Crime

CRIME. - I. GENERAL NOTIONS. - In canon law, d. is defined by the CIC: "the external and morally imputable violation of a law for which a canonical sanction, at least indeterminate, is established" (can. 2195 § 1).

For there to be a d., therefore, always necessary — even in canonical criminal law (as in the criminal law of the State) — in addition to the specific elements required by law for each species of d., are three elements common to all d.: a) objective or material, that is, an external human action; b) subjective or moral or psychic, that is, either dolus or culpa; c) juridical, that is, the norm of law (v.) or a particular precept (v.) that attaches a penalty for whoever performs the action.

The necessity of the juridical element (which in reality is rather a presupposition than an element of the d.), now almost universally admitted, came to be introduced into criminal law especially from the 19th century onward, whereas previously any unlawful external action that disturbed the social order was held punishable, even if no incriminating norm pre-existed.

In canon law the principle of the necessity of the juridical element (nullum crimen sine lege) was accepted only with the CIC, which, however, considerably attenuates it in practice, on account of the special requirements of protecting the social order in the Church, given the latter's supernatural end. In fact, in addition to the d. specifically set out in ecclesiastical law or precepts, the punishability of any violation of law is provided for in a general way, whenever punishment is necessary because of the scandal that may possibly arise or because of the particular gravity of the transgression (can. 2222 § 1).

In accordance with the systematics of the CIC, for the juridical element of the d., that is, for penal laws and precepts, v. PENA. Here it is enough to add that the absence of this element means that the so-called putative d. is not punishable, which occurs when someone performs an action that is not considered a d. by any norm, while he erroneously believes that it constitutes a d.

II. CLASSIFICATION OF CRIME

Crimes 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 considered crimes only by the law of the Church, or only by that of the State, or by both; for the punishment of the second and third the Church recognizes the competence of the State (for the latter in concurrence with that of the Church herself), unless the guilty party is entitled to the privilege of the forum (v. PRIVILEGI DEI CHIERICI); and in mixed crimes the Church generally does not punish the guilty party, if he is a layman, and has already been punished or it is reasonably foreseen that he will be punished by the civil authority (cann. 1553 § 1, 1933 § 3, 2223 § 3, n. 2); b) occult, public and notorious: occult are those which cannot be proved in the external forum; public those whose knowledge has already been divulged or which it is reasonably foreseen will easily be divulged; notorious by notoriety of fact those which, by the circumstances in which they were committed or by the divulgence that has occurred, can no longer be concealed or justified; notorious by notoriety of law, those established by sentence of the competent judge or judicially confessed by the guilty party (can. 2197). The distinction is very important, because only if the crime is public can the judicial process for the punishment of the guilty party take place (can. 1933 § 1); and if the crime is notorious, in many cases the penalty, if it is latae sententiae, entails graver effects (v. PENA); c) omissive or commissive, according as the crime consists in an inaction, that is, in an abstention from a dutiful activity, or in active conduct (if the crime consists in a positive event that can also be caused by omission, one speaks of commissive crimes by omission); d) formal or material (the terms are not used by everyone in the same sense): formal are those crimes for whose consummation the action or omission of the guilty party suffices (e.g., heresy, superstition, and all omissive crimes); material those which further require the occurrence of an event distinct from the action (e.g., homicide, abortion); in the former the figure of the attempted crime is not possible (v. TENTATIVO DEL DELITTO); e) unisubsistent or of composite execution: the former are those crimes whose execution is exhausted in a single act, whereas in the latter there may be a more or less prolonged and complex activity (iter criminis) before reaching consummation; in the former neither attempt nor the attempted crime is conceivable; f) instantaneous or permanent: in the former the criminal activity is exhausted with the completion of what is necessary for the consummation of the crime, whereas in the latter it persists, keeping in being the illegal situation in which the crime consists (e.g., possession of prohibited books); g) simple or complex: complex are those crimes one constitutive element or aggravating circumstance of which would by itself constitute a distinct crime (which therefore is not punished separately: v. CONCORSO DI REATI E DI PENE); simple are all the others; h) of damage or of danger: a crime of damage is one for whose consummation the occurrence of an injury to the interest that the law intended to protect when it considered that act as a crime is required (e.g., homicide, theft); crimes of danger are those in which this is not required, it being sufficient that the interest protected by the penal norm be endangered (e.g., insult, blasphemy and all formal crimes); i) unilateral or bilateral: in the latter, unlike the former, the existence of a criminal relationship between two or more persons is indispensable, who present themselves as the two parties to a juridical relationship (e.g., adultery, bigamy, duel, incest, etc.); unilateral crimes, moreover, are called collective if for the notion of the crime the intervention of several persons with associated action for the attainment of a common end is necessary (e.g., conspiracy); see also COOPERAZIONE NEL DELITTO; k) prosecutable ex officio or on complaint of a party: those crimes are said to be punishable on complaint of a party (in canon law, insult and defamation, and not even always: v. INGIURIA E DIFFAMAZIONE, QUERELA) which the law establishes as not punishable if the person offended by the crime does not seek the punishment of the guilty party.

For the notion of continuing crime, v. CONCORSO DI REATI E DI PENE.

III. SUBJECTS OF CRIME

In a crime a distinction is made between active subjects and passive subjects.

The active subjects of a crime are those who commit or concur in committing the act that constitutes the crime, and therefore both the perpetrator of the crime and the accomplices.

The active subject of a crime, according to the conception prevailing today (but in canon law not without controversy), can only be a physical person (a man), not a juridical person: indeed in canon law only the baptized (Catholic or not) are subject to penal laws (or precepts), given that the non-baptized are not subject to the jurisdiction of the Church; and the supreme pontiff cannot be an active subject of a crime, since the penalties established by himself or by a subordinate of his cannot be applied to him.

Not all crimes, however, can be committed by anyone (or, in canon law, by any baptized person: common crimes). Many acts constitute a crime only if the active subject has or does not have certain factual or juridical qualities (particular crime); thus for certain crimes it is necessary that the perpetrator be - a cleric (cc. 2340 § 2, 2379, 2396, 2400), - a priest (cc. 2321, 2365, 2366, 2376, 2377), - a cleric in sacred orders (cc. 2359 § 1, 2378, 2399), - a bishop (cc. 2370, 2398), - a cardinal (c. 2397), - a cleric and religious together (c. 2387), - a cleric or religious (c. 2380), - a religious (cc. 2385, 2386, 2389), - a nun (c. 2342, no. 3), - a Catholic (c. 2375), - a married person (c. 2356), - one who holds certain offices (cc. 2337, 2381, 2382, 2383, 2384, 2391 § 2, 2393, 2401, 2402, 2403, 2404, 2406, 2408-2424), - or conversely that he not be a priest (c. 2322), etc.

Furthermore, cardinals are not subject to the penal law unless they are expressly mentioned in it (c. 2227 § 2; cf. cc. 2332 and 2397); and certain penalties are not applicable to bishops, to sovereigns and to their children (c. 2227; cf. c. 1557 § 1).

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

Just as in the criminal law of the State, besides the particular passive subjects of individual crimes, the State itself is the passive subject of every crime, so in canon law the Church is the constant passive subject of every crime, although in a great many crimes there are besides 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 a crime to be punishable, it is also necessary that he have the capacity (v.) of criminal law, which exists only if he is capable of understanding and willing.

The age or the mental state of the perpetrator of the crime can exclude or attenuate his capacity to commit the crime, or (in the case of transient mental states) exclude or attenuate only his imputability.

On account of age, infants, that is, those who have not completed their seventh year, are considered wholly incapable of crime; while those who, although having passed that age, are not yet of full age (that is, have not completed their twenty-first year), are presumed, unless the contrary is established, to have an attenuated capacity (c. 2204), and indeed, if they are impuberes (that is, have not completed their fourteenth year if male, their twelfth year if female), educational punishments rather than true and proper penalties are to be applied to them (c. 2230).

On account of mental state, those who at the time of the crime are deprived of the use of reason are criminally incapable (c. 2201 § 1); and those who are afflicted by a mental infirmity that deprives them of the use of reason are presumed, until proof to the contrary, to be incapable, even if they have so-called lucid intervals or intermissions (c. 2201 § 2). Those, on the other hand, who through mental infirmity have a weakened use of reason have an attenuated capacity (c. 2201 § 4).

For disturbances of the intellect and will arising from drunkenness, a distinction must be made: a) if the drunkenness was brought about by the subject himself for the purpose of committing the crime or of preparing a justification for himself, it neither removes nor attenuates capacity and therefore imputability; b) in the other cases of voluntary drunkenness, imputability is attenuated, to a greater or lesser degree, according as it has wholly removed or merely diminished the capacity of understanding and willing; c) if finally the drunkenness is involuntary, it is treated as a mental infirmity (c. 2201 §§ 3-4). The same norms hold for the other similar disturbances of the intellect or will, such as those arising from the use of narcotic substances (c. 2201 § 4).

The active subject, even if capable, is not punishable if he is not also imputable.

Imputability, which is the subjective element of the crime, supposes not only that the action was performed with consciousness and will (and therefore that the agent has the capacity of understanding and willing), but also supposes the dolus and the culpa of the agent (exceptionally, but not in canon law, the law can hold responsible for a crime even one who has neither culpa nor dolus, and in that case one speaks of objective responsibility).

The dolus (v.), which the CIC defines as «deliberata voluntas violandi legem» (c. 2206 § 1), is, in criminal law, the consciousness and will to perform the action forbidden by the penal law and to cause the harmful or dangerous event in which the crime consists; but in canon criminal law, for the existence of dolus, the consciousness and will to violate the law are furthermore required. In canon law, for the purposes of the application of penalties in the external forum, dolus is presumed, until proof to the contrary, when there has been a violation of the penal law or precept (c. 2200 § 2).

Culpa (v.) in criminal law exists when the harmful or dangerous event in which the crime consists, even if foreseen (culpa with foresight), is not willed by the agent, but occurs because of his negligence or imprudence or lack of skill. Culpa with foresight is the graver species of culpa (the CIC calls it close to dolus, c. 2203 § 1), but it remains nonetheless culpa and does not thereby become dolus.

Contrary to the system followed by the penal codes of States, the CIC in general establishes the punishability of every crime both on the ground of dolus (dolose crime) and on the ground of culpa (culpable crime); that is, if the crime is dolose, the penalties provided for it by the law will be applicable; if instead it is only culpable, a lighter penalty will normally be applied (cf. c. 2203 § 1), unless the penalty provided is latae sententiae and the criminal activity is, despite the absence of dolus, gravely culpable (c. 2229 § 3, no. 2).

The subjective element, and therefore the crime, is lacking if the act occurs neither through dolus nor through culpa of the agent, but: - a) through fortuitous event (v.) or through force majeure (v.; c. 2203 § 2), among which is also included physical violence (vis absoluta) suffered through the action of another (c. 2205 § 1); b) through ignorance, error, or inadvertence, which have as their object either the act or the juridical norm that forbids it, provided however that such ignorance, error or inadvertence does not depend on the culpa of the subject; if instead it depends on culpa, the crime is considered culpable (c. 2202). Note further that if the offender knows the prohibition laid down by the law, but is ignorant only that a penalty is provided for the transgressor, the crime remains dolose, and such ignorance constitutes only an attenuating circumstance (c. 2202 § 2).

IV. THE CIRCUMSTANCES OF THE OFFENSE

The various modalities that, while the constitutive elements of the offense remain fixed, accompany them in the concrete case, without causing the species of the offense itself to change, are called circumstances of the offense.

Some of these circumstances are such that they render the offense more grave (aggravating circumstances) or conversely more light (attenuating circumstances), or that they exclude it entirely or at least exclude the penal responsibility of the subject (excluding and exempting circumstances).

Sometimes the law takes into consideration some of these circumstances relative to the individual figures of offense in order to establish that the penalty provided for the offense must be aggravated or attenuated or excluded if the circumstance that the law itself indicates occurs (special [attenuating, aggravating or exempting] circumstances). There are then circumstances considered by the law in a general way for every offense (general [attenuating, aggravating, or exempting] circumstances), which, therefore, in whatever offense they occur, produce the attenuating, or aggravating, or exempting effect.

In the CIC the following are considered among the general circumstances, besides those already seen above, which exclude or attenuate penal capacity or imputability:

1) aggravating circumstances: a) passion (v.), which has been voluntarily provoked or cultivated (can. 2206); b) the delinquent, or the person against whom the offense is committed, being invested with dignity (ecclesiastical or civil: can. 2207, n. 1); c) having committed the offense with abuse of authority or of office (can. 2207, n. 2); d) recidivism (can. 2208, and v. RECIDIVA);

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

3) excluding or exempting circumstances: a) grave fear, grave inconvenience or the state of necessity (v.), outside the cases mentioned under letter a) of the preceding number (can. 2205 § 2); b) legitimate defense (can. 2205 § 4; and v. DIFESA LEGITTIMA); c) passion (v.), which, not having been voluntarily provoked or cultivated, entirely impedes any capacity of the will (can. 2206); d) having acted in fulfillment of an obligation imposed by a norm of law or by a legitimate command of authority; e) having acted with the consent of the person who is injured by the offense, provided that the act is such that it is no longer licit if it is committed with the consent of such person.

V. ACTIONS ARISING FROM THE OFFENSE

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

The penal action, which in the CIC is however more often called criminal action, is that judicial action which in the Church belongs to the promoter of justice (v.; in the State it belongs to the public prosecutor), and is directed to obtaining from the judge the condemnation of the guilty to a penalty ferendae sententiae, or the declaration that they have incurred some penalty latae sententiae (can. 2210 § 1, no. 1).

The civil or contentious action, on the other hand, belongs to those who have been harmed by the offense, and is directed to obtaining that those guilty of the offense be condemned to make reparation for the damages caused (can. 2210 § 1, no. 2); indeed, all those who have taken part in the offense are obliged to make reparation for such damages, and the obligation is joint and several between the perpetrator of the offense and the principal accomplices, while secondary accomplices may even be condemned to make reparation for only a part of the damage (can. 2211).

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

The two actions, although both arise from the offense, nevertheless have a life largely independent of each other, given their different nature. Above all, their extinction is brought about by different causes. Thus, while the penal action is extinguished by the death of the accused, the civil action can be exercised even against his heirs, the obligation he had to make reparation for the damage being transmitted to them.

Prescription (v.) extinguishes the one and the other action at different times.

The injured party's renunciation of reparation for the damage prevents the civil action from being begun or continued, but has of itself no effect on the penal action, which cannot be renounced.

Conversely, judicial reproof (v.) extinguishes the penal action, but does not prevent the injured party from bringing or continuing the civil action. And the same must be said of the case in which the competent authority pardons the penalty (cf. can. 1702) or in which the judge, availing himself of the discretion granted by law, considers that he must refrain from inflicting on the guilty party a penalty ferendae sententiae or from declaring that he has incurred a penalty latae sententiae (cf. can. 2223).

Even less, then, do those acts affect the fate of the civil action by which the penal action is neither extinguished nor its course changed, but only the penalty already inflicted or declared is extinguished: such are absolution from a censure, dispensation from a vindictive penalty, conditional suspension of the penalty (can. 2288), etc.

VI. THE INDIVIDUAL CRIME

In the penal codes of states, the norms that provide penalties for individual crimes are generally grouped according to the good or interest protected by those norms, that is, according to the good or interest harmed or endangered by the crimes.

The CIC, in part 3 of book V (cann. 2314-2414), follows a classification based in large part on that criterion, from which, however, it sometimes departs.

Since it is not possible here to enumerate the individual criminal figures (for many of which there are 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 crimes; for each title we indicate some examples of the more notable crimes included in it: 1) crimes against the faith and the unity of the Church (heresy, apostasy, schism, publishing, reading or possessing prohibited books, violation of the norms on mixed marriages); 2) crimes against religion (blasphemy, perjury, superstition, sacrilege, falsification of relics, trafficking in indulgences, violation of a church, of a cemetery, of a tomb, or of a corpse); 3) crimes 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 goods; v. also AUTORITÀ ECCLESIASTICHE, delitti contro le); 4) crimes against life, liberty, property, good reputation, good morals (abortion, dueling, abduction, homicide, reduction to slavery, usury, robbery, grievous injury, insult and defamation, bigamy, bestiality, sodomy, rape, procuring, adultery, concubinage, incest); 5) crimes of falsity (forgery of documents, calumny); 6) crimes committed in administering or receiving the Sacraments (solicitation, violation of the sacramental seal, celebration of a mixed marriage without dispensation); 7) crimes against the obligations proper to the ecclesiastical or religious state (failure to wear the ecclesiastical habit and the tonsure, 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) crimes committed in conferring, assuming or resigning ecclesiastical offices (simony, usurpation of office); 9) abuse of power or of ecclesiastical office (generic abuse, falsification of diocesan or parish registers).

There is also given, by way of example, the list of the titles of book II of the Italian penal code, which among penal codes is one of the most perfect also as regards the classification of crimes: 1) crimes against the personality of the State; 2) crimes against the public administration; 3) crimes against the administration of justice; 4) crimes against religious sentiment and against the piety of the dead; 5) crimes against public order; 6) crimes against public safety; 7) crimes against public faith; 8) crimes against the public economy, industry and commerce; 9) crimes against public morality and good morals; 10) crimes against the integrity and health of the race; 11) crimes against the family; 12) crimes against the person; 13) crimes against property.

Pio Ciprotti