Remission of Censures

The following text is an excerpt from The Pastoral Companion by John M Huels, (Franciscan Press, Quincy, 1995), pp 141-150 and if for use only by the theology students of Tangaza College.

CHAPTER FIVE PENANCE


Remission of Censures by the Confessor

It is rare that a confessor encounters a penitent with an inflicted or declared penalty, neither of which may be remitted in the sacrament of penance by the typical confessor, except in danger of death. Thus, the treatment of penal law here will focus mainly on automatic (latae sententiae) penalties. There are three kinds of censures: excommunication, interdict, and suspension. A suspension affects clerics only.

A Automatic Excommunication
The penalty of excommunication is incurred automatically upon
commission of any of the following crimes:
1) apostasy, heresy, schism (can. 1364, §1),
2) violation of the consecrated species (can.I367),
3) physical attack on the pope (can. 1370, §1),
4) absolution of an accomplice in a sin against the sixth commandment (can. 1378, §1),
5) unauthorized ordination of a bishop, incurred by the ordaining bishop and the bishop who is ordained (can. 1382),
6) direct violation by a confessor of the seal of confession (can. 1388),
7) procuring an abortion (can. 1398),
8) by means of a technical instrument recording or divulging in the communications media what was said by a confessor or a penitent in a sacramental confession, whether performed by oneself or another. (CDF, decree Urbis et Orbis, Sept. 23, 1988, AAS 80 (1988) 1367)

Concerning the excommunication for abortion, the Pontifical Commission for the Authentic Interpretation of the Code of Canon Law decreed that an abortion is to be understood not only as the ejection of an immature fetus but also as the killing of a fetus procured in any manner and at any time from the moment of conception (See interpretation, May 23, 1988, AAS 80 (1988) 1818-19.)
The eighth penalty was promulgated in 1988. It refers to the use of a tape recorder in the confessional or similar device that can record the voice of penitent or confessor and then be divulged to the media.
N.B. The remission of the crimes in nn 2-6 is reserved to the Apostolic See.

The excommunicate is prohibited from: (1) having any ministerial participation in the celebration of the Eucharist or any other ceremonies of worship; (2) celebrating the sacraments or sacramentals and receiving the sacraments; (3) exercising any ecclesiastical offices, ministries, or functions, or placing acts of governance. (Can. 1331, §1)

B Automatic Interdict
Commission of any of the following crimes results in the penalty of automatic interdict:
1) physical attack on a bishop (can. 1370, §2),
2) pretended celebration of the Eucharist by a non-priest (can. 1378, §2, 1"),
3) attempt to impart sacramental absolution or hear confession by one who cannot do so validly (can. 1378, §2, Z),
4) false accusation of the crime of solicitation in the confession­al (can. 1390, §I)
5) attempted marriage, even civil, by a lay religious in perpetual vows (can. 1394, §2).
The crimes mentioned in nn. 2 and 3 result in automatic suspension, rather than interdict, if the offender is a cleric. The crimes in nn.l and 4 result in both automatic interdict and suspension if the offender is a cleric.
The interdicted is prohibited from: (I) having any ministerial par­ticipation in the celebration of the Eucharist or any other ceremonies of worship; and (2) celebrating the sacraments or sacramentals and receiving the sacraments (See can. 1332).

C Automatic Suspension
In addition to those who commit the crimes mentioned in nn. 1-4 above under interdict, the following also incur automatic suspension:
1) a cleric who attempts marriage, even civil (can. 1394, §1);
2) a cleric who is ordained by a bishop who does not have legitimate dimissorial letters. The suspension affects only the order received illicitly, not a prior order received lawfully. (See can. 1383.)
Suspension, which affects only clerics, prohibits: (1) all acts of the power of order; (2) all acts of the power of governance; (3) the exercise of all rights or functions connected with an office. (See can. 1334, §2; 1333, §1)
A cleric who is automatically suspended as a result of illicit ordi­nation by a bishop lacking legitimate dimissorial letters is prohibited only from exercising that order, not a lower order licitly received. (See can. 1383.)

D Exceptions to Observance of Censures

If a censure prohibits the celebration of sacraments or sacramentals or placing an act of governance, the prohibition is suspended whenever it is necessary to provide for the faithful who are in danger of death. If it is an automatic censure which has not been declared, the prohibition is moreover suspended whenever the faithful request a sacrament or sacramental or an act of governance. They may make this request for any just reason at all. (Can. 1335)
If the penalty forbids the reception of the sacraments or sacramen­tals, the prohibition is suspended as long as the person in question is in danger of death. The obligation of observing an automatic penalty, which has not been declared and is not notorious in the place where the offender is living, is suspended totally or partially insofar as the offender is unable to observe it without the danger of grave scandal or infamy. (Can. 1352)

E Those Subject to Penalties

In general, those subject to the law are subject to a penalty if they break the law, with the exceptions noted below. A penalty binds per­sonally, not territorially, and therefore remains in effect wherever one goes until it is remitted. (See cans. 11-13.)
A penalty cannot be incurred or inflicted unless the delict be per­fectly executed according to the strict letter of the law. Laws which establish a penalty are subject to strict interpretation. (See can. 18.)
Whoever does or omits anything in attempting to commit a crime but, contrary to his or her desire, has not completed the crime, is not bound to the penalty attached by law to the completed crime, unless a law or precept should state otherwise. (Can. 1328, §1; see also can. 1328, §2)
No one is punished unless the external violation of the law or precept committed by that person is gravely imputable to him or her by reason of malice or culpability. One is bound to the penalty estab­lished by a law or precept if that person deliberately violates the law or precept. If the violation occurs as a result of a lack of due diligence the person is not punished, unless the law or precept states otherwise. If the violation is external, imputability is presumed, unless it should appear otherwise. (Can. 1321)
Those who habitually lack the use of reason, even if they seem to have been of sound mind when they violated a law or precept, are considered incapable of committing a crime. (Can. 1322)
If a law has changed after a crime is committed, that law is to be applied, whether the earlier or later, which is the more favorable to the offender. If the later law abolishes the earlier one, or at least the penalty connected with it, the penalty ceases immediately. (Can. 1313)
Accomplices who are not named in a law or precept incur an auto­matic penalty connected with an offense if the offense would not have been committed without their efforts and the penalty is of such a nature that it is able to affect them. Otherwise they can be punished by inflicted penalties. (Can. 1329, §2)

F Those Exempt from All Penalties

1) Anyone under 16.
2) Anyone inculpably ignorant of the law; also inadvertence to or error of the law.
3) One who acts under physical force or in virtue of a mere acci­dent which either could not be foreseen or could not be prevented.
4) One who violates the law out of grave fear, even if only rela­tively grave, or out of necessity or serious inconvenience, unless the offense is intrinsically evil or brings harm to souls.
5) One who acts with due moderation in legitimate self-defense or defense of another against an unjust aggressor.
One lacking the use of reason.
A person who without fault thought that any of the circum­stances in nn. 4 or 5 were present. (Can. 1323)

G Those Exempt from Automatic Penalties

1) A person having only the imperfect use of reason.
2) One lacking the use of reason due to drunkenness or another similar mental disturbance which was culpable.
3) Someone in the serious heat of passion, which nevertheless did not precede or impede all deliberation of the mind and consent of the will, provided the passion was not voluntarily excited or fostered.
4) Minors (under 18).
5) Anyone who was forced, out of serious fear, even though only relatively serious, or out of necessity or serious inconvenience, if the offense was intrinsically evil or tends to be harmful to souls.
6) One who for the sake of the legitimate protection of oneself or another acted against an unjust aggressor but did not observe due moderation.
7) One who acted against another who gravely or unjustly pro­voked it.
8) One who through error or culpability thought that any of the circumstances in can. 1323, nn. 4 or 5 were present.
9) One who without fault did not know that there was a penalty attached to the law or precept.
10) One who acted without full imputability, provided it remained serious. (Can. 1324, §l)
Crass, supine, or affected ignorance can never be considered in applying the prescriptions of canons 1323 and 1324. Likewise not exempting are drunkenness or other disturbances of the mind, if they are deliberately induced to perpetrate the crime or excuse it, or passion which is willfully excited or fostered. (Can. 1325)

H Remission of Automatic Penalties Not Reserved
Automatic penalties not reserved to the Apostolic See, including abortion, can be remitted by any of the following persons, provided the penalties have not been declared, i.e., the competent ecclesiastical authority has not made any public declaration that the offender has incurred a penalty automatically upon the commission of some delict:
1) All Ordinaries for their subjects; and all local Ordinaries for their subjects and those in their territory or those who committed an offense there. (See can. 1355, §2)
2) All bishops in the act of sacramental confession. (See can. 1355, §2)
3) Canons penitentiary (or their equivalent) in the sacramental forum. (See can. 508.)
4) Chaplains in hospitals, prisons, and on ships on voyages. (See can. 566, §2)
5) Any confessor in the internal sacramental forum if it would be hard on the penitent to remain in a state of serious sin for the dura­tion necessary for the competent superior to provide the remission. This applies only to automatic excommunications and interdicts, but not suspensions. In granting the remission the confessor should enjoin the penitent with the burden of having recourse within one month to, and obeying the mandates of, any of the authorities in nn. 1-3 above, under pain of re-incidence of the penalty. Meanwhile he should impose an appropriate penance and, to the extent indicated, should impose the repair of scandal and harm. However, recourse can also be taken by the confessor without mentioning any names. (Can. 1357, §§ 1, 2)
The confessor may presume that anyone who comes to con­fession is finding it hard to remain in serious sin. According to the traditional commentators, even if the penitent finds it hard to remain in serious sin for one day, the above provisions may be used by the confessor. (See CLSA Comm, 917.)
6) Any priest, even one without the faculty to hear confessions, may absolve from all penalties if the penitent is in danger of death, even if an approved priest is present. (Can. 976) Should the penitent recover, recourse is not necessary unless the censure is reserved to the Apostolic See. (See can. 1357, §3.)
In the case of the automatic censure of excommunication for the crime of abortion, confessors of the mendicant religious orders and certain other institutes enjoy the privilege of absolv­ing the censure if it has not been declared. (See Apostolic Penitentiary, instruction Legislator canonicus, private, June 29, 1990.)

J Automatic Penalties Reserved to Apostolic See
The following can remit automatic penalties reserved to the Apostolic See:
1) The Apostolic See. Recourse is had by the penitent or the con­fessor, without mentioning any names, to the Apostolic Penitentiary.
2) Any confessor in the internal sacramental forum if it would be hard on the penitent to remain in a state of serious sin during the time necessary to receive a remission from the Apostolic See. The con­ditions of canon 1357 are to be observed as described above at H, 5 with the Apostolic See being the competent authority to which recourse is made. (See can. 1357, §§ 1, 2)
3) Any priest, even one without the faculty to hear confessions, may absolve from all penalties if the person is in danger of death. If the person recovers, recourse must be made to the Apostolic See. (See cans. 976, 1357, §3.)

K Formula of Remission
When a priest, in accord with the norm of law, remits an automat­ic censure in the sacramental forum, the formula of absolution is not to be changed. It suffices that he intend to remit the censure as well as absolve the sins. Nevertheless, the confessor can remit the censure before he absolves the sins by using the formula given below for use outside the sacrament of penance. (See RPen, Appendix I, n.1)
When a priest, according to the norm of law, remits a censure out­side the sacrament of penance, the following formula is used: "By the power granted to me, I absolve you from the bond of excommunica­tion (suspension, interdict). In the name of the Father, and of the Son, + and of the Holy Spirit." (See ibid., n. 2.)
The remission of a penalty is a separate act from the absolu­tion of sin. However, it suffices that a confessor who has the power to remit the penalty intend to do so at the same time he absolves from sin. With this intention, by reciting the formula of absolution the confessor simultaneously remits the penalty and absolves from the sins. A second option would be to remit the cen­sure using the special formula above before giving absolution.

L Eastern Canon Law
It is reserved to the Apostolic See to absolve from the following sins: (1) a direct violation of the sacramental seal; and (2) absolution of an accomplice in a sin against chastity. It is reserved to the eparchial bishop to absolve from the sin of procuring a completed abortion. (CCEC,can.728)
Any reservation of the absolution from the sin lacks all force: (I) if a sick person cannot leave the house or if a spouse made the confession for the purpose of celebrating marriage; (2) if in the prudent judgment of the confessor the faculty of absolving cannot be sought from the competent authority without serious inconvenience to the penitent or without danger of violating the sacramental seal; (3) outside the boundaries of the territory in which the authority who has reserved the sin exercises his power. (CCEC, can. 792)
The Eastern canon law is considerably different from and simpler than the Latin law on the issue of reserved penalties. There are no automatic penalties in the Eastern code, so the above reserved sins (two reserved to the Apostolic See and one to the eparchial bishop) would concern the confessor more than the var­ious penalties which must be imposed and remitted by a compe­tent ecclesiastical authority. Among the crimes in the Eastern code, only one is reserved to the Apostolic See. The crime of using physical force against the pope or causing him some other grave injury is to be punished with a major excommunication whose remission is reserved to the pope himself. (See CCEC, can. 1445, §1.)

Four

Remission of Penalty for Abortion
Abortion, which results in automatic excommunication, is likely the crime most often encountered in the sacrament of penance, and so it is a practical example to demonstrate how a confessor should handle automatic censures. In this discussion the typical case will be assumed, i.e., not the danger of death situation and not a priest who has power to remit censures as discussed above (bishops, Ordinaries, canons peniten­tiary, mendicant religious, chaplains in hospitals, prisons, and on sea journeys). When the priest hears the sin of abortion confessed, he must determine whether a crime was truly committed by ascertaining cer­tain facts from the penitent. If the answer is yes to any of the follow­ing questions, then the crime was not committed and the sin can be handled as usual.
1) Was it only an attempted abortion that did not succeed, or was it indirect?
An example of an indirect abortion would be a hysterectomy when the intention was not to abort the fetus but only to remove a diseased uterus.
2) If the penitent was an accomplice to the abortion, would the crime have been committed without the accomplice's action or advice?
For example, the doctor who directly procures the abortion might well incur the penalty; on the other hand, the assistance rendered by a nurse may not be so direct and decisive as to incur the penalty. Or a parent who advises the abortion may have incurred the penalty if the daughter would not have acted with­out such advice.
3) Was the penitent ignorant, through no fault of his or her own, that a penalty was attached to the law forbidding abortion?
It is not enough to know that abortion is a mortal sin. One must also know that a penalty is incurred, although precise knowl­edge about the nature of the penalty is not required to incur it.
4) Was the penitent under 18 at the time the crime was commit­ted?
5) Was there inadvertence to or error of the law?
Had the penitent acted without recalling that this was an offense which resulted in a penalty? Did the penitent make a mis­take about the law, e.g., thinking it applied only to the person hav­ing the abortion and not accomplices?
If the mother, e.g., intended to get an abortion, but accidental­ly had a fall which resulted in an abortion, she would not have incurred the penalty. It must be intentional with the result that an inviable fetus is aborted
For example, borderline mentally retarded, psychological dis­turbance, etc.
8) Had the penitent acted out of serious fear, even if only rela­tively serious, or through necessity or serious inconvenience?
Was there, e.g., a serious fear about parental or societal reaction to a pregnancy? Was it a necessity, e.g., a doctor who performs an abortion to save the life of the mother?
9) Did the penitent erroneously believe that one of the circum­stances in n. 8 above was verified?
For example, did she think that having a child was a serious enough inconvenience in her circumstances to warrant an abor­tion when objectively it is not?
10) Did the penitent erroneously believe that the abortion was done in self-defense and therefore was justifiable?
For example, if her life was in danger, did she think an abor­tion was an acceptable alternative?
11) Did the person procure the abortion while lacking the use of reason due to drunkenness or another mental disturbance which was culpable but not deliberately induced to commit or excuse the offense?
12) Was the abortion induced by a person in the serious heat of passion which was not voluntarily excited or fostered?
If the answer is yes to anyone of these questions, the automatic censure of excommunication was not incurred. If the answer is no to ALL of the above questions, then the person has likely incurred an automatic excommunication. If that is the case, a bishop, an Ordinary, or a canon penitentiary (or his equivalent) can absolve the censure. However, if it would be hard on the penitent to remain in a state of serious sin during the time necessary for the competent superior to provide a remission, any confessor can remit the censure.
A good way to proceed is for the confessor to arrange for the peni­tent to return to him at an agreed upon time within the next month, notifying the penitent of the reason for this, namely, that he has the power only to absolve the censure temporarily but he must have recourse to someone who has the power for definitive remission. (The penitent can return either in confession or outside of it, although if he or she confesses behind the grille it should be presumed that anonymi­ty is desired.) Before the penitent returns the confessor should request a remission from the local Ordinary, and if the confessor knows the penitent's identity, it should not be mentioned. When the penitent returns, the confessor informs the penitent of the remission. In some dioceses all confessors have the delegated faculty to remit the censure of abortion without recourse.

Mid-Semester Reconciliation Questions

SACRAMENTOLOGY III

Please answer one question
1. Investigate the ethos of reconciliation in the Old Testament communities. Write the prayer of absolution.

2. Show how the ministry of reconciliation was central in the life and ministry of Jesus. In relation to this ministry, what did he pass on to his disciples? Write the prayer of absolution.

3. Examine the way the Christians of the NT communities dealt with public sinners. Write about the development of Canonical Penance and the Irish Form of Penance. Write the prayer of absolution.

4. Explore and evaluate the theologies of the Council of Trent and the Second Vatican Council on the sacrament of reconciliation. What developments occurred? Discuss integral confession. Write the prayer of absolution.

5. Give reasons for the decline in the reception of the Sacrament of Reconciliation in modern times. What are the hopeful signs for the future? As a confessor, how would you encourage people to receive the sacrament? Write the prayer of absolution.

6. Explain the following terms: seal of confession, reserved sin, integral confession, contrition, conscience, scruples, penance, and absolution. Write the prayer of absolution.

7. Explore how you would minister as a confessor to children, to religious communities and to elderly people. Write the prayer of absolution.

8. Discuss helpful guidelines for a confessor in ministering to a penitent in the sacrament of reconciliation. What is the role of penance in the sacrament? Write the prayer of absolution.