Prawo Kanoniczne

57 (2014) nr 4

O. DARIUSZ BOREK, O. CARM.

THE CANONICAL DELICTS LIABLE TO PENAL

SANCTIONS RESERVED TO THE APOSTOLIC SEE
Summary: Introduction. – 1. Profanation of consecrated species. – 1.1. Essential
features of a delict. – 1.2. Penal sanctions. – 1.3. Indications regarding request for
remission of penalty. – 2. Physical assault upon the Roman Pontiff. – 2.1. Essential
features of a delict. – 2.2. Penal sanctions. – 2.3. Indications regarding request
for remission of penalty. – 3. Absolution of an accomplice in a sin against the
sixth commandment of the Decalogue. – 3.1. Essential features of a delict. –
3.2. Penal sanctions. – 3.3. Indications regarding request for remission of penalty. –
4. Consecration of a bishop without a pontifical mandate. – 4.1. Essential features of
a delict. – 4.2. Penal sanctions. – 4.3. Indications regarding request for remission of
penalty. – 5. Direct violation of sacramental seal. – 5.1. Essential features of a delict.
– 5.2. Penal sanctions. – 5.3. Indications regarding request for remission of penalty. –
6. An attempt to ordain a woman to the priesthood. – 6.1. Essential features of a delict.
– 6.2. Penal sanctions. – 6.3. Indications regarding request for remission of penalty.

Introduction
Amongst various forms of cessation of penalties within the Church
law it is remission which is of significant importance, be the subject
of eight out of nine canons. Its priority is connected with a peculiar
role of the institution dealing with exemption from penalties, as largely
proved in the course of history and canonical practice1. And this special
legal faculty derives from the very nature of cessation of penalty in ef-
fect of remission. It is invariably the act of administrative body which
is necessary to exempt the faithful from the penalties of excommuni-
cation, interdict or suspension. This singular aspect of cessations of
ecclesiastical penalties is closely associated with the redemptory aim

1
A. Borras, Les sanctions danas l’Église, Paris 1990, 125.
128 O. D. BOREK [2]

of censures to be imposed on an offender until his reformation (can.

1358 §1). Therefore, the remission is the cessation of penalty upon
the intervention of a competent authority, empowered to exempt from
medicinal penalties (censures) or dispenses from expiatory penalties.
An exemption thus refers to censures and is the act of justice, always
conducted ab homine, whereas a dispense refers to expiatory penalties
and is the act of mercy through which an offender is released from se-
rving an expiatory penalty before its term elapses (it is also possible to
exempt from an expiatory penalty by a competent superior).
According to the currently applicable canon law it is exclusively
the Apostolic See which has the power herself or can empower ano-
ther subject to remit penalties. This reservation of power to exempt
from penalties is possible only at the moment of adjudging a sentence,
whether in a decree or order2. It should be noted that the sentences
adjudged by the Holy See in her penal orders are also strictly reserved.
It is absolutely impossible to reserve penalties in the course of trial,
and the penalty which has not been strictly reserved before, cannot
become such at the moment of its pronouncement or imposition. Con-
sidering the dispositions included in cann. 1355 §1 and 1356 §1, and
the requirement of closest interpretation as specified in can. 1354 §3,
it should be acknowledged that a reservation clause in a judgment or
decree, regarding pronouncement or imposition of a penalty, must not
be inserted.
Whether reservation has a penal or civil nature is a widely discus-
sed problem of the doctrine of the canon penal law. Some experts cla-
im that the basis of reservation is not penalty itself but maintaining
public good and church discipline. Others infer, besides public good,
the penal aspect of it. In its strict meaning, reservation is definitely not
a penalty, nor does it increase penalty prescribed in a legal act, altho-
ugh it may impede the proceedings towards penalty remission. From
the delinquent’s perspective it is far more difficult for him to receive
exemption from a penalty reserved by the Apostolic See than from an
unreserved one. It should be assumed that reservation is a kind of ad-

2
Cf. CIC/1983, cann. 1355 §1, 2 and 1356 §1.
[3] THE CANONICAL DELICTS 129

ministrative regulation rather than penal law in view of the fact that it
does not produce any circumstances inhibiting sanity (e.g. ignorance3.
The Code of Canon Law from 1983 prescribes reservation of penal-
ties by the Apostolic See with regard to serious delicts in exceptional
cases. In the third paragraph of can. 1354 there is a reference to the re-
gulation stated in can. 18, namely the provision of strict interpretation
of reservation. Wherefore, reservation must always be clearly provided
by law and not based on presumption. If there is doubt, legal or factual,
reservation of penalty does not apply (can. 14).
With respect to the penalties reserved to the Apostolic See which
may be remitted, there should be a clear distinction between internal
and external exemptions from penalties. In the case of internal remis-
sions the competent authority remains the Apostolic Penitentiary4. As
regards external remissions, the right to exempt from the penalties rese-
rved to the Apostolic See belongs to the Congregation for the Doctrine
of Faith5. The standard procedure of penalty remission is the external
one. However, due to pastoral reasons the Code of Canon Law provi-
des the precepts for internal remission of penalties. The latter form of
remission is prior to the external or even independent from the external
one. Thus it may be concluded that internal remission of penalties sho-
uld not be a rule, but rather an exception to it.
The aim of this paper is to analyze the delicts which are subject to
excommunication latae sententiae, the exemption from which is rese-
rved to the Apostolic See. To examine these offences it seemed neces-
sary to pay particular attention to the essential features of them, penal
sanctions and indications regarding requests for remission.

3
Por. J. Syryjczyk, Sankcje w Kościele. Część ogólna. Komentarz, Warszawa
2008, 295-296.
4
CIC/1983) can. 64; Joannes Paulus II, Constitutio Apostolica de Romana Curia
Pastor Bonus, 28 iunii 1988, AAS 80(1983), 841-930, art. 117, 118.
5
Cf. Joannes Paulus II, Constitutio Apostolica de Romana Curia ..., art. 52; A. Ca-
labrese, Diritto penale canonico, Città del Vaticano 1996, 237.
130 O. D. BOREK [4]

1. Profanation of consecrated species

The very first delict which the Code of Canon Law of 1983 reserved
to the Apostolic See is the offence specified in can. 1367: “A person
who throws away the consecrated species or takes or retains them for
a sacrilegious purpose incurs a latae sententiae excommunication re-
served to the Apostolic See; moreover, a cleric can be punished with
another penalty, not excluding dismissal from the clerical state”6. It is
the delict consisting in taking or reserving the consecrated species for
sacrilegious purposes, or disposing of them, also for sacrilegious pur-
poses, although the latter is not clearly stated in the canon.
The offence of profanation of consecrated species is classified
among the delicts to be examined, persecuted and punished exclusi-
vely by the Congregation for the Doctrine of Faith, both pursuant to
Norms De gravioribus delictis from 20017 and De delictis reservatis
from 20108.
1.1. Essential features of a delict
When scrutinizing the offence of profanation of consecrated spe-
cies we need to remember that in order to charge with this offence,
the forbidden actions must concern the consecrated species for only in
them does the Catholic faith recognize a factual, real and substantia-
ted presence of the Body and Blood of Jesus Christ. The species are
regarded as consecrated if they are placed in a tabernacle or they are
adored by or given out to the faithful. However, anyone who profanes

6
CIC/1983, can. 1367; CCEO (1990), can. 1442.
7
Congregatio pro Doctrina Fidei, Epistula a Congregatione pro Doctrina Fidei
missa ad totius Catholicae Ecclesiae Episcopos aliosquae Ordinarios et Hierarchos
interesse habentes: de delictis gravioribus eidem Congregationi pro Doctrina Fidei re-
servatis, 18 maii 2001, AAS 93(2001), 785-788.
8
Congregatio pro Doctrina Fidei, Normae de delictis Congregationi pro Doctrina
Fidei reservatis seu Normae de delictis contra fidem necnon de gravioribus delictis
(21.05.2010), AAS 102(2010), 419-434. See also: Congregazione per la Dottrina
Della Fede, Modificate Le norme „de gravioribus delictus”: procedure più efficaci
per contribuire alla cogóiarezza del diritto, L’Osservatore Romano, 16 luglio 2010, 1,
4-5, 8.
[5] THE CANONICAL DELICTS 131

a species not yet consecrated, believing it to be such, commits a sin

but not an offence. The object profaned may be of both species, that
is, bread and wine, although it should be remembered that an offence
is committed even if only one consecrated species has been profaned.
The object legally protected is every part and the whole of consecrated
species of bread and wine. The cited delict does not pertain to direct
celebration of the Sacrament of Eucharist, during which Christ’s Sacri-
fice is re-enacted, but to “consecrated species”. In order to pronounce
an offence we shall deal with species validly consecrated or else there
would not be an offence but rather a sin committed by a person who
intended to profane a consecrated species. To state an offence it is not
necessary that a person should believe in the Sacrament of Eucharist
(however, it should always be a Catholic – cf. can. 1, can. 11, can.
1311). It is enough that a person knows that he deals with bread and
wine, factually consecrated by the rites and doctrine of the Catholic
Church. Moreover, an offence is pronounced if the above mentioned
actions have been carried out with intention of profanation.
The delict of profanation of consecrated species is classified into:
taking (abductio), retaining (retentio) and abandoning (abiectio).
The first form of profanation of consecrated species, as described
in can. 1367, is abduction – taking consecrated species. To take a con-
secrated species is to gather it from a place it is normally kept and put
in another, unadjusted place even if not dirty or improper. The entire
activity must be conducted with a sacrilegious purpose as the very idea
of this offence is not merely to take away consecrated species from
the ritually adjusted place, but to take them in order to profane9. The
purpose is defined as sacrilegious when consecrated species become an
object of insolent and unholy act, of black mass celebrations, satanic
or masonic rites, magical practices, divination and other superstitions.
A sacrilegious purpose is presumed in the event a person who has si-
mulated the receipt of the Holy Communion, yet takes It out from his
mouth and retains in order to throw away into a dustbin or another un-

9
Cf. J. Syryjczyk, Kanoniczne prawo karne, część szczegółowa, Warszawa 2003,
50.
132 O. D. BOREK [6]

clean, foul place, onto the ground or into fire or water10. An offence is
not committed by someone who after receiving the Holy Communion,
takes out the host and for pious purposes retains It in their prayer book,
although he commits a grave sin, as expressly forbidden by the canon
law11. Certainly it is not an offence if consecrated species are taken by
a secular in order to save from fire or profanation, which is not a sa-
crilegious act but rather a praiseworthy deed. The more so if the above
action is carried out by a cleric, deacon or another person entitled to
give out the Holy Communion, and in the case of clerics and deacons
it is their obligation12.
The second form of profanation of consecrated species is retention
– retaining consecrated species. The Congregation for Divine Worship
and the Discipline of the Sacraments in its Instruction of 25 march
2004 reminded of the obligation of storing the Most Holy Sacrament
in a tabernacle, pursuant to all the prescriptions of the liturgical books
and to the norms of law, especially as regards the prevention from the
danger of profanation. Wherefore, it is forbidden to reserve the Bles-
sed Sacrament in a place where there is a danger of profanation13. We
can assume that a person reserving the consecrated species in a place
endangered by profanation is the one who stores It, for instance, in
a pocket, bag, as well as at his house or in a another inappropriate pla-
ce. Yet, so as to pronounce an offence, reserving the consecrated spe-
cies must be made with a sacrilegious purposes. That is why not every
storage of consecrated species beyond properly adjusted places shall
be an offence. For example, a cleric carrying a burse with consecrated
species while walking outside church, going by bus or simply travel-
ling, always ready to administer the viaticum if necessary, certainly
does not reserve consecrated species with sacrilegious purposes, and
hence does not commit an offence, although such practice is forbidden

10
A. Calabrese, Diritto penale …, 272-273.
11
CIC/1983, can. 935.
12
Cf. R. Botta, La norma penale nel dritto della Chiesa, Bologna 2001, 178-179.
13
The Congregation for Divine Worship and the Discipline of the Sacraments,
Instruction, On certain matters to be observed or to be avoided regarding the Most
Holy Eucharist, 130-131, (Kraków 2004), 71-72.
[7] THE CANONICAL DELICTS 133

unless pastoral necessity urges it as stated in can. 935 of the CIC/1983.

Similarly, it is not an offence when a person keeps consecrated species
at home out of wrongly understood piety14. The delict of retaining con-
secrated species is closely linked with the above presented offence of
taking them. Therefore the delinquent who committed an offence of re-
serving consecrated species may be the one who took them before, for
instance when receiving the Holy Communion without consuming It.
And thus the question arises whether a person who has taken consecra-
ted species and then reserves them with sacrilegious purposes commits
two or only one offence. Most probably, it is one offence for these two
acts may be regarded as one, since taking the Holy Eucharist involves
reserving It, although storing might last for a longer period of time. As
rightly observed by J. Syryjczyk, the aim of legislature is to emphasize
the punishability of various subjects of offence, as indeed, it might be
two different persons who take consecrated species and retain them15.
This problem evokes various opinions16. In practice, it may be assumed
that if the same person takes and reserves consecrated species it should
be regarded as one offence, albeit of bigger gravity17.
The third form of profanation of consecrated species is abiectio
– abandoning them. The abandoning (Latin. abiectio from abicere –
abandon), interpreted in its broadest sense, as prescribed by the Pon-
tifical Council for the Interpretation of Legislative Texts, denotes vo-
luntary and greatly contemptuous act towards consecrated species18.
14
Cf. A. Calabrese, Diritto penale…, 273.
15
J. Syryjczyk, Profanacja Eucharystii według karnego ustawodawstwa kanonicz-
nego i polskiego prawa karnego, Prawo Kanoniczne 29(1986) nr 3-4, 197-198.
16
Cf. The opinions that a person who has taken and retained consecrated species
commits one offence are the following: A.G. Urru, Punire per salvare. Il sistema pe-
nale nella chiesa, Roma 2002, 198; A. Calabrese, Diritto penale…, 274; J. Syryjczyk,
Kanoniczne prawo karne…, 50-51. The contrary opinions are shared by: R. Botta, La
norma penale…, 179.
17
Cf. A. Calabrese, Diritto penale…, 274.
18
“Patres Pontificii Consilii de Legum Textibus Interpretandis, in plenario coetu diei
4 iunii 1999, dubio, quod sequitur, respondendum esse censuerunt ut infra: D. Utrum
in can. 1367 CIC et 1442 CCEO verbum <abicere> intelligatur tantum ut actus proici-
endi necne: R. Negative et ad mentem. Mens est quamlibet actionem Sacras Species
voluntarie et graviter despicientem censendam esse inclusam in verbo <abicere>”,
134 O. D. BOREK [8]

Wherefore, abandoning consecrated species should be understood as

throwing them away or throwing onto the ground, into fire, rubbish tip,
latrine or another dirty place, out of contempt, disrespect, malice, ha-
tred towards God or out of any other reason. Abandoning also denotes
treading on consecrated species, expectorating on the Holy Host after
receiving It, as well as expectorating on consecrated species, throwing
manure or wastes onto them or shooting to them19. Furthermore, the
expression „quamlibet actionem Sacras Species voluntarie et graviter
despicientem” should also include the situations when the Holy Sacra-
ment, presented for adoration, becomes an object of insult and profa-
nity20. Obviously, the above described acts are presumed as malicious
and sacrilegious. Yet profanation does not take place if a thief who
steals a pyx with consecrated species, has first put hosts on the altar or
tabernacle, that is, in proper and consecrated places for storing. Howe-
ver, if a thief while stealing a precious chalice, spills onto the ground
or some other improper place consecrated wine, commits the offence
of profanation. The offence might be avoided if he poured wine into
another container, e.g. a glass and put it on an altar21.
The case of profanation of consecrated species must involve so
called specific dolus, occurring when besides general dolus22, there

Pontificium Consilium de Legum Textibus Interpretandis, Responsio ad propositum

dubium, 4 iunii 1999, Communicationes 31/1 (1999), 38.
19
The described actions had not been regarded as acts of profanation of the Most
Holy Sacrament according to the close interpretation of word „abandon”, but until
1999 had been classified as delicts of profanation pursuant to can. 1376 CIC/1983, cf.
J. Syryjczyk, Kanoniczne prawo karne…, 49.
20
Pontificium Consilium de Legum Textibus Interpretandis, Tutela della Sanctissi-
ma Eucaristia, Communicationes 31/1 (1999), 40. See also: D. Cito, Delicta graviora
contro la fede e sacramenti, in: Questioni attuali di diritto penale canonico, Studi Giu-
ridici XCVI, Città del Vaticano 2012, 40.
21
The described case of spilling consecrated wine is rather hypothetical as the wine
consumed during the Eucharist oblation is consecrated and such an offence can hardly
occur. However, it might happen that a priest co-celebrating the Holy Mass or a secular
participating in celebration, receiving the Chalice with the Blood of Christ, or seculars
drinking the consecrated wine, might spill It onto the ground.
22
General dolus occurs when there is only an ordinary intent of violating the law
which is sufficient to pronounce an offence while motivation and purpose are not im-
[9] THE CANONICAL DELICTS 135

is a specific intent, special motivation of a delinquent to commit an

offence. It should be noted that if a particular delict requires speci-
fic dolus as a constitutive element, this offence is regarded as accom-
plished irrespective of an intent realized or not. And on the contrary,
a delict is not regarded as such if a purpose required for an offence to
be pronounced is not present in an intent nor projected by an offender.
For this instance, the offence of profanation of consecrated species is,
according to can. 1367 an offence with a specific purpose, that is, it
requiring deliberate specific guilt: abandoning, taking and reserving
of consecrated species must be committed in sacrilegum finem. The-
refore, if a delinquent takes away consecrated species with a purpose
of profanation, but does not finally accomplish this act, a deliberate
specific guilt has occurred, and consequently, sanity of actions. Yet, if
a person takes away consecrated species without intent of profaning
them (no in sacrilegum finem action), nor planning such an act or even
not considering it (taking the Host home out of pious reasons – to adore
It), does not commit an offence. In the latter case there is no required
intention of committing a delict, although undoubtedly it is morally
disapprovable.
1.2. Penal sanctions
For a delict of profanation of consecrated species the Code of Ca-
non Law, can. 1367, prescribes the penalty for everybody who have
committed this offence and, additionally, another penalty may be im-
posed upon a cleric who has committed this offence.
Pursuant to canon 1367 a delinquent who has committed the offen-
ce of profanation of consecrated species is incurred with the penalty
of excommunication, reserved to the Apostolic See. This penalty is
imposed in both cases of adisclosed and undisclosed offence. It is the
frequent or even always the case of an undisclosed offence. It remains
such even if more than one person has participated in profanation. The
pronouncement of penalty will be necessary if a censure is to be laid
upon an offender on the external forum. The remission of the penalty

portant, as in the case of e.g. can. 1370 §1 – physical assault upon the Roman Pontiff.
136 O. D. BOREK [10]

of excommunication may be granted exclusively by the Apostolic Pe-

nitentiary within the internal scope and the Congregation for the Do-
ctrine of Faith within the external scope23. Additionally, it may be gran-
ted by any cleric within the internal, sacramental scope in the event the
life of an offender is in danger24, yet a delinquent is obligated to appeal
to the competent authority after his recovery or when no longer being
in a life-threatening situation25.
The particular references can be found in can. 1367 regarding cle-
rics, namely, deacons, presbyters and bishops 26. Besides the penalty of
excommunication latae sententiae, they may be punished with other
penalties, not excluding dismissal from the clerical state. The profa-
nation of consecrated species committed by a cleric is a very serious
offence
On the other hand, it is practically impossible for any cleric, a priest
in particular, to commit such a delict. A priest is a dispenser of the
Eucharist in its broadest sense: celebrates It, distributes, delivers to
the sick, stores and protects from endangerment and profanation. The-
refore, whereas in the case of a lay person, taking and reserving con-
secrated species may be presumed as made for sacrilegious purposes,
this presumption is hardly considered in the case of a cleric due to his
numerous pastoral duties and services related to the Most Holy Eucha-
rist. Finally, it should be emphasized that all additional penalties to be
incurred upon clerics are optional, depending on a considerate decision
of a an ordinary or judge27.
1.3. Indications regarding the remission of penalty
The request to the Apostolic See, as regards the delict of profana-
tion of consecrated species, should include the following data: age (at
least approximate) of a penitent and his mental health report; date of
23
Joannes Paulus II, Constitutio Apostolica de Romana Curia..., art. 52, 117, 118.
24
CIC/1983, can. 976.
25
CIC/1983, can. 1357 §3.
26
Cf. CIC/1983, cann. 1009, 266 §1.
27
See: Z. Suchecki, Le sanzioni nella Chiesa. Parte I. I delitti e le sanzioni penali
in genere (cann. 1311-1363), Città del Vaticano 1999, 139-140.
[11] THE CANONICAL DELICTS 137

committing an offence; number of offences (how frequent?); manner of

committing an offence (in what way?); motifs which made a penitent
commit the offence of profanation of consecrated species (e.g. hatred
or revenge towards God; material benefits); was the offence committed
by a penitent alone or did he assist other persons in it (were persons
implicated clerics or monastics); did a penitent commit an offence in-
spired or encouraged by a sect and has he broken off any contact with
them (would he be ready, while still belonging to the sect, to inform
a diocesan bishop of the committed profanations. It is necessary for
securing common good and can only be made with penitent’s consent,
with respect for his confidentiality right and through the intermediary
of a confessor); does a penitent show indispensable signs of conversion
and remorse for the committed sin; can a penitent be trusted and is in
good mental health28.
The questions of crucial importance in dealing with a request are:
why, how and how often. Thus it is essential to establish whether a de-
lict has been committed out of antagonism towards God, or out of other
reasons, such as, money or encouragement by other members of a sect.
Was an offence committed in secret or in front of other persons, were
there any clerics or monastics present)29.

2. Physical assault upon the Roman Pontiff

The second delict reserved by the Code of Canon Law of 1983 to
the Apostolic See is the offence stipulated under can. 1370 §1: “Who
uses physical force against the Roman Pontiff incurs a latae senten-
tiae excommunication reserved to the Apostolic See; if he is a cleric,
another penalty, not excluding dismissal from the clerical state, can be
added according to the gravity of the delict”30. The quoted prescription
pertains to the offence of physical assault upon the Pope which is clas-
28
C.E. Commentz, Quando e come ricorrere alla Penitenzieria Apostolica, Città del
Vaticano 2011, 20-21.
29
Paenitentiaria Apostolica, Lettera pro memoria, 24.10.1983, in: Canon Law Di-
gest, vol. 11, 49-52; see also: W.H. Woestmen, Ecclesiastical sanctions and the Penal
Process. A Commentary on the Code of Canon Law, Ottawa 2000, 261.
30
CIC/1983, can. 1370 §1.
138 O. D. BOREK [12]

sified among the delicts committed against the Church authorities with
a view to protecting the office and authority of the Supreme Pontiff of
the Church.
2.1. Essential features of the delict
Using physical force against the Pope is a particularly serious of-
fence. The Roman Pontiff holds the most supreme, complete, imme-
diate, and universal power in the Church, which he is, always and eve-
rywhere, able to exercise without restraint (can. 331). The Pope is the
head of the highest authority and at the same time the fundament of
unity of the entire Church community. The physical assault upon His
Holiness is tantamount to the assault upon the ultimate authority of the
Representative of Christ on earth. This delict usually causes common
depravation, especially when committed by a cleric.
Applying physical force against the Pope can be regarded as the de-
lict of can. 1370 §1 if it is: 1 – external; 2 – violent; 3 – directed against
a person; 4 – unjustified. Firstly, the prohibited actions must be of an
external nature, which means that they must be physical, not verbal.
Secondly, they must be violent, that is, against a victim’s will or else
the rule of volenti non sit iniuria might be applied. Thirdly, the prohibi-
ted actions must be directed against a person: either against his bodily
integrity or his civil liberty, or his dignity. Bodily integrity is violated
by: physical injury, murder, battery, knock-out, stone-throwing, etc.
Civil liberty in infringed by detention, confinement, banishment or
kidnapping. The Pope’s dignity is infringed by expectoration, shoves,
muck or paint throwing, pushing into water or tearing garments. All
the above cases of delicts against the Pope consist in actions against
the integrity of a physical person and not against his good name or
material possessions. Lastly, the fourth feature of the physical assault
upon the Roman Pontiff is lack of its justification. Therefore there is no
punishable offence in the event the physical force has been applied as
vim vi repellere licet, that is, in self defence.
[13] THE CANONICAL DELICTS 139

2.2. Penal sanctions

The delict scrutinized above is punished with latae sententiae
excommunication reserved to the Apostolic See for the reserved penal-
ty must be strictly interpreted (can. 1354 §3). If the offence has been
committed by a cleric (deacon, presbyter, bishop), the judge may, be-
sides excommunication, impose another penalty (facultative right) not
excluding dismissal from the clerical state.
A monastic who has committed the delict of assault upon the Pope
is also to be dismissed from his institute (cann. 695, 1397).
2.3. Indication regarding request for remission of penalty
Due to the fact that in order to commit the above delict all elements
must be included, both subjective and objective, it seems practically
improbable that such an offence might be pronounced31.
Nonetheless, if such an offence occurs, a request for exemption ad-
dressed to the Apostolic See must include the following data: age (at
least approximate) of a penitent and his mental health report; date of
committing an offence; number of offences (how frequent?); manner
of committing an offence (in what way?); motifs which made a peni-
tent commit the offence of physical assault upon the Roman Pontiff;
was the offence committed by a penitent alone or did he assist other
persons in it; did a penitent commit an offence inspired or encouraged
by a sect and has he broken up any contact with them.

3. Absolution of an accomplice in a sin against the sixth

commandment of the Decalogue
The third delict reserved by the Code of Canon Law of 1983 to the
Apostolic See is the offence stipulated under can. 1378 §1, pursuant
to which: “A priest who acts against the prescript of can. 977 incurs
a latae sententiae excommunication reserved to the Apostolic See”32
whereas according to can. 977: “The absolution of an accomplice in a

31
Cf. C.E. Commentz, Quando e come ricorrere…, 13.
32
CIC/1983, can. 1378 §1.
140 O. D. BOREK [14]

sin against the sixth commandment of the Decalogue is invalid except

in danger of death”.33 The delict reserved thus pertains to one offence
related to the Sacrament of Penance, namely, absolution of an accom-
plice in a sin against the sixth commandment of the Decalogue.
The above kind of absolution belongs also to the category of the
offences, the examination of which, pronouncement or imposition of
penalty, are reserved to the Congregation for the Doctrine of Faith both
by Norms De gravioribus delictis from 200134 and De delictis reserva-
tis from 201035.
3.1. Essential features of a delict
So as to pronounce the delict of absolution of an accomplice in a
sin against the sixth commandment of the Decalogue three elements
are required: firstly – mortal sin against the sixth commandment of the
Decalogue; secondly – relation based on cooperation in a sin between a
priest-confessor and a priest-absolver; thirdly – actual absolution of the
above sin, that is, recitation of the absolution formula by a confessor.
Canon 977 forbids the absolution of an accomplice, under pain of
nullity, only in the case of a mortal sin against the sixth commandment
of the Decalogue. Therefore, other sins, even the most severe ones but
not related to the sixth commandment of the Decalogue are not consi-
dered here. It should be emphasized that it is not any sin of the sixth
commandment but only the mortal one. Thus all the cases in which at
least one party, out of various reasons, such as, mental condition, has
not committed a mortal sin, should be excluded36. Pursuant to can. 1321
§1 of CIC/1983 no one is to punished unless the external violation of
a law or precept has been committed. Consequently, in the discussed
case of a mortal sin against the sixth commandment of the Decalogue

33
CIC/1983, can. 977.
34
Congregatio pro Doctrina Fidei, Epistula..., 785-788.
35
Congregatio pro Doctrina Fidei, Normae de delictis…, 419-434.
36
Cf. G.P. Montini, La tutela del sacramento della penitenza. I delitti nella cel-
ebrazione del sacramento (cann. 1378; 1387; 1388), in: Le sanzioni nella Chiesa, red.
Gruppo Italiano Docenti di Diritto Canonico, Milano 1997, 219.
[15] THE CANONICAL DELICTS 141

there may occur both kinds of violation, external and internal taking
different forms37. The Catechism of the Catholic Church teaches that
the tradition of the Church has understood the sixth commandment as
encompassing the entire human sexuality38.
Complicity denotes that there are at least two persons, although the-
re may be more, who consciously and voluntarily participate in the
same sin. An accomplice is any person who agrees to commit a sin
together. Without his consent there is no complicity39. Therefore the
mortal sin against the sixth commandment of the Decalogue must be
committed by all persons involved, not only by a confessor. An accom-
plice may be a person who was able to commit a mortal sin or who
has actually committed such a sin with a confessor40.The time, that is,
the moment of committing a sin is not relevant here. Thus it is unim-
portant whether at the moment of committing a mortal sin against the
sixth commandment a priest was ordained or whether he assisted in the
offence long before taking holy orders41.
However, the delict is deemed as committed only at the moment
of reciting by a confessor the formula of absolution with intention of
granting it42. It should be noticed that according to 1378 §1, the delict
itself consists in invalidly given absolution. It is important due to the
fact that there may be situations when a confessor grants absolution
of a sin against the sixth commandment committed by an accomplice
most validly, such as in the danger of death. In this situation a confes-
sor retains his authority to absolve. Furthermore, the interdiction of ca.
977 pertains only to the sins which have not been absolved yet, so there
is not offence if an accomplice has already been absolved of the sin43. It

37
Cf. A. Calabrese, Diritto penale…, 299.
38
Cf. CCC, n. 2336.
39
If there is no such a consent, other offences might be considered, according to
can. 1395, cf. P. Barbero, Tutela della comunione ecclesiale e sanzioni canoniche,
Lugano 2011, 207.
40
Cf. J. Syryjczyk, Kanoniczne prawo karne…, 97-98.
41
Cf. G.P. Montini, La tutela del sacramento della penitenza…, 218-219.
42
Cf. J. Syryjczyk, Kanoniczne prawo karne…, 98.
43
Cf. Communicationes 15(1983), 210.
142 O. D. BOREK [16]

should also be observed that, according to can. 1321 §2 CIC/1983, so

as to pronounce a delict a confessor must act deliberately, violating the
interdiction of cann. 1378 §1 and 977, for a person who has infringed
the law due to priestly negligence does not icur a penalty. Accordingly,
a confessor must realize that he attempts to absolve his accomplice in
a sin against the sixth commandment of the Decalogue and that such
absolution is forbidden, and that he grants absolution unlawfully44.
3.2. Penal sanctions
Prescripts 977 and 1378 §1 of the Canon law have been drawn in
order to protect the Sacrament of Penance. Giving absolution to an
accomplice of a sin against the sixth commandment of the Decalogue
is an abuse of absolutory power. In the natural law a crime associate
should not judge and resolve an accomplice of a mutually committed
offence. Such a situation produces, as well, a moral dilemma for an of-
fender concerning his spiritual conversion, which in effect discourages
him from abandoning a sin. There is also the question of depravation of
the congregation leading to disregard of Christian morality, the abuse
of the sanctity of the Sacrament of Penance and insult to the Church.
Finally, an argument for the punishability of this delict is general pre-
vention, that is, an educational role of a penal sanction.
A confessor who absolves his accomplice of a sin against the sixth
commandment of the Decalogue incurs a latae sententiae excommuni-
cation reserved to the Apostolic See. And it should be noticed as well
that, according to can. 977, absolution granted to an accomplice of a
sin against the sixth commandment of the Decalogue is invalid except
in danger of death.
3.3. Indications regarding request for remission of penalty
Due to the confidential nature of this delict, it is rather the Congre-
gation for the Doctrine of Faith which examines the case. A request for

44
Cf. G.P. Montini, La tutela del sacramento della penitenza…, 220.
[17] THE CANONICAL DELICTS 143

remission of penalty of latae sententiae excommunication should be

addressed to the Apostolic Penitentiary45.
The request for exemption from the penalty with regard to the delict
of absolution of an accomplice in a sin against the sixth command-
ment of the Decalogue, addressed to the Apostolic See, should include
the following data: age (at least approximate) of a penitent, namely, a
priest who has given absolution to his accomplice in a sin against the
sixth commandment of the Decalogue; age (at least approximate) of
an accomplice in a sin against the sixth commandment of the Decalo-
gue who was granted the absolution by a priest-accomplice; sex of an
accomplice; canonical status of an accomplice (not married, married,
monastic, cleric); has it been the first of such absolutions; how many
times such an invalid absolution has been granted; when was the last
such an absolution was granted; has an offender broke off his sinful
relations with an accomplice; has he changed his residential address or
does he still live in the same place (vital due to the risk of re-commit-
ting a sin and an offence); does a penitent still hold the priesthood or
not, is he a diocesan priest or a monastic, what positions does he hold,
etc.; does a penitent live a life proper for the priestly state – does he
perform daily Eucharist, does he pray the Liturgy of the Hours, etc.46.
An essential piece of information is the one whether an offence
was a singularly, random event which took place during the time of
some intense crisis, temptation or circumstance, in which a priest fo-
und himself. Or else there were more cases of granting absolution to an
accomplice in a sin against the sixth commandment of the Decalogue,
which might indicate specially mean and dogged persistence in con-
tinuing this sin. In such a case it is advisory to determine how often
absolution was granted, how many accomplices were involved, if they
were persons of male or female sex or both. Furthermore, with respect
to severity of a delict, it is crucially important to establish the status of
accomplices, whether they were monastics, married women or semina-

45
Cf. D. Cito, Delicta graviora…, 44. See: P. Barbero, Tutela della comunione…,
207-208.
46
C.E. Commentz, Quando e come ricorrere…, 21-22.
144 O. D. BOREK [18]

rians. All of this information may serve as incriminating circumstances

if related to fornication, sacrilege and due to their tremendous spiritual
harmfulness. It is also important to learn if a cleric has relinquished
his sinful conduct and leads his life in accordance with his state. Mo-
reover, whether he still holds priesthood, either as a diocesan priest or
a monastic47.
Only when learning the answers to the above questions will the
Penitentiary be able to resolve the matter properly and give a penitent
necessary support to persevere in reformation and spiritual revival, and
to undertake internal measures with a view to securing the sanctity of
the Sacrament of Reconciliation and common good by protecting the
faithful from depravation48.

4. Consecration of a bishop without a pontifical mandate

The fourth delict prescribed by the Code of Canon Law of 1983 as
reserved to the Apostolic See is the offence specified in can. 1382, pur-
suant to which: “A bishop who consecrates someone a bishop without a
pontifical mandate and the person who receives the consecration from
him incur a latae sententiae excommunication reserved to the Aposto-
lic See”49. Thus the prescript forbids ordination of a bishop if the con-
secration is to be made without a pontifical authorization.
4.1. Essential features of a delict
The essential features of the delict in question comprise: firstly –
lack of pontifical mandate; secondly – intentional guilt; thirdly – mutu-
al participation in accomplishing an offence.
According to can. 1013 no bishop is allowed to consecrate anyone a
bishop unless he is first assured that there is a pontifical directive. Whe-

47
Paenitentiaria Apostolica, Lettera pro memoria, 24.10.1983, Canon Law Di-
gest, vol. 11, 49-52; see also: W.H. Woestmen, Ecclesiastical sanctions…, 261-262.
48
D. Kos, Modo di fare i ricorsi e di accordarsi con il penitente, in: Tribunale della
Penitenzieria Apostolica, Corso sul Foro Interno, 3-8 marzo 2008, Palazzo della Cal-
celleria, Roma.
49
CIC/1983, can. 1382.
[19] THE CANONICAL DELICTS 145

refore, it is not permitted to consecrate a bishop without prior ordinan-

ce or authorization from the Pope. The ordination conducted without a
pontifical mandate is valid but despicable. This is important since can.
1013 regulation does not contain a nullifying clause, and pursuant to
can. 10 the only nullifying precepts are those which expressly state that
an act is invalid. Consecration of a bishop without a pontifical manda-
te is despicable for, according to the Divine Law, every bishop is to
remain in the communion with the Pope and the College of Bishops.
The pontifical mandate is thus a sign of staying in this hierarchical
connection. Ordination of a bishop without the pontifical directive is
an offence which in itself is an act of contumacy against the Bishop
of Rome in the matter of highest priority; it is insubordination which,
involving actual denial of the Roman primacy, is an act of schism50.
The very nature of the delict of can. 1382 requires that offenders
have mutually agreed unlawful intent and participated together in ac-
complishing the act. Therefore, there must be dolus, that is, intentional
guilt of both parties, a consecrator and the consecrated. Pursuant to
can. 1382 the delict is thus committed by both, a bishop who illicitly
ordains and a priest who gets ordained for both of them participate
in the same offence despite their different roles. The legislative act
of 1983 thus definitely prescribes the penal liability of both, a bishop
ordaining without a pontifical mandate and of a priest receiving ordina-
tion. The legal problem arises when the consecration is conducted with
participation of other bishops who are co-consecrators.
Pursuant to can. 1014, if the Apostolic See has not granted a di-
spensation, a bishop who is a principal consecrator, must take at least
two other consecrating bishops to carry out ordination and it is highly
appropriate that all the present bishops consecrate the elect together.
The principal bishop, along with the other consecrating bishops car-
ry out the act of consecration by laying their hands on the ordinand
(the matter) and reciting the words of the consecration rite (the form).
Hence the question arises: is a delict committed solely by the princi-

50
John Paul II, Motu proprio Ecclesia Dei (02.07.1988), AAS 82(1988), 1495-
1498.
146 O. D. BOREK [20]

pal consecrator or are all co-consecrating bishops implicated in this

offence? (cf. can. 1329 §2). In some fragment of the doctrine we find
that the co-consecrating bishops are not indispensable participants of
the delict as it may be accomplished without their involvement. Their
presence is required rather for the sake of propriety, not validity. Thus,
as the participants they do not have to be liable to latae sententiae
excommunication. By this interpretation, all co-consecrating bishops
might be punishable for involvement in an offence, but necessarily as
accomplices. Wherefore, they may not be subject to latae sententiae
excommunication imposed for illicit consecration of a bishop51, but
such penalty might be incurred upon them optionally, depending on
a considerate decision of a an ordinary or judge52. As rightly observed
by V. De Paolis, although all co-consecrating bishops may be regar-
ded as actual consecrators and thus classified as accomplices to incur
the same penalty as the main perpetrator, can. 1382 specifies about “A
bishop, who…”, so a singular grammar form is used. Accordingly, all
possible co-consecrating bishops are not indispensable to commit an
offence. Considering the rule of the closest interpretation of the penal
prescripts, it should be concluded that can. 1382 does not scrutinize
the case co-consecrating bishops as participants necessary to commit
a delict53. The above interpretation is justifiable also in view of the

51
Cf. A. Calabrese, Diritto penale…, 310-311; J. Syryjczyk, Kanoniczne prawo
karne…, 113-114; A.G. Urru, Punire per salvare…, 230; R. Botta, La norma pena-
le…, 210;
52
Cf. J. Syryjczyk, Kanoniczne prawo karne…, 113-114.
53
V. De Paolis, De Sanctionibus in Ecclesia. Adnotationes in Codicem: Liber VI,
Romae 1986, 117. Calabrese, however, observes that co-consecrating bishops are not
liable to ferendae sententiae penalties as pursuant to can. 1329 §1 if a principal of-
fender is sentenced to penalty, those who, upon common premeditated intent, partici-
pate in a delict (ferendae sententiae), and who are not expressly specified in a prescript
or order, are liable to the same penalties or to other penalties of the same severity. It
should be noticed that the scrutinized can. 1382 does not specify any ferendae senten-
tiae penalties to be imposed on the principal offender, that is, in the said case on the
principal consecrator. Accordingly, co-consecraters as well cannot incur ferendae sen-
tentiae penalties, A. Calabrese, Diritto penale…, 311. Similarly, R. Botta, La norma
penale…, 210, footnote n. 248.
[21] THE CANONICAL DELICTS 147

fact that the Congregation of Bishops, when declaring the penalties for
illicit consecration of bishops by Archbishop Lefebvre, state that the
Archbishop has incurred the penalty of excommunication of both, can.
1364 and 1382 for, respectively, the schism and for consecration of a
bishop without pontifical mandate, whereas the co-consecrating bishop
A. de Castro Mayer has been imposed with excommunication only for
the delict of schism of can. 136454.
Despite the above, the opinion derived from part of the doctrine, ac-
cording to which co-consecrating bishops do not incur latae sententiae
excommunication of can. 1382 as not being indispensable participants,
is not fully acceptable. B.F. Pighin suggests a legal singularity of the
case of co-consecrating bishops and that the perspective of indispen-
sable participants is not adequate as in reality each of the co-consecra-
ting bishops is de facto an actual dispenser of consecration with all its
effects. The case is similar to the situation when several priests co-ce-
lebrate the Holy Mass, and as co-celebrants they all perform priestly
service even if only one of the is the principal celebrant. Wherefore,
according to B.F. Pighin, bishops who participate in illicit consecration
of a bishop, as co-consecrators – are accomplices55.
Complicity, that is complete assistance or physical participation in
an offence, is physical cooperation of several persons in accomplishing
the same offence, with mutual intent of violating the law (delicti co-
-auctores). So as to pronounce complicity in an offence a few key con-
ditions must be fulfilled. Firstly, mutual consent (communi consilio) of
all co-offenders concerning the intent to commit an offence. Secondly,
conscious physical cooperation in an illegal act56. Therefore, if on the
part of the bishops, participating as co-consecrators in illicit ordination
of a bishop, all the above mentioned conditions have been fulfilled, it
may be assumed that they are liable to incur latae sententiae excom-

54
Congregation of Bishops, Decree of 1 July 1988, (L’Osservatore Romano
03.07.1988), 1. 1. Also the decree of the Holy Office of 1951 did not incur excommu-
nication, reserved specialissimo modo to the Apostolic See, upon co-consecrating bish-
ops, see: S. Officio, Decreto Suprema Sacra, 9 aprile 1951, AAS 43(1951), 217-218.
55
B.F. Pighin, Diritto penale canonico, Venezia 2008, 407.
56
J. Syryjczyk, Sankcje w Kościele…, 195.
148 O. D. BOREK [22]

munication as being accomplices. Such a conclusion is justified by the

declaration of 16 June 2011 issued by the Pontifical Council for the
Interpretation of Legislative Texts, pertaining to a correct application
of can. 1382 of the Code of Canon Law. It clearly specifies that all par-
ticipants of ordination who serve as co-consecrators, that is, lay their
hands and recite the words of the consecration prayer (cf. Caeremonia-
le Episcoporum nn. 582 and 584) are accomplices in a delict, thus equ-
ally liable to penalty57. According to the above declaration it is unqu-
estionable that the delict prescribed in can. 1382 should be pronounced
as such when committed by both, a bishop who unlawfully consecrates
and by an ordinand bishop who is consecrated. Furthermore, the dec-
laration of the Commission implies that also those who co-consecrate
by laying their hands and reciting the consecration prayer should be
regarded as accomplices in an offence and thus incur penalty.
4.2. Penal sanctions
Consecration of a bishop without a pontifical mandate and rece-
iving holy orders to episcopacy without this mandate are subject to a
penal sanction of can. 1382 in the form of latae sententiae excommuni-
cation, reserved to the Apostolic See. This penalty pertains to, first and
foremost, a bishop ordaining to episcopacy and to an ordinand, that is,
a consecrator and the consecrated58. As regards possible co-consecra-
ting bishops it should be observed that all co-consecrating bishops as
accomplices are liable to penalty of latae sententiae excommunication
under can. 1382, unless any of them encounter personal circumstances
which cause lack of sanity or which impede liability to latae sententiae
penalties59.

57
Pontificio Consiglio per i Testi Legislatvi, Dichiarazione sulla retta applicazi-
one del canone 1382 del Codice di Diritto Canonico, 6 giugno 2011, (on the Vatican
website).
58
The examples of declarations see: S. Officio, Decreto Suprema Sacra, 9 aprile
1951, AAS 43(1951), 217-218; S.C. per la Dottrina della Fede, Decreto Episcopi
qui alios, 17 settembre 1976, AAS 68(1976), 623; S.C. per la Dottrina della Fede,
Notificazione 12 marzo 1983, AAS 75(1983), 392-393.
59
See: CIC/1983, cann. 1322; 1324.
[23] THE CANONICAL DELICTS 149

With respect to possible participants of illicit consecration of a bi-

shop, the prescript of can. 1329 should apply, according to which they
are liable to penalty depending whether they can be classified as princi-
pal offenders or as others, indispensable or not, participants of a delict.
4.3. Indications regarding request for remission of penalty
Due to the fact that in order to commit the above delict all condi-
tions must be fulfilled, both subjective and objective, it seems practi-
cally improbable that such an offence might be pronounced. It is an
offence which is of rather rare occurrence60.

5. Direct violation of sacramental seal

The fifth delict, reserved by virtue of the Code of Cano Law of 1983
to the Apostolic See is the offence of can. 1388 §1, pursuant to which:
“A confessor who directly violates the sacramental seal incurs a latae
sententiae excommunication reserved to the Apostolic See; one who
does so only indirectly is to be punished according to the gravity of
the delict”61. This prescript implies one offence pertaining to the Sa-
crament of Penance, namely, direct infringement of confessional seal.
Direct violation of sacramental seal is also classified as the offen-
ces the examination of which, with pronouncement or imposition of
penalty, is reserved to the Congregation for the Doctrine of Faith both
by Norms De gravioribus delictis from 200162, and De delictis rese-
rvatis from 201063. However, it should be notified that according to
the Norms of 2001 it is only direct violation of sacramental seal which
is reserved to the above Congregation whereas the Norms of 2010 re-
serve both, direct and indirect violation of the sacramental seal to the
Congregation.

60
Cf. C.E. Commentz, Quando e come ricorrere…, 13.
61
CIC/1983, can. 1388 §1.
62
Congregatio pro Doctrina Fidei, Epistula..., 785-788.
63
Congregatio pro Doctrina Fidei, Normae de delictis…, 419-434.
150 O. D. BOREK [24]

5.1. Essential features of a delict

Canon 1388 consists of two paragraphs which specify two separate
offences. Acordingly, the first paragraph, i.e. can. 1388 §1 pertains to
the delict against sacramental seal: confessarius qui sacramentale si-
gillum (...) violat. It refers to the duty of sigillum sacramentale which
applies only to a confessor and a subject of confession (cf. can. 983). It
is an absolute duty for it concerns the knowledge of the matters which
a priest has learnt as a confessor, that is, in so called foro Dei. The
second case, prescribed in can. 1388 §2, specifies the offence against
the secrecy of the subject of confession: interpretes aliiqui (...) qui
secretum violat. A secret in question (secretum) referes to interpreters
and all those who in certain ways have acquired information of the
subject of confession. The quoted reservation of the Apostolic See, as
regards exemption from penalty, pertains solely and exclusively to the
violation of sigillum sacramentale of can. 1388 §2.
Pursuant to the prescript of can. 983, a confessor is obligated to
fulfill the two following duties. Firstly, to preserve in secrecy the sins
about which he has learnt during confession. Secondly, not to use the
knowledge acquired during confession even if there is no danger of
spreading it. The above duties never allow exceptions, even due to the
most serious reasons, thus no justifiable cause, such as necessity or
grave inconvenience, can be approved64. Intelligibly, this legislative act
has been drawn with a view to protecting one of the most sacred and
intimate moments of Christian life when the faithful, inspired by holy
grace, open their hearts during confession so as to reconcile with God
and the Church. Yet even if a penitent made confession inappropriate
or sacrilegious, for example, abandoning all remorse or not obtaining
absolution, a confessor is still obliged to keep in secret everything what
he heard during confession. Sigillum is to safeguard not only a penitent
but the Sacrament of Penance itself for a repentant cannot discharge a
confessor of the duty of preserving secrecy.

64
Cf. CIC/1983, can. 1323, n. 4; 1324 §l, n. 5.
[25] THE CANONICAL DELICTS 151

According to the doctrine, there is a distinction between primary

and ancillary subjects of sigillum. The primary subject of sigillum sa-
cramentale is constituted of all sins, of a penitent himself and others
which have been learnt about from the same confession, both mortal
and lesser (venial), both secret and public since they have been disc-
losed in order to obtain absolution, which, by the sacramental power,
have become known to a confessor. The ancillary subject comprises
circumstances which accompany a sin, names and sins of probable ac-
complices.
A direct betrayal of sigiullum sacramentale occurs when a confes-
sor reveals the content, that is, the subject of confession (sigillum sa-
cramentale) and when he indicates a penitent. It is not necessary that
a penitent knows a person or persons to whom sigillum has been disc-
losed, but it suffices when a person who has confessed sins is clearly
designated: for example, a mayor of a specific city has committed such
and such a sin. Sigillum is betrayed also in the event when a person to
whom a confessor discloses it is not aware of the fact that it was the
subject of confession.
An indirect betrayal of sigillum occurs when, besides the subject,
a confessor discloses particular circumstances which have been learnt
during confession, thanks to which it is possible to trace or suspect a
penitent. This kind of violating sigillum is usually the effect of careles-
sness of a confessor, mostly unintentional, or it occurs when a confes-
sor is questioned by others who have bad intentions.
A guilty party of a delict is a confessor, that is, a priest or a bishop,
who heard confession. If the above mentioned confessors heard con-
fessions invalidly, as unauthorized to do it, they are still obligated to
observe secrecy of sacramental confession. If such be the case their
actions are regarded as offences of the two categories: delict of can.
1378 §2, n. 2 and violation of sigillum. If a confessor is not a priest, a
sigillum, in its strict sense is not betrayed, however, secrecy is violated,
as specified in can. 1388 and the offence of 1378 §2, n. 2 occurs.
It should also be emphasized that an offence to be committed re-
quires an intentional guilt on the part of a confessor. And if the delict
has been committed intentionally, violation of sigillum, both direct and
152 O. D. BOREK [26]

indirect, consists in a definite intention of a priest to break the law;

wherefore no offence occurs if disclosure of confession is the result of
carelessness or negligence as there is lack of clear intention of breaking
the law. Such being the case, a delict in effect of an unintentional guilt
may be pronounced, as prescribed in can. 1389 §2. In view of the abo-
ve, it is always advisory to remind priests of keeping any information
heard during confession, however harmless it may seem, in secret.
5.2. Penal sanctions
Canon 1388 §l prescribes various penalties for violation of sacra-
mental seal, whether direct or indirect. Direct betrayal is punishable
with latae sententiae excommunication reserved to the Apostolic See,
namely, the Apostolic Penitentiary for internal scope of affairs (cf. Pa-
stor Bonus, articles 117 and 118) and the Congregation for the Doctri-
ne of Faith dealing with the external scope (cf. Pastor Bonus, art. 52).
In the case of indirect violation of sacramental seal an offender is by no
means able to justify his actions (cf. can. 1324 §l, n. 5), thus he incurs
the penalty of excommunication. It is so because indirect violation of
sacramental seal is inexcusable, whether with violence, death threats
or saving the nation since, as explicitly prescribed by can. 983, sacra-
mental seal is inviolable.
For indirect violating the confessional seal an offender may incur
the penalty of ferendae sententiae which is indefinite but compulsory.
5.3. Indications regarding the remission of penalty
A request for exemption from the penalty of excommunication
regarding the indirect violation of sacramental seal, addressed to the
Apostolic See, must include the following data: age (at least appro-
ximate) of a penitent; date of committing an offence; number of ti-
mes a delict has been committed; the circumstances of the delict; has
the offence been committed voluntarily (in effect of intentional guilt
– dolus) or in consequence of carelessness and negligence (in effect
of unintentional guilt – culpa); has the penitent as the object of betray-
al incurred any damages; were there witnesses of a betrayal and did
[27] THE CANONICAL DELICTS 153

they know that violation of sigillum sacramentale had been done, and
was this the cause of depravation; is the offender a confessor who has
normally observed sigillum sacramentale; is the offender rational or
over-rigorous65.
It is crucially important in the case of violating sigillum sacramen-
tale whether it has been committed consciously and voluntarily, that is,
as an intentional guilt or in effect of culpable negligence, that is, unin-
tentional guilt. And it is the first offence which is reserved to the Apo-
stolic See. When prosecuting the case it is essential to assess whether a
confessor has remorse or not; does anyone else know about violation of
sacramental seal (clerics, seculars, trustworthy persons, has it been di-
scussed); hat the penitent whom the betrayal concern incurred any kind
of damage, moral, spiritual or material. Finally, the information which
might be helpful is the one concerning the confessor himself: how has
he usually behaved on the matter of the Sacrament of Penance and the
sacramental seal – has he acted with required discretion or not66.

6. An attempt to ordain a woman to the priesthood

6.1. Essential features of a delict
The Norms De delictis reservatis of 2010 reserve to the Congre-
gation for the Doctrine of Faith, among other things, delictum gravius
attentatae sacrae ordinationis mulieris, that is, a delict of attempted
priestly ordination of women67. There is no corresponding prescript,
either in the Code of Canon Law of 1983 or The Code of Canons of the
Eastern Churches of 1990, nor in the Norms of De gravioribus delictis
of 2001. The delict in question was defined by the Congregation for the
Doctrine of Faith only in 200768.
The offence in question is closely associated with Morulo Anto-
nio Braschi, founder of a schismatic community, who had made an

65
C.E. Commentz, Quando e come…, 21.
66
Cf. W.H. Woestmen, Ecclesiastical sanctions…, 262.
67
Congregatio pro Doctrina Fidei, Normae de delictis..., 423-424.
68
Cf. Congregatio pro Doctrina Fidei, Decretum generale de delicto attentatae
sacrae ordinationis mulieris, AAS 100(2008), 403.
154 O. D. BOREK [28]

attempt of ordaining women. The Congregation for the Doctrine of

Faith, which intervened in that case, issued the Declaration Monitum
on 29 June 200269, to be followed by the Decree of excommunication
of 5 August 2002 70 and the Decree of 21 December 200271.
With a view to protecting the nature and validity of the Sacrament
of Holy Orders, the Congregation for the Doctrine of Faith, empowe-
red by the highest Church authority (cf. can. 30 of CIC/1983), during
the Ordinary Session of 19 December 2007, decided that, pursuant to
the prescript of can. 1378 of the Code of Canon Law, both a delinquent
who had attempted to confer upon a woman sacred ordination and a
woman who had attempted to receive sacred ordination, incurred the
penalty of latae sententiae excommunication, reserved to the Aposto-
lic See. In the event that a person who attempted to ordain a woman
or a woman who attempted to receive ordination, are the followers of
an Eastern Church and subjects to the Code of Canons of the Eastern

69
According to the Declaration, the priestly ordination in question was a simulation
of the Sacrament and therefore was null and invalid as well as constituting a serious
offense to the divine constitution of the Church. It is also the serious offence against
the unity of the Church as a consecrating bishop belongs to a schismatic community.
Moreover, pursuant to can. 1347 § 1 of CIC/1983, the Congregation admonished the
women who had received the holy orders and appealed to them to nullify the ordina-
tion. Not complying to the order of nullity of simulated priestly ordination within the
time limit of 22 July 2002 was to result in imposition of excommunication (ferendae
sententiae) reserved to the Apostolic See, Congregazione per la Dottrina della Fede,
Dichiarazione (Monitum), (L’Osservatore Romano, 11 luglio 2002), 6.
70
By virtue of her Decree of 5 August 2002, the Congregation for the Doctrine of
Faith, incurred upon the women who had attempted to receive the holy orders and de-
spite admonition had not nullified the ordination, nor asked for forgiveness for caused
depravation, the penalty of excommunication (ferendae sententiae) reserved to the Ap-
ostolic See, cf. Z. Suchecki, Le privazioni e le proibizioni..., 74.
71
The Congregation for the Doctrine of Faith, by virtue of the Decree of 21 Decem-
ber 2002, rejected, both a request for revocation of the excommunication decree of
14 August 2002 and the recourse of 27 September 2002. In the said case the recourse
was not possible as it concerned a decree of excommunication issued by a Dicastery of
the Holy See acting in the name of the Supreme Pontiff (cf. canon 360 of CIC/1983).
Accordingly, the Congregation upheld the decree of excommunication of 5 August
2002, cf. Congregazione per la Dottrina della Fede, Decreto (L’Osservatore Romano,
27-28 gennaio 2003), 8.
[29] THE CANONICAL DELICTS 155

Churches, pursuant to the prescript of can. 1443 of this Code, are lia-
ble to major excommunication, the remission of which is reserved to
the Apostolic See (cf. can. 1423 CCEO/1990). The above regulations
came into force with the date of publication in the L’Osservatore Ro-
mano daily newspaper72. The prescriptions of the quoted decree were
included in the Norms of 2010 issued with an appendix on the penalty
of dismissal or deposition of a cleric.
A delict of attempting to incur sacred ordination on a woman is
first of all violation of a doctrinal character. Such an act becomes a
formal and an outright repudiation of the doctrine which the Church
has always taught and which was explicitly stated by John Paul II in
his Apostolic Letter Ordinatio Sacerdotalis in 1994: “The Church does
not consider herself authorized to admit women to priestly ordinatio-
n”73. According to the above decree this statement should be conside-
red final and binding by all the followers of the Church. Denying this
doctrine should be regarded as repudiation of the truth of the Catholic
faith, implicating the necessity of imposing a suitable penalty, accor-
ding to cann. 750 §2 and 1371, n. 1of CIC/ 198374. Furthermore, as
specified by the Congregation for the Doctrine of Faith in her Decree
of 21 December 2002, the persons who reject the above doctrine claim
that the Pontifical Magisterium might be binding only when based on
a decision of the College of Bishops, supported by the sensus fidelium
and approved by the major theologians. Such an interpretation stands
in opposition to the dogma of the Pontifical Magisterium, affirmed by
the Vatican Councils I and II, and implies the rejection of irreformabi-
lity of the Pontifical teaching of the doctrine, the latter of which should
be definitely followed by the faithful75.

72
Congregatio pro Doctrina Fidei, Decretum generale de delicto attentatae sacrae
ordinationis mulieris, (19 dicembris 2007), AAS 100(2008), 403.
73
John Paul II, The Apostolic Letter Ordinatio sacerdotalis, n. 4, 22 May 1994
(L’Osservatore Romano, 30-31 maj 1994), 7-9
74
Cf. John Paul II, The Apostolic Letter motu proprio Ad tuendam fidem, n. 4
(L’Osservatore Romano, 18 maj 1998), 13-15.
75
Cf. Congregazione per la Dottrina della Fede, Decreto (L’Osservatore Roma-
no, 27-28 gennaio 2003), 8; cf. D. Cito, Delicta graviora..., 51-52.
156 O. D. BOREK [30]

The offenders of the described delict are both, a person who at-
tempts to ordain a woman and a woman or women who attempt to
receive sacred ordination76. The apostates who try to confer holy orders
may be clerics, deacons, presbyters, bishops, but also seculars, men or
women. Regardless of whether the ordination has been conferred on
a woman by a validly consecrated bishop or another person, it is still
regarded as attempted. It is so because according to can. 1024 of the
Code of Canon Law of 1983 the ordination to the priesthood is valid
only if an ordinand is vir baptizatus. The penal liability is the same
for all participants of a delict, thus it is uniformly to latae sententiae
excommunication reserved to the Apostolic See in the case of the fol-
lowers of the Roman Catholic Church, and to major excommunication
for the followers of the Eastern Churches, also reserved to the Aposto-
lic Church. Moreover, if an offender is a cleric, he incurs an additio-
nal expiatory penalty of dismissal or deposition. Heavier liability of
a cleric derives from particular harmfulness of the discussed offence
committed by him77.
6.2. Penal sanction
For the delict of attempting to ordain a woman to the priesthood the
Norms of 2010 prescribe the latae sententiae excommunication rese-
rved to the Apostolic See and, as regards a cleric, a facultative penal-
ty of dismissal or deposition78. The same penalty, also reserved to the
Apostolic See, has been prescribed in the decree of the Congregation
for the Doctrine of faith in 2007.

76
Cf. D.G. Astigueta, Ultime modifiche al motu proprio..., 79.
77
D. Cito, Delicta graviora..., 51.
78
Art. 5: “n. 1 firmo praescripto can. 1378 Codicis Iuris Canonici, tum qui sacrum
ordinem conferre attentaverit tum mulier quae sacrum ordinem recipere attentaverit in
excommunicationem latae sententiae Sedi Apostolacae reservatam incurrit” (...) „3°
si vero reus sit clericus dimissione vel depositione puniri peterit”, Congregatio pro
Doctrina Fidei, Normae de delictis..., 423.
[31] THE CANONICAL DELICTS 157

6.3. Indications regarding the remission of penalty

Due to the fact that in order to commit the above delict all condi-
tions must be fulfilled, both subjective and objective, it seems practi-
cally improbable that such an offence might be pronounced. It is an
offence which is rather of rare occurrence.

Conclusion
Pursuant to the prescriptions of §3 of can. 1354, the Apostolic See
can reserve the right to remit penalties. Reservation specified in the pe-
nal law, in its general sense, denotes revoking the right to exempt from
penalties by lower superiors and granting this right exclusively to hi-
gher ones. Wherefore, the reserved penalties may be remitted solely by
the Apostolic See and the entities authorized by her. If a penalty is re-
served to the Apostolic See, in ordinary cases it is her exclusively who
is empowered to exempt from this penalty, unless the law explicitly
entitles other persons or the Apostolic See authorizes them by herself.
In accordance with the currently applicable canon law, there are
only six delicts liable to latae sententiae excommunication the remis-
sion of which is reserved to the Apostolic See. They are: profanation
of consecrated species (can. 1367); physical assault upon the Roman
Pontiff (can. 1370 §1); absolution of an accomplice in a sin against
the sixth commandment of the Decalogue (1378 §1); consecration of
a bishop without a pontifical mandate (can. 1382); direct violation of
sacramental seal (can. 1388 § 1); an attempt to ordain a woman to the
priesthood (General Decree of the Congregation for the Doctrine of
Faith of 19 Dec 2007). In the above cases any appeals should be lodged
at the proper Dicastery of the Roman Curia. It should be noticed that
each case ought to be prosecuted carefully so as to confirm whether
the penalty of excommunication, reserved to the Apostolic See, has
actually been incurred. Therefore each examination will require indi-
spensable knowledge of essential features of a delict subject to penalty,
the remission of which is reserved to the Apostolic See.
158 O. D. BOREK [32]

Summary
The article titled The Canonical Delicts Liable to Penal Sanctions Rese-
rved to the Apostolic See analyses the consecutive offences under the penalty
of latae sententiae excommunication the remission of which is reserved to the
Apostolic See. According to the currently applicable canon law, there are only
six delicts liable to latae sententiae excommunication the exemption form
which is reserved to the Apostolic See. They are: profanation of consecrated
species; physical assault upon the Roman Pontiff; absolution of an accomplice
in a sin against the sixth commandment of the Decalogue; consecration of
a bishop without a pontifical mandate; direct violation of sacramental seal;
an attempt to ordain a woman to the priesthood. The knowledge of essential
features of these offences seem particularly important in re-examining the
case and resolving whether the penalty of excommunication, reserved to the
Apostolic See, has actually been incurred.

Key words: Reservation of penalties, remissions of penalties, canonical delicts

Słowa kluczowe: zastrzeżenie kar, zwalnianie z kar, przestępstwa kanoniczne