ABUSO

ABUSE. — Abuse is the illicit, unreasonable use of a thing or a right. Moral theology has not yet developed a true doctrine of abuse; therefore, it must be derived from the principles that form the basis of moral order. In general terms, however, it can be said that whenever a person, by immoderately using beings, does not respect their nature or employs them unreasonably—i.e., outside an honest purpose—commits a sin of abuse.

1. CANON LAW. — In the legal field, particular importance is given, among the various forms of abuse, to what is commonly referred to as abuse of authority or power or office. This consists in maliciously exceeding, whether in intent, substance, or manner, the limits imposed by law on the exercise of certain faculties, most of which pertain to a public office. Such abuse— which presupposes that the subject legitimately and effectively possesses the authority or office and is therefore not to be confused with the usurpation of titles or powers—is generally considered under different aspects, depending on whether it appears:
a) as a constitutive element of those crimes that can only be committed by persons invested with certain functions;
b) as a special aggravating circumstance of certain crimes;
c) as a common aggravating circumstance, applicable to any violation of penal law;
d) as a crime in itself.

The Code of Canon Law provides for the first hypothesis in cann. 2334 n. 1 (promulgation of laws or decrees against the freedom and rights of the Church), 2364 and following (arbitrary administration of sacraments), 2369 (violation of the sacramental seal), 2373 (illegitimate conferral of sacred orders), 2406 (falsification of documents committed by the parish priest or a curial official), and in other similar provisions aimed at safeguarding, beyond the legal goods they directly protect, the normal exercise of the power of order and jurisdiction.

As a special aggravating circumstance, abuse of authority or office is contemplated, for example, in cann. 2331, § 2, and 2342, n. 2, according to which the status of cleric or religious in those who incite subjects to disobedience and in those who violate monastic enclosure results in the application of more severe penalties.

As a common aggravating circumstance, it is addressed in can. 2207, which states that “apart from other aggravating circumstances, the crime is increased: ... 2° by abuse of authority or office in committing the crime.” It is unclear in doctrine whether the term “authority” here should be understood in its broadest sense (thus including authority derived from private relationships, such as that of a father over his children, a master over servants, a teacher over students, etc.), or whether it refers only to the exercise of public functions, legislative, administrative, or judicial. A widely held opinion is that, for the purposes of the aggravating circumstance in question, abuse of even a purely civil office is taken into consideration; and it is certain that this aggravating circumstance can and must be applied insofar as the abuse of authority or office facilitated the commission of the crime.

Abuse of power as a crime in itself is provided for in can. 2404, which expressly prescribes that any abuse of ecclesiastical power is to be punished according to the prudent discretion of the legitimate superior in proportion to the gravity of the fault, unless specific legal provisions establish a determined penalty for certain abuses. In the generic formulation of this canon—where the words *ecclesiastica potestas* clearly indicate the exclusion of any power that is not public—are included all those abuses that are difficult to classify under specific criminal configurations, which, under the law of decretals, were known as *excessus praelatorum*. Examples include imposing excessive burdens on subjects; imposing unjust censures; conferring benefices on unworthy persons; arbitrarily granting indulgences, etc. If the authority exercised by the agent derives from a privilege (v. PRIVILEGE), the fact of abusing it may result, in addition to the appropriate penalties to be determined case by case by the superior, in the loss of the privilege itself (can. 78).

2. CIVIL LAW. — Substantially analogous to the system in force in canon law is that followed by civil legislation. The Italian Penal Code considers abuse of the powers inherent in a public office and, in general, abuse of authority not only as a constituent element of certain crimes (particularly those listed under the heading “Crimes of Public Officials Against Public Administration”: art. 314 et seq.), but also as a special aggravating circumstance of certain offenses (e.g., violation of domicile, art. 615), as a common aggravating circumstance (art. 61, n. 9), and as a crime in itself (art. 323).

Unlike the abrogated code—which devoted a special chapter, justly considered derogatory to ecclesiastical dignity, to the so-called abuses of the clergy (consisting mainly in the fact that a minister of worship, by taking advantage of his status, incited the faithful to scorn institutions or disregard laws, or compelled someone to perform or declare acts contrary to them)—the current code treats the minister of a cult—whatever it may be, including non-Catholic cults—on the same footing as a public official and a person entrusted with a public service, both with regard to the aggravating circumstance referred to in art. 61, n. 9, and with regard to the crime of “incitement to scorn and disparagement of institutions, laws, and acts of authority,” provided for in art. 327. Abuse of ecclesiastical office is therefore equated, for this purpose, with abuse of public office.

Among other particular forms of abuse contemplated by civil penal law, we may mention: abuse of means of correction or discipline (art. 571); abuse of popular credulity (art. 661); abuse of a blank document (art. 486); abuse of narcotic substances (art. 729).

Finally, mention should be made of the so-called abuse of right. According to a recent doctrine, inspired by highly moral motives and partially adopted by some modern legislation (e.g., art. 135 of the Polish Code of Obligations), this occurs when the holder of a right exercises it solely to harm another (subjective abuse, acts of emulation) or by performing acts contrary to the purpose of the right itself (objective abuse). It should be noted in this regard that the ministerial draft of the new Italian Civil Code (general part) contained an article stating: “No one may exercise their right in a manner contrary to the purpose for which the right is recognized.” In the Civil Code, the principle is retained only for the right of property, with art. 833 establishing that “the owner may not perform acts that have no other purpose than to harm or cause annoyance to others.”

**