, rejecting the
citation, has not appeared, the intimation of the decision should be
made through letter, having obtained exact testimony of its
reception through the public post office.
58. Both the accused, if he thinks that he has been [wrongly
treated], and the promoter of justice have the right of appealing
from this decision to the Supreme Tribunal of the Holy Office,
according to the prescription of Canon 1879 and following within ten
days from the solemn notification of the same; and the appeal of
this type has the effect of suspending the decision [suspensive],
but not so, if it is given (Cfr. n. 51) for a suspension from the
hearing
++19++
of sacramental confessions or from exercising a
sacred ministry.
59. The appeal having been made, the judge must transmit an
authentic copy or the original itself of all the Acts of the case to
the Holy Office, as quickly as it can be done, adding information as
necessary or as he has judged to be opportune (Canon 1890).
60.As for the complaint, then, of nullity, as sometimes might occur,
let those details prescribed by Canons 1892-97 be observed to the
last detail. However, what pertains to the execution of the
decision, those prescriptions should also be observed, according to
the nature of these cases, as is found in Canons 1920-24.
++20++
TITLE NUMBER THREE
PENALTIES
61. "He who has committed the crime of solicitation..., should be
suspended from the celebration of Mass and from the hearing of
sacramental confessions or even, according to the gravity of the
delict, should be declared incapable of accepting them. He should be
deprived of all benefices and dignities, of his active and passive
voice, and be declared incapable for all these [honors and
capacities], and in the more grievous cases also be subjected to
reduction [to the lay state]. Thus states the Code in Canon 2368, 1.
62. For a correct and practical application of this canon, in
penalties decreed against priests convicted of the crime of
solicitation with an equal regard for the mind of Canon 2218, 1,
these matters, especially for estimating the gravity of the crime,
should be kept before one's eyes, namely: the number of persons
solicited and their condition, as, for example, if they are minors
in age or especially consecrated through religious vows to God; the
form of solicitation, if perhaps, especially, it is joined with
false teaching or false mysticism; the turpitude of the acts not
only formal but also material and especially the connection of
solicitation with other delicts; the length of the obscene
conversation [between the parties involved]; the repetition of the
crime, the recidivism after his admonition, and the obstinate malice
of the solicitor.
63. To the greatest penalty of degradation, there can be added for a
religious who is accused the reduction to the status of a
lay-brother. This is only then imposed when, having weighed
everything, it evidently appears that the accused, immersed in the
depths of malice in the abuse of his sacred ministry, combined with
the grave scandal that is harmful to the faithful and their souls,
exists to such a degree of foolhardiness and habit, so that there is
no hope, humanly speaking, or almost no hope, of his amendment that
is evident any more.
64. On top of the penalties properly imposed, in order to obtain the
effect of these penalties more fully and securely, there will be
supplementary sanctions in cases of this type, namely:
++21++
a) Upon all accused persons judicially convicted there should be
interposed congruous, to the degree of the faults, and salutary
penances, not in substitution for the penalties properly speaking in
the sense of (Canon 2312, 1), but as a complement [to them], and
among these (cfr. Canon 2313) especially spiritual exercises for
some days in some religious house to be performed with a suspension,
during these times, from the celebration of Mass.
b) Upon the accused convicted who has confessed, moreover, there
should be imposed an abjuration, according to different cases, if
there is a light or a strong suspicion oh heresy into which because
of the nature of the crime soliciting priests fall into, or even of
formal heresy if by chance the crime of solicitation has been joined
to false dogma.
c) Those who are in danger of falling back [into their former ways],
and therefore of becoming greater recidivists should be submitted to
particular vigilence (Canon 2311).
d) As often as, in the prudent judgment of the Ordinary, it seems
necessary for the amendment of the delinquent, for the removal of
the near occasion [of soliciting in the future], or for the
prevention of scandal or reparation for it, there should be added a
prescription for a prohibition of remaining in a certain place
(Canon 2302).
e) Then, when concerning the absolution of an accomplice, as this is
outlined in the Constitution Sacramentum Poenitentieae, there is no
indication at all in the external forum, and, therefore, of the
sacramental seal, there can be reason to add at the end of the
condemnatory sentence an admonition to the accused that, if he has
by chance absolved his accomplice, he should quiet his conscience by
having recourse to the Sacred Penitentiary.
65. According to the norm of Canon 2236, 3, all of these penalties,
as they have been applied once by the judge ex officio, cannot be
remitted except by the Holy See through the Supreme and Sacred
Congregation of the Holy Office.
++22++
TITLE IV
OFFICIAL COMMUNICATIONS
66. Whenever an Ordinary immediately accepts a denunciation of the
crime of solicitation, he should not omit telling this to the Holy
Office. And if by chance he treats of a priest whether secular or
religious having residence in another terriroty, he should transmit
at the same time (as has already been stated above, n. 31) to the
Ordinary of the place, where the denounced actually is staying, or,
if the address is not known, he should send to the Holy Office an
authentic copy of the denunciation itself with the procedures, in
the best manner possible, and with opportune information and
declarations.
67. Any Ordinary who has proceeded correctly against some priest who
is soliciting, should not omit informing the Holy Congregation of
the Holy Office, and, if it is a matter in which a religious is
involved, also the General Superior concerning the outcome of the
case.
68. If any priests condemned of the crime of solicitation, or even
only admonished, should transfer his residence to another territory,
the Ordinary a quo should immediately warn the Ordinary ad quem of
the things that preceded that person and of his juridical status.
69. If any priest suspended in a case of solicitation from hearing
sacramental confessions but not from sacred preaching happens to go
to another territory to preach, the Ordinary of this territory
should be reminded by the prelate of the accused, whether secular or
religious, that he cannot be utilized for hearing sacramental
confessions.
70. All these official communications shall always be made under the
secret of the Holy Office; and since they concern the common good of
the church to the greatest degree, the precept of doing these things
obliges under serious sin [sub gravi].
++23++
TITLE V
THE WORST CRIME
71. By the name of the worst crime is understood at this point a
signification of any obscene external deed, gravely sinful, in any
perpetrated by a cleric or attempt with a person of his own sex.
72. Those things that have been stated concerning the crime of
solicitation up to this point are also valid, changing only those
things necessary to be changed by their very nature, for the worst
crime, if someone by chance in the presence of the Ordinary of the
place, concerning which (which God may prevent) happens to be the
accused, having accepted the obligation of the denunciation from the
positive law of the Church, unless perhaps it has been joined withe
the crime of solicitation in sacramental confession. In decreeing
penalties, however, against delinquents of this type, besides those
which are found spoken of above, and they should also be kept before
one's eyes (Canon 2359, 2).
73. To have the worst crime, for the penal effects, one must do the
equivalent of the following: any obscene, external act, gravely
sinful, perpetrated in any way by a cleric or attempted by him with
youths of either sex or with brute animals (bestiality).
74. Against accused clerics for these crimes, if they are exempt
religious, and unless there takes place at the same time the crime
of solicitation, even the regular superior can proceed, according to
the holy canons and their proper constitutions, either in an
administrative or a judicial manner. However, they must communicate
the judicial decision pronounced as well as the administrative
decision in the more serious cases to the Supreme Congregation of
the Holy Office.
++24++
FROM THE AUDIENCE OF THE HOLY FATHER, MARCH 16, 1962
Our Most Holy Father John XXIII, in an audience granted to the most
eminent Cardinal Secretary of the Holy Office on March 16, 1962,
deigned to approve and confirm this instruction, ordering upon those
to whom it pertains to keep it and observe it in the minutest
detail.
At Rome, from the Office of the Sacred Congregation, March 16, 1962.
Place of the seal . . . . . . . . .
A. Cardinal Ottaviani
