CRIME. —
I. GENERAL CONCEPTS
In canon law, crime is defined by the CIC: “an external and morally imputable violation of a law for which a canonical sanction, at least indeterminate, is established” (can. 2195 § 1).For a crime to exist, therefore, three elements common to all crimes are always necessary in canon law (as in state penal law), in addition to the specific elements required by law for each type of crime: a) the objective or material element, namely an external human act; b) the subjective or moral or psychological element, namely either intent or culpability; c) the juridical element, that is, the norm of law (v.) or a particular precept (v.) that imposes a penalty for the commission of the act.
The necessity of the juridical element (which is in reality more a presupposition than an element of the crime), now almost universally accepted, entered penal law especially in the 19th century, whereas previously any illicit external act that disturbed social order was considered punishable, even if no incriminating norm existed beforehand.
In canon law, the principle of the necessity of the juridical element (nullum crimen sine lege) was adopted only with the CIC, which, however, significantly attenuates it in practice due to the special requirements of safeguarding social order in the Church, given its supernatural end. Indeed, in addition to crimes specifically defined by ecclesiastical laws or precepts, general punishability is provided for any violation of law whenever punishment is necessary to prevent scandal or due to the particular gravity of the transgression (can. 2222 § 1).
In accordance with the system of the CIC, regarding the juridical element of crime, that is, laws and penal precepts, V. PENA. Here we limit ourselves to adding that the absence of this element means that the so-called putative crime is not punishable; this occurs when someone performs an act that is not considered a crime by any norm, while erroneously believing it to constitute a crime.
II. CLASSIFICATION OF CRIMES
Crimes are commonly classified according to various criteria, some of which are peculiar to canon law. The main classifications are:a) ecclesiastical, civil, or mixed crimes, depending on whether they are considered crimes only by Church law, only by state law, or by both; for the punishment of the latter two, the Church recognizes the competence of the state (for the latter in concurrence with that of the Church itself), except where the offender enjoys the privilege of the forum (v. PRIVILEGI DEI CHIERICI); and in mixed crimes, the Church generally does not punish the offender if he is a layperson and has already been or is expected to be punished by civil authority (can. 1553 § 1, 1933 § 3, 2223 § 3, n. 2);
As in state penal law, besides the particular passive subjects of individual crimes, the state itself is the passive subject of every crime; similarly, in canon law, the Church is the constant passive subject of every crime, although in most crimes there are also particular passive subjects (e.g., in insult, the one insulted is the passive subject; in solicitation, the one solicited; in homicide, the one killed, etc.).
For the active subject of a crime to be punishable, it is also necessary that he possess penal capacity (v.), which exists only if he is capable of understanding and willing.
The age or mental state of the perpetrator of the crime may exclude or mitigate his capacity to commit the crime, or (in cases of transient mental states) may exclude or mitigate only his imputability.
On account of age, infants, that is, those who have not completed seven years, are considered entirely incapable of committing a crime; whereas those who, though having passed this age, are still minors (i.e., have not completed twenty-one years), are presumed, unless the contrary is proven, to have diminished capacity (can. 2204), and indeed, if they are impubes (i.e., have not completed fourteen years if male, twelve years if female), educational punishments rather than true penalties should be applied to them (can. 2230).
On account of mental state, those who at the time of the crime are deprived of the use of reason are incapable of penal responsibility (can. 2201 § 1); and those afflicted with mental illness that deprives them of the use of reason are presumed incapable until proven otherwise, even if they experience so-called lucid intervals (can. 2201 § 2). Those who, due to mental illness, have a weakened use of reason have diminished capacity (can. 2201 § 4).
Regarding disturbances of intellect and will arising from drunkenness, a distinction must be made: a) if the drunkenness was caused by the subject himself with the intention of committing the crime or of providing himself with a justification, it neither removes nor diminishes capacity and thus imputability; b) in other cases of voluntary drunkenness, imputability is diminished to a greater or lesser extent depending on whether it has entirely removed or merely diminished the capacity to understand and will; c) if, finally, the drunkenness is involuntary, it is treated like a mental illness (can. 2201 § 3-4). The same norms apply to other similar disturbances of intellect or will, such as those arising from the use of narcotic substances (can. 2201 § 4).
The active subject, even if capable, is not punishable unless he is also imputable.
Imputability, which is the subjective element of crime, presupposes not only that the act was committed with knowledge and will (and thus that the agent possessed the capacity to understand and will), but also presupposes the intent or culpability of the agent (exceptionally, though not in canon law, the law may hold someone responsible for a crime even without intent or culpability, in which case one speaks of objective responsibility).
Intent (v.), which the CIC defines as “the deliberate will to violate the law” (can. 2206 § 1), in penal law is the knowledge and will to perform the act forbidden by the penal law and to cause the harmful or dangerous event that constitutes the crime; but in canon penal law, for intent to exist, knowledge and will to violate the law are also required. In canon law, for the application of penalties in the external forum, intent is presumed until proven otherwise when there has been a violation of the law or penal precept (can. 2206 § 2).
Culpability (v.) in penal law occurs when the harmful or dangerous event that constitutes the crime, even if foreseen (culpability with foresight), is not willed by the agent but occurs due to his negligence, imprudence, or lack of skill. Culpability with foresight is the most serious type of culpability (the CIC calls it proximate to intent, can. 2203 § 1), but it remains culpability and does not thereby become intent.
Contrary to the system followed by state penal codes, the CIC generally establishes the punishability of every crime both as dolus (intentional crime) and as culpa (culpable crime); that is, if the crime is intentional, the penalties provided by law for it will be applied; if, however, it is merely culpable, a lighter penalty will normally be applied (cf. can. 2203 § 1), unless the penalty prescribed is a latae sententiae penalty and the delinquent activity, despite the absence of intent, is gravely culpable (can. 2229 § 3, n. 2).
The subjective element is lacking, and therefore the delict (v.) does not exist if the act is neither committed with dolus nor with culpa on the part of the agent, but rather: a) through casus fortuitus (v.) or vis maior (v. § 2), which includes physical violence (via absoluta) inflicted by another (can. 2205 § 1); b) through ignorance, error, or inadvertence concerning either the act itself or the juridical norm that forbids it, provided that such ignorance, error, or inadvertence does not arise from the culpa of the subject; if it does arise from culpa, the delict is considered to be committed with culpa (can. 2202). It should be noted further that if the delinquent knows the prohibition imposed by the law but merely ignores that a penalty is prescribed for the transgressor, the delict remains a dolose one, and such ignorance constitutes only an attenuating circumstance (can. 2202 § 2).
IV. THE CIRCUMSTANCES OF THE DELICT
The various modalities that, while leaving intact the constitutive elements of the delict, accompany it in the concrete case without altering its species are called circumstances of the delict.Some of these circumstances render the delict more serious (aggravating circumstances) or, conversely, less serious (attenuating circumstances), or else exclude it altogether or at least exclude the penal responsibility of the subject (discriminating and exculpating circumstances).
Sometimes the law takes certain of these circumstances into account in relation to individual types of delict in order to establish that the penalty prescribed for the delict must be aggravated or mitigated or excluded if the circumstance indicated by the law itself occurs (special [attenuating, aggravating, or exculpating] circumstances). There are also circumstances considered by the law in a general way for every delict (general [attenuating, aggravating, or exculpating] circumstances), which, therefore, whenever they occur in any delict, produce an attenuating, aggravating, or exculpating effect.
In the CIC, the following are considered among the general circumstances, in addition to those already seen above that exclude or attenuate penal capacity or imputability:
1) aggravating circumstances: a) passion (v.), if it has been voluntarily provoked or nurtured (can. 2206); b) the fact that the delinquent or the person against whom the delict is committed holds a dignity (ecclesiastical or civil: can. 2207, n. 1); c) the commission of the delict through abuse of authority or office (can. 2207, n. 2); d) recidivism (can. 2208; and V. RECIDIVA);
2) attenuating circumstances: a) grave fear, serious inconvenience, or state of necessity (v.), when the delict consists in an action that is illicit 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 to cause harm to souls (can. 2205 § 3); b) culpable excess in legitimate defense (can. 2205 § 4; and V. DIFESA LEGITTIMA); c) provocation, which occurs when the delict is committed in a state of anger caused by another’s injustice (can. 2205 § 4); d) passion (v.), if it has not been voluntarily provoked or nurtured and thus attenuates but does not entirely remove the capacity to will (can. 2206);
3) discriminating or exculpating circumstances: a) grave fear, serious inconvenience, or 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.), if it has not been voluntarily provoked or nurtured and thus entirely removes any capacity to will (can. 2206); d) acting in fulfillment of an obligation imposed by a legal norm or by a lawful command of authority; e) acting with the consent of the person harmed by the delict, provided that the act is of such a nature that it would not be licit if performed with such consent.
V. ACTIONS ARISING FROM THE DELICT
From the delict (whether consummated or merely attempted) there arise two kinds of actions (v.): the penal action and the civil action.The penal action, which in the CIC is more often called the criminal action, is the judicial action that, in the Church, pertains to the promotor of justice (v. in the State, it pertains to the public prosecutor) and is directed toward obtaining from the judge the condemnation of the guilty parties to a poena ferendae sententiae or a declaration that they have incurred some latae sententiae penalty (can. 2210 § 1, n. 1).
The civil or contentious action, on the other hand, pertains to those who have been harmed by the delict and is directed toward obtaining that the guilty parties of the delict be condemned to compensate for the damages caused (can. 2210 § 1, n. 2); all who have participated in the delict are indeed obligated to compensate for such damages, and the obligation is joint and several between the principal perpetrator and the principal accomplices, while secondary accomplices may be condemned to compensate for only part of the damage (can. 2211).
If the promotor of justice initiates the penal action, those who have been harmed by the delict may exercise the civil action in the same penal process, so that the same judge, with a single sentence, will rule on both actions (can. 2210 § 2).
Although both actions arise from the delict, they have, for the most part, an independent existence given their different nature. Above all, their extinction occurs for different causes. Thus, while the penal action is extinguished by the death of the guilty party, the civil action may be exercised even against his heirs, thereby transmitting to them the obligation that he had to compensate for the damage.
Prescription (v.) extinguishes the one and the other action after different periods of time.
The renunciation, on the part of the injured party, of compensation for the damage prevents the initiation or continuation of the civil action, but in itself has no effect on the penal action, which is irrenounceable.
Conversely, the judicial reproach (v.) extinguishes the penal action but does not prevent the injured party from initiating or continuing the civil action. The same must be said in the case in which the competent authority remits the penalty (cf. can. 1702) or in which the judge, exercising the discretion granted by the law, deems it appropriate to refrain from inflicting a poena ferendae sententiae or from declaring that the guilty party has incurred a latae sententiae penalty (cf. can. 2223).
Still less do those acts that do not extinguish the penal action nor alter its course, but merely extinguish a penalty already inflicted or declared, have any influence on the fate of the civil action: such are absolution from a censure, dispensation from a vindictive penalty, the suspension of a penalty subject to a condition (can. 2288), etc.
VI. INDIVIDUAL DELICTS
In the penal codes of States, the norms that prescribe penalties for individual delicts are generally grouped according to the good or interest protected by the norms themselves, that is, according to the good or interest injured or endangered by the delicts.The CIC, in the third part of Book V (cann. 2314–2414), follows a classification largely based on this criterion, though it sometimes departs from II.
Unable to enumerate here the individual figures in their entirety (for many of which there are separate entries), we provide a list of the various titles in Part 3, to show the system followed by the Code of Canon Law in the enumeration of delicts; for each title we indicate some examples of the most notable delicts included in it: 1) delicts against faith and the unity of the Church (heresy, apostasy, schism, publication, reading or possession of prohibited books, violation of norms on mixed marriages); 2) delicts against religion (blasphemy, perjury, superstition, sacrilege, falsification of relics, trafficking in indulgences, violation of a church, cemetery, tomb, or corpse); 3) delicts against ecclesiastical authorities, persons or things (violation of the privilege of the forum or of the canonical forum, or of enclosure, usurpation of ecclesiastical goods; V. also AUTORITÀ ECCLESIASTICHE, delitti contro le); 4) delicts against life, liberty, property, good name, and morals (abortion, dueling, kidnapping, homicide, reduction to slavery, usury, robbery, serious injury, insult and defamation, bigamy, bestiality, sodomy, rape, procuring, adultery, concubinage, incest); 5) delicts of falsification (forgery of documents, calumny); 6) delicts committed in administering or receiving sacraments (solicitation, violation of the sacramental seal, celebration of a mixed marriage without dispensation); 7) delicts against the obligations proper to the ecclesiastical or religious state (failure to wear ecclesiastical dress and tonsure, exercise of trade by a cleric, violation of the vow of chastity or the obligation of celibacy, transgression of the obligations proper to parish priests); 8) delicts committed in the conferral, assumption, or relinquishment of ecclesiastical offices (simony, usurpation of office); 9) abuse of ecclesiastical power or office (generic abuse, falsification of diocesan or parochial registers).
Also provided, by way of example, is the list of titles in Book II of the Italian Penal Code, which among penal codes is one of the most perfect even with regard to the classification of delicts: 1) delicts against the personality of the State; 2) delicts against public administration; 3) delicts against the administration of justice; 4) delicts against religious sentiment and the piety due to the dead; 5) delicts against public order; 6) delicts against public safety; 7) delicts against public faith; 8) delicts against public economy, industry, and commerce; 9) delicts against public morality and decency; 10) delicts against the integrity and health of the race; 11) delicts against the family; 12) delicts against the person; 13) delicts against property.