Crime

DELITTO. —

I. GENERAL NOTIONS

In canon law, a delict is defined by the CIC as: “an external and morally imputable violation of a law, for which at least an indeterminate canonical sanction is prescribed” (can. 2195 § 1).

For a delict to exist, therefore, three elements common to all delicts are always necessary, even in canon penal law (as in the penal law of the State), in addition to the specific elements required by law for each type of delict: a) an objective or material element, that is, an external human action; b) a subjective or moral or psychic element, that is, either malice or culpability; and c) a juridical element, namely, a legal norm (v.) precept (v.) prescribing a penalty for anyone who performs the action.

The necessity of the juridical element—which in reality is rather a presupposition than an element of the delict—is now almost universally accepted. It was introduced into penal law especially from the nineteenth century onward, whereas previously any illicit external action that disturbed the social order was deemed punishable, even if no incriminating norm had previously existed.

In canon law, the principle of the necessity of the juridical element (nullum crimen sine lege) was accepted only with the CIC, which nevertheless considerably attenuates it in practice, owing to the special requirements of protecting the social order in the Church, given her supernatural purpose. Indeed, in addition to delicts specifically defined in ecclesiastical laws or precepts, the punishability of any violation of law is generally provided for whenever punishment is necessary because of the scandal that might result or the particular gravity of the transgression (can. 2222 § 1).

In conformity with the systematic structure of the CIC, for the juridical element of the delict, that is, for penal laws and precepts, V. PENA. It need only be added here that the absence of this element means that the so-called putative delict is not punishable. This occurs when someone performs an action that is not considered a delict by any norm, while he erroneously believes that it constitutes a delict.

II. CLASSIFICATION OF DELICTS

Delicts are customarily classified according to various criteria, some of which are proper to canon law. The principal classifications are:

a) ecclesiastical, civil, or mixed, according as they are regarded as delicts only by the law of the Church, only by that of the State, or by both; for the punishment of the second and third categories, the Church recognizes the competence of the State (for the latter concurrently with that of the Church itself), unless the offender is entitled to the privilege of forum (v. PRIVILEGI DEI CHIERICI); and in mixed delicts the Church generally does not punish the offender if he is a layman and has already been punished, or it may reasonably be expected that he will be punished, by the civil authority (cann. 1553 § 1, 1933 § 3, 2223 § 3, n. 2);

b) occult, public, and notorious: occult delicts are those that cannot be proved in the external forum; public delicts are those whose existence has already become known or may reasonably be expected to become easily known; notorious delicts notorietate facti are those which, because of the circumstances in which they were committed or because of the publicity they have received, can no longer be concealed or justified; notorious delicts notorietate iuris are those established by a judgment of the competent judge or judicially confessed by the offender (can. 2197). The distinction is very important, because judicial proceedings for the punishment of the offender may take place only when the delict is public (can. 1933 § 1); and if the delict is notorious, in many cases the penalty, if it is latae sententiae, entails more serious effects (v. PENA);

c) omission-based or commission-based, according as the delict consists in inaction, that is, abstention from a required activity, or in active conduct (if the delict consists in a positive event that can also be caused by omission, it is called a commission-based delict by omission);

d) formal or material (the terms are not used by everyone in the same sense): formal delicts are those for whose consummation the offender’s act or omission is sufficient (e.g., heresy, superstition, and all omission-based delicts); material delicts are those that additionally require the occurrence of an event distinct from the act (e.g., homicide, abortion); in the former, the category of an uncompleted delict is not possible (v. DELITTO);

e) single-act or compound-execution delicts: the former are delicts whose execution is completed in a single act, whereas in the latter there may be activity of greater or lesser duration and complexity (iter criminis) before consummation is reached; in the former, neither an attempt nor an uncompleted delict can be conceived;

f) instantaneous or permanent: in the former, the criminal activity is completed with the performance of everything necessary for the consummation of the delict; in the latter, it persists, maintaining in force the unlawful situation in which the delict consists (e.g., possession of prohibited books);

g) simple or complex: delicts are complex when one of their constitutive elements or an aggravating circumstance would in itself constitute a distinct delict (and is therefore not punished separately: V. CONCORSO DI REATI E DI PENE); all others are simple;

h) harmful or dangerous: a delict is harmful when its consummation requires the occurrence of an injury to the interest that the law sought to protect when it classified that act as a delict (e.g., homicide, theft); dangerous delicts are those for which this is not required, it being sufficient that the interest protected by the penal norm be placed in danger (e.g., insult, blasphemy, and all formal delicts);

i) unilateral or bilateral: in the latter, unlike the former, the existence of a delictual relationship between two or more persons is indispensable, with the persons appearing as the two parties to a juridical relationship (e.g., adultery, bigamy, dueling, incest, etc.); unilateral delicts are further called collective when the concept of the delict requires the intervention of several persons acting in association for the attainment of a common goal (e.g.: conspiracy); V. CONCORSO NEL DELITTO;

k) prosecutable ex officio or upon complaint by a party: those delicts are said to be punishable upon complaint by a party (in canon law, insult and defamation, and not even always: V. DIFFAMAZIONE, QUERELA) which the law establishes are not punishable unless the person offended by the delict requests that the offender be punished.

For the concept of a continuing delict, V. CONCORSO DI REATI E DI PENE.

III. SUBJECTS OF THE OFFENSE

In an offense, active subjects and passive subjects are distinguished.

The active subjects of an offense are those who commit or participate in committing the act constituting the offense, and therefore both the perpetrator of the offense and the accomplices.

According to the conception prevailing today (though not without controversy in canon law), the active subject of an offense can only be a physical person (a human being), not a juridical person: indeed, in canon law only the baptized (whether Catholic or not) are subject to penal laws (or precepts), since the unbaptized are not subject to the jurisdiction of the Church; and the Supreme Pontiff cannot be the active subject of an offense, since the penalties established by him or by one inferior to him cannot be applied to him.

Not all offenses, however, can be committed by anyone (or, in canon law, by any baptized person: common offenses). Many acts constitute offenses only if the active subject possesses or does not possess certain factual or legal qualities (special offenses); thus, for certain offenses it is necessary that the perpetrator be — a cleric (cann. 2340 § 2, 2379, 2396, 2400), — a priest (cann. 2321, 2365, 2366, 2376, 2377), — a cleric in sacred orders (cann. 2359 § 1, 2378, 2399), — a bishop (cann. 2370, 2398), — a cardinal (can. 2397), — both a cleric and a religious (can. 2387), — a cleric or religious (can. 2380), — a religious (cann. 2385, 2386, 2389), — a nun (cann. 2342, n. 3), — a Catholic (can. 2375), — married (can. 2356), — one who holds certain offices (cann. 2337, 2381, 2382, 2383, 2384, 2391 § 2, 2393, 2401, 2402, 2403, 2404, 2406, 2408–2424), — or conversely, one who is not a priest (can. 2322), etc.

Moreover, the cardinals are not subject to penal law unless expressly mentioned therein (can. 2227 § 2; cf. cann. 2332 and 2397); and certain penalties are not applicable to bishops, sovereigns, and their sons (can. 2227; cf. can. 1557 § 1).

The passive subject is the person (physical or juridical) who holds the interest harmed or endangered by the offense.

As in the criminal law of the State, in addition to the particular passive subjects of individual offenses, the State itself is the passive subject of every offense; similarly, in canon law the Church is the constant passive subject of every offense, although in a large number of offenses there are also particular passive subjects (e.g., in insult the passive subject is the person insulted, in solicitation the person solicited, in homicide the person killed, etc.).

For the active subject of an offense to be punishable, it is also capacity (v.) required by criminal law, which exists only if he is capable of understanding and willing.

The age or mental state of the perpetrator of the offense may exclude or diminish his capacity to commit the offense, or (in the case of transitory mental states) exclude or diminish only his imputability.

By reason of age, infants—that is, those who have not completed seven years of age—are considered wholly incapable of committing an offense; whereas those who, although having passed that age, have not yet attained majority (that is, have not completed their twenty-first year), are presumed, unless the contrary is established, to possess diminished capacity (can. 2204), and indeed, if they are impubescent (that is, have not completed fourteen years of age if male, or twelve years if female), educational punishments rather than genuine penalties are to be applied to them (can. 2230).

By reason of mental state, those who, at the time of the offense, lack the use of reason are criminally incapable (can. 2201 § 1); and those afflicted with a mental illness depriving them of the use of reason are presumed, until the contrary is proved, to be incapable, even if they have so-called lucid intervals or remissions (can. 2201 § 2). Those, on the other hand, whose use of reason is weakened by mental illness have diminished capacity (can. 2201 § 4).

With regard to disturbances of the intellect and will arising from drunkenness, a distinction must be made: a) if the drunkenness was induced by the subject himself for the purpose of committing the offense or of arranging a justification for himself, it neither removes nor diminishes capacity and therefore imputability; b) in other cases of voluntary drunkenness, imputability is diminished, to a greater or lesser degree, according to whether it has wholly removed or merely diminished the capacity to understand and to will; c) finally, if the drunkenness is involuntary, it is treated as mental illness (can. 2201 §§ 3–4). The same rules apply to other similar disturbances of the intellect or will, such as those arising from the use of narcotic substances (can. 2201 § 4).

The active subject, although capable, is not punishable unless he is also imputable.

Imputability, which is the subjective element of the offense, presupposes not only that the action was performed consciously and voluntarily (and therefore that the agent had the capacity to understand and to will), but also the agent’s intent and fault (exceptionally, though not in canon law, the law may hold responsible for an offense even one who has neither fault nor intent; in that case one speaks of objective responsibility).

Intent (v.), which the CIC defines as «deliberata voluntas violandi legem» (can. 2206 § 1), is, in criminal law, the awareness and will to perform the action prohibited by penal law and to cause the harmful or dangerous event in which the offense consists; but in canon criminal law, the existence of intent additionally requires awareness and will to violate the law. In canon law, for the purposes of applying penalties in the external forum, intent is presumed, until the contrary is proved, when there has been a violation of the penal law or precept (can. 2200 § 2).

Fault (v.) in criminal law exists when the harmful or dangerous event in which the offense consists, even if foreseen (conscious negligence), is not intended by the agent but occurs through his negligence, imprudence, or incompetence. Conscious negligence is the most serious form of fault (the CIC calls it close to intent, can. 2203 § 1), but it nevertheless remains fault and does not thereby become intent.

Contrary to the system followed by the penal codes of States, the CIC generally establishes the punishability of every offense both on the grounds of intent (intentional offense) and on the grounds of fault (negligent offense); that is, if the offense is intentional, the penalties prescribed for it by law will be applicable; if, on the other hand, it is merely negligent, a lighter penalty will normally be applied (cf. can. 2203 § 1), unless the prescribed penalty is latae sententiae and the criminal activity is, despite the absence of intent, gravely culpable (can. 2229 § 3, n. 2).

The subjective element, and therefore the offense itself, is absent if the act occurs neither through the agent’s intent nor through his fault, but: — a) through fortuitous event (v.) or force majeure (v. can. 2203 § 2), including physical violence (cis absoluta) suffered through the action of another (can. 2205 § 1); b) through ignorance, error, or inadvertence concerning either the act itself or the legal rule prohibiting it, provided, however, that such ignorance, error, or inadvertence does not arise from the subject’s fault; if, on the other hand, it does arise from fault, the offense is considered negligent (can. 2202). It should further be noted that if the offender knows of the prohibition imposed by the law but is unaware only that a penalty is prescribed for the transgressor, the offense remains intentional, and such ignorance constitutes merely a mitigating circumstance (can. 2202 § 2).

IV. THE CIRCUMSTANCES OF THE OFFENCE

The various modalities which, while leaving the constituent elements of the offence unchanged, accompany them in the concrete case without altering the kind of offence itself are called the circumstances of the offence.

Some of these circumstances are such as to make the offence more serious (aggravating circumstances) or, conversely, less serious (mitigating circumstances), or to exclude it altogether or at least to exclude the criminal responsibility of the subject (discriminating and exculpatory circumstances).

At times the law takes certain of these circumstances into consideration in relation to individual types of offence, in order to establish that the penalty prescribed for the offence is to be increased, reduced, or excluded if the circumstance indicated by the law occurs (special [mitigating, aggravating, or exculpatory] circumstances). There are also circumstances considered by the law in general terms for every offence (general [mitigating, aggravating, or exculpatory] circumstances), which therefore, whenever they occur in any offence, produce a mitigating, aggravating, or exculpatory effect.

In the CIC, the following are considered among the general circumstances, in addition to those already examined above, which exclude or diminish criminal capacity or imputability:

1) aggravating circumstances: a) passion (v.), when it has been voluntarily provoked or fostered (can. 2206); b) the offender’s, or the person against whom the offence is committed’s, being invested with dignity (ecclesiastical or civil: can. 2207, n. 1); c) having committed the offence through abuse of authority or office (can. 2207, n. 2); d) recidivism (can. 2208, and V. RECIDIVA);

2) mitigating circumstances: a) grave fear, serious inconvenience, state of necessity (v.), when the offence consists in an action that is unlawful in itself, independently of the law of the Church, or when it is such as to amount to contempt for the faith or for ecclesiastical authority, or produces harm to souls (can. 2205 § 3); b) culpable excess in legitimate defence (can. 2205 § 4; and V. DIFESA LEGITTIMA); c) provocation, which occurs when the offence is committed in a state of anger determined by another injustice (can. 2205 § 4); d) passion (v.), which, not having been voluntarily provoked or fostered, diminishes but does not entirely remove the capacity to will (can. 2206);

3) discriminating or exculpatory circumstances: a) grave fear, serious inconvenience, state of necessity (v.), outside the cases mentioned in letter a) of the preceding number (can. 2205 § 2); b) legitimate defence (can. 2205 § 4; and V. DIFESA LEGITTIMA); c) passion (v.), which, not having been voluntarily provoked or fostered, completely prevents any capacity to will (can. 2206); d) having acted in fulfilment of an obligation imposed by a rule of law or by a legitimate command of the authority; e) having acted with the consent of the person who is harmed by the offence, provided that the act would no longer be lawful if committed with that person’s consent.

V. AZIONI NASCENTI DAL D

From the delict (whether consummated or merely attempted) two kinds of actions arise (v.): the penal action and the civil action.

The penal action, which in the CIC is more often called the criminal action, is that judicial action which in the Church belongs to the promoter of justice (v. in the State, to the public prosecutor), and is directed toward obtaining from the judge the condemnation of the guilty parties to a penalty ferendae sententiae, or a declaration that they have incurred some penalty latae sententiae (can. 2210 § 1, n. 1).

The civil or contentious action, on the other hand, belongs to those who have been harmed by the delict, and is directed toward obtaining the condemnation of those guilty of the delict to compensate the damage caused (can. 2210 § 1, n. 2); all those who have participated in the delict are in fact obliged to compensate such damage, and the obligation is joint and several as between the perpetrator of the delict and the principal accomplices, whereas the secondary accomplices may also be condemned to compensate only part of the damage (can. 2211).

If the promoter of justice brings the penal action, those who have been harmed by the delict may exercise the civil action in the same criminal proceedings, so that the same judge will rule on both actions in a single judgment (can. 2210 § 2).

Although both actions arise from the delict, they nonetheless have largely independent lives, given their different natures. Above all, they become extinguished for different reasons. Thus, while the penal action is extinguished by the death of the offender, the civil action may also be brought against his heirs, the obligation he had to compensate the damage being transmitted to them.

Prescription (v.) extinguishes each action at a different time.

The injured party’s waiver of compensation for the damage prevents the civil action from being initiated or continued, but in itself has no effect on the penal action, which cannot be waived.

Conversely, judicial reprimand (v.) extinguishes the penal action, but does not prevent the injured party from bringing or continuing the civil action. The same must be said when the competent authority remits the penalty (cf. can. 1702), or when the judge, exercising the discretion attributed to him by law, considers that he should refrain from imposing on the guilty party a penalty ferendae sententiae or from declaring that he has incurred a penalty latae sententiae (cf. can. 2223).

Still less do those acts affect the fate of the civil action by which the penal action is not extinguished, nor its course altered, but only the penalty already imposed or declared is extinguished: such acts include absolution from a censure, dispensation from a vindictive penalty, the conditional suspension of the penalty (can. 2288), etc.

VI. THE INDIVIDUAL D

In the penal codes of States, the provisions establishing penalties for individual d. are generally grouped according to the good or interest protected by those provisions, that is, according to the good or interest harmed or placed in danger by the d.

In part 3 of book V of the CIC (cann. 2314–2414), a classification based largely on this criterion is followed, although the CIC sometimes departs from II.
Since it is not possible here to enumerate the individual forms of delict (many of which have separate entries), we give the list of the various titles of part 3, in order to show the system followed by the CIC in enumerating the d.; for each title we indicate some examples of the more notable d. included under it: 1) d. against the faith and unity of the Church (heresy, apostasy, schism, publication, reading, or possession of prohibited books, violation of the norms concerning mixed marriages); 2) d. against religion (blasphemy, perjury, superstition, sacrilege, forgery of relics, trafficking in indulgences, violation of a church, cemetery, tomb, or corpse); 3) d. against ecclesiastical authorities, persons, or things (violation of the privilege of the forum or of the privilege of the canon, or of enclosure, usurpation of ecclesiastical property; V. also AUTORITÀ ECCLESIASTICHE, delitti contro le); 4) d. against life, liberty, property, good reputation, and good morals (abortion, duelling, abduction, homicide, enslavement, usury, robbery, grievous bodily harm, insult and defamation, bigamy, bestiality, sodomy, rape, procuring, adultery, concubinage, incest); 5) d. of forgery (forgery of documents, calumny); 6) d. committed in administering or receiving the Sacraments (solicitation, violation of the sacramental seal, celebration of a mixed marriage without dispensation); 7) d. against the obligations proper to the ecclesiastical or religious state (failure to wear the ecclesiastical habit and tonsure, the exercise of commerce by a cleric, violation of the vow of chastity or of the obligation of celibacy, transgression of the obligations proper to parish priests); 8) d. committed in the conferral, assumption, or relinquishment of ecclesiastical offices (simony, usurpation of office); 9) abuse of ecclesiastical power or office (generic abuse, forgery of diocesan or parochial registers).

By way of example, we also give the list of the titles of book II of the Italian Penal Code, which among penal codes is one of the most perfect, including with regard to the classification of d.: 1) d. against the personality of the State; 2) d. against public administration; 3) d. against the administration of justice; 4) d. against religious sentiment and the piety owed to the dead; 5) d. against public order; 6) d. against public safety; 7) d. against public faith; 8) d. against the public economy, industry, and commerce; 9) d. against public morality and good morals; 10) d. against the integrity and health of the race; 11) d. against the family; 12) d. against the person; 13) d. against property.