Delicta Graviora Law and Procedure A Presentation by

Delicta Graviora Law and Procedure A Presentation by Msgr Charles J. Scicluna Promoter of Justice Congregation for the Doctrine of the Faith

A Short Commentary on the Motu Proprio Sacramentorum sanctitatis tutela (30 April 2001) and the Praxis of the Congregation for the Doctrine of the Faith

The Delictum gravius n Definition: A deviance of a grave nature against divine natural, divine positive, ecclesiastical law which offends: n n Morals The celebration of the sacraments

The Delictum gravius Characteristics n n n gravity/seriousness in the ecclesiastical context tendency to consider them similar to capital crimes hardly any statute of limitations/prescription special tribunals/procedures usually punished with the highest punishments and the traditional declaration of infamia

The Delictum gravius Reservatio to the Congregation for the Doctrine of the Faith n n n Why the CDF? (PB 52/MP SST 1 § 1 ) An exclusive competence ratione materiae What of other jurisdictions? - absolute incompetence - duty to refer to CDF

Types of Delicta graviora John Paul II, Motu Proprio, Sacramentorum sanctitatis tutela, 30 April 2001: n Delicts against the Eucharist and Penance n Sexual Abuse of minors

Delicts against the Eucharist (MP SST Art. 2):

5 Delicts against the Most Holy Sacrifice and Sacrament of the Eucharist (SST Art. 2) n n n § 1, 1° Profanation of the Eucharistic Species § 1, 2° Attempted celebration of the Eucharist § 1, 2° Simulation of the Eucharist § 1, 3° Prohibited concelebration of the Eucharist § 2 Prohibited or sacrilegious consecration of one species without the other

Delicts against the Eucharist 1. The profanation of the Sacred Species (Art. 2, n. 1°)

SST Art. 2, § 1, 1° Profantion of the Eucharistic Species the taking or retaining for a sacrilegious purpose, n or the throwing away of the consecrated species n mentioned in n – CIC, can. 1367 – CCEO, can. 1442

“abicere” Pontifical Council for the Interpretation of Legislative Texts, Responsum ad dubium, 4 June 1999, [AAS 91 (1999) 918]: D. Whether or not the word “abicere” in canons 1367 CIC and 1442 CCEO should be understood only as the act of throwing away. R. Negative and ad mentem. The “mens” is that the word “abicere” should be considered to include any voluntarily and gravely contemptuous action towards the Sacred Species.

Penalties CIC, can. 1367: * [any person] incurs a latae sententiae excommunication reserved to the Apostolic See; * moreover, a cleric can be punished with another penalty, not excluding dismissal from the clerical state. CCEO, can. 1442: * [any person] will be punished by a major excommunication; * moreover, a cleric can be punished with another penalty, not excluding deposition from the clerical state.

Delicts against the Eucharist 2. The attempted celebration of the Eucharist by a person who is not a priest (Art. 2, n. 2°) 3. The simulation of the Eucharsit (Art. 2, n. 2°)

SST Art. 2, § 1, 2° Attempted celebration of the Eucharist attempting the liturgical action of the Eucharistic Sacrifice though not promoted to the sacerdotal order Source: CIC, can. 1378, § 2, n. 1

Penalties CIC, can. 1378, § 2: * [any person] incurs a latae sententiae penalty of interdict * if a cleric, a latae sententiae penalty of suspension CIC, can. 1378, § 3: * Other penalties, not excluding excommunication, can be added according to the gravity of the delict

Irregularity CIC, can. 1041, n. 6: The following are irregular for receiving orders: a person who has placed an act of orders reserved to those in the order of episcopate or prebyterate while … lacking that order CIC, can. 1044, § 1, n. 3: The following are irregular for the exercise of orders received: a person who has committed a delict mentioned in can. 1041, [n. 6]

Dispensation from Irregularity [before MP SST] • granted by the Ordinary (CIC, can. 1047, § 4) [after MP SST] • reserved to the CDF ratione materiae

SST Art. 2, § 1, 2° Simulation of the Eucharist The simulation of the [Eucharist], mentioned in CIC, can. 1379 & in CCEO, can. 1443 CIC, can. 1379: “In addition to the cases mentioned in can. 1378, a person who simulates the administration of a sacrament is to be punished with a just penalty”. CCEO, can. 1443: A person who has simulated the celebration of the Divine Liturgy or other sacraments is to be punished with an appropriate penalty, not excluding a major excommunication.

“Simulation” The external rite does not correspond to the intention of the celebrant. The community is thus gravely deceived

Penalties CIC, can. 1379: [Any person] is to be punished with a just penalty. [Cfr can. 1349: the judge cannot impose perpetual penalties] CCEO, can. 1443: [Any person] is to be punished with an appropriate penalty, not excluding a major excommunication

Delicts against the Eucharist 4. The concelebration of the Eucharist with a [protestant] minister (Art. 2, n. 3°)

SST Art. 2, § 1, 3° Prohibited concelebration of the Eucharist The concelebration of the Eucharistic Sacrifice - prohibited in CIC, can. 908 & in CCEO, can. 702, - mentioned in CIC, can. 1365 & in CCEO, can. 1440, with ministers of ecclesial communities, which do not have apostolic succession and do not acknowledge the sacramental dignity of priestly ordination.

The General Principle: Prohibition of concelebration with Non-Catholics (whether Orthodox or Protestant) n CIC, can. 908: Catholic priests are forbidden n CCEO, can. 702: Catholic priests are to concelebrate the Eucharist with priests or ministers of Churches or ecclesial communities which do not have full communion with the Catholic Church. forbidden to concelebrate the Divine Liturgy with non-Catholic priests or ministers.

Penalties n CIC, can. 1365: A person guilty of n CCEO, can. 1440: A person who violates the prohibited participation in sacred rites (communicatio in sacris) is to be punished with a just penalty. [Cfr can. 1349] norms of law concerning participation in sacred rites (communicatio in sacris) can be punished with an appropriate penalty. [Cfr can. 1409, § 2]

Delicts against the Eucharist 5. The consecration in sacrilegum finem of one species without the other, or of both outside Holy Mass (Art. 2, § 2)

SST Art. 2, § 2 Sacrilegious consecration of the species n n n It is a delictum gravius to consecrate for a sacrilegious purpose – one matter without the other in a Eucharistic celebration, – or even both outside of the Eucharistic celebration. CIC, can. 927: It is absolutely forbidden [NEFAS EST], even in extreme urgent necessity, to consecrate one matter without the other or even both outside the eucharistic celebration.

Penalties One who has perpetrated this delict is to be punished according to the gravity of the crime, not excluding dismissal or deposition. (MP SST Art. 2, § 2)

4 Delicts against the holiness of the Sacrament of Penance (SST Art. 3) n 1° The absolution of an accomplice n 2° Sollicitation n 3° Direct and indirect violation of the Seal n 4° Recording and transmission of confession

Delicts against the sanctity of the Sacrament of Penance 1. Absolution of an accomplice in a sin against the Sixth Comandment (Art. 3, n. 1° ) 2. Solicitation to a sin against the Sixth Comandment (Art. 3, n. 2° )

The absolution of an accomplice SST Art. 3, 1° n The absolution of an accomplice in a sin against the sixth commandment of the Decalogue, n mentioned in: – CIC, can. 1378, § 1 – CCEO, can. 1457

Invalidity of the Absolution n CIC, can. 977 n CCEO, can. 730 “The absolution of an accomplice in a sin against the sixth commandment of the Decalogue is invalid except in danger of death” “The absolution of an accomplice in a sin against chastity is invalid except in the danger of death”

Penalties n CIC, can. 1378, § 1 “A priest who acts against the prescript of can. 977 incurs a latae sententiae excommunication reserved to the Apostolic See” n CCEO, can. 1457 “ A priest who has absolved an accomplice in a sin against chastity is to be punished with a major excommunication, with due regard for canon 728, § 1, n. 2 [absolution from the sin of absolutio complicis is reserved to the Apostolic See]”

SST Art. 3, 2° Sollicitation The solicitation to a sin against the sixth commandment of the Decalogue n in the act, on the occasion, or under the pretext of confession, n mentioned in: n – CIC, can. 1387 – CCEO, can. 1458 n if it is directed to sinning with the confessor himself.

Notanda n Sollicitatio ad turpia with the confessor himself is a delictum gravius (MP SST Art. 3, n. 2) n Sollicitatio ad turpia with a third party is a canonical crime simplicter (CIC can. 1387; CCEO can. 1458)

Notanda 2 n “Sollicitatio inchoata”: when the confessor simply invites the penitent to a further meeting after confession with the intention to solicit sex n The abuse of confession for “grooming” of minors

Penalties n CIC, can. 1387 A priest who in the act, on the occasion, or under the pretext of confession solicits a penitent to sin against the sixth commandment of the Decalogue is to be punished, according to the gravity of the delict, by suspension, prohibitions, and privations; in graver cases he is to be dismissed from the clerical state. n CCEO, can. 1458 A priest who in the act, on the occasion, or under the pretext of confession, has solicited a penitent to sin against chastity, is to be punished with an appropriate penalty, not excluding deposition.

Delicts against the sanctity of the Sacrament of Penance 3. The direct or indirect violation of the seal of confession (Art. 3, n. 3°). 4. The recording or transmission, through the means of social communication, of the contents of confession (Art. 3, n. 4°).

SST Art. 3, 3° Direct and indirect violation of the Seal the direct and indirect violation of the sacramental seal, n mentioned in: n – CIC, can. 1388, § 1 – CCEO, can. 1456, § 1 (Decision by Pope John Paul II, 7 February 2003, to introduce “indirect” violation under MP SST Art. 3, n. 3)

Penalties n CIC, canon 1388, § 1 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. n CCEO, can. 1456, § 1 A confessor who has directly violated the sacramental seal is to be punished with a major excommunication, with due regard for canon 728, § 1, n. 1 [Absolution reserved to the Apostolic See]; however, if he broke this seal in another manner, he is to be punished with an appropriate penalty.

SST Art. 3, 4° Recording and transmission of confession n The recording by any technical instrument and the broadcast/transmission by means of instruments of social communication of that which is said in sacramental confession by the confessor or by the penitent (Decree of the CDF of 23 September 1988: AAS 80 [1988] 1367). Included by Pope John Paul II on 7 February 2003

Penalty n n With due regard to can. 1388 [de sigillo], whoever, by whatever technical instrument, records or broadcasts by means of instruments of social communication whatever is said, by either the confessor or the penitent, in one’s own or another person’s Sacramental Confession, whether real or pretended, incurs a latae sententiae excommunication (Decretum CDF, 23 September 1988: AAS 80 [1988] 1367)

Addendum de iure condendo? CIC, can. 1378, § 2, n. 2 [No parallel can. In CCEO]: The following incur a latae sententiae penalty of interdict or, if a cleric, a latae sententiae penalty of suspension: 2° apart from the case mentioned in § 1 [absolutio complicis], a person who, though unable to give sacramental absolution validly, attempts to impart it or who hears sacramental confession. § 3 In the cases mentioned in § 2, other penalties, not excluding excommunication, can be added according to the gravity of the delict.

A Special Rule MP SST Art. 20 § 1. In cases concerning the delicts mentioned in Art. 3, the Tribunal cannot indicate the name of the accuser to either the accused or his Patron unless the accuser has expressly consented. § 2. The same Tribunal must consider the particular importance of the question concerning the credibility of the accuser. § 3. Nevertheless, it is to be observed that any danger of violating the sacramental seal must be completely avoided.

Delict against morals (MP SST Art. 4, § 1) n Sin against the Sixth Comandment n committed by a cleric n with a minor under 18 years of age

Delict of sexual abuse of a minor under 18 (MP SST Art. 4, § 2) The punishment – According to the gravity of the offence – Not excluding dismissal from the clerical state

SEXUAL ABUSE OF A MINOR n An external, objectively grave violation of the sixth commandment n Need not be a complete act of intercourse n Need not involve force, physical contact, or a discernible harmful outcome

delictum contra Sextum cum minore – Direct abuse (e. g: physical contact) – Indirect abuse (e. g: showing pornography to minors) – Includes the downloading intuitu commercii of paedophile pornography from the internet [+ other factors of the case]

FORMS OF CONTACT SEXUAL ABUSE OF MINORS. Open-mouth Kissing n Handling or Fondling n Oral Sex n Frottage Pornography (child participates in making of sexually explicit videos or pictures) n Intercourse n Anal Sex n Bestiality (sexual acts with animals) n n From Rape of the Innocent, by Julian Whetsell-Mitchell (Taylor and Francis, 1995) figure 4, page 8

FORMS OF NONCONTACT SEXUAL ABUSE OF MINORS Sexual Comments n Exhibitionism n Voyeurism n Showing Pornographic Films/Videos n From Rape of the Innocent, by Julian Whetsell-Mitchell (Taylor and Francis, 1995) figure 4, page 8.

“delictum. . . cum minore infra aetatem duodeviginti [18] annorum”. The spectrum is very wide and includes different types of sexual behaviour :

npaedophilia (the sexual attraction to prepubescent minors) nephebophilia (the sexual attraction of a male to adolescent males)

nhomosexualit y (the sexual attraction to adults of the same sex)

nheterosexuality (the sexual attraction to adults of the other sex). – Between the ages of 16 and 18 some “minors” may be perceived and desired as partners in homosexual or heterosexual relations.

Prescription/Statute of limitations (MP SST Art. 5) n n n § 1 Decennium (10 years) § 2 Normal running: from date of delict (CIC 1362, § 2) – special provision for sex abuse cases: from 18 th birthday of the victim - Actio criminalis (CIC 1362, § 2) - Actio poenalis (CIC 1363) Faculty of the CDF to derogate from prescription in particular cases Ex audientia Summi Pontificis 7 November 2002; confirmed 6 May 2005

The relevance and use of CIC can. 1399 n Can. 1399. “Besides the cases stated here or in other laws, an external violation of a divine or an ecclesiastical law can be punished by a just penalty only when the particular seriousness of the violation demands punishment and there is an urgent need to preclude or repair scandal”. – Applicable for cases not covered expressly by the law (e. g. rampant homosexuality) – Ex can. 1349: penalty of dismissal cannot be applied.