PENAL REMEDY. – Penal remedies are understood to mean all those means employed by the competent ecclesiastical authority for the purpose of preventing an offense into which the faithful, whether clerics or laypersons, are in imminent danger of falling (can. 2307), or of replacing a criminal trial that would otherwise have to be conducted against them (cann. 1947, 2309 §§ 3–4), or of making a penalty imposed upon one who has already committed the offense more burdensome, especially if the offender is a repeat offender (cann. 2309 § 4, 2311 § 2).
I. NOTIONS
The CIC does not provide a definition of the penal remedy in general, but, after enumerating four different kinds thereof in can. 2306, proceeds to describe the elements of the individual penal remedies in cann. 2307–11. From these elements and from the jurisprudence preceding and following the CIC itself, one can deduce with relative certainty what is to be understood by this term. First of all, it is unanimously admitted that the penal remedy is in no way an ecclesiastical penalty in the strict sense,neither medicinal nor vindictive, although it appears to have, and in fact does have, certain similarities with one; nor, on the other hand, is the penal remedy a simple penance, although it likewise has certain elements in common with II. Indeed, the penal remedy neither presupposes nor punishes a genuine offense, as a penalty does instead (can. 2215), nor does it serve, at least in itself, to cause the offender to avoid the genuine penalty or to take the place of a penalty that has been served or dispensed, as penance does (can. 2312 § 1). Secondly, jurisprudence without exception admits that the penal remedy, although it is neither a penalty nor a penance, nevertheless contains in every case a penal character, or rather implies the sense of a general punishment; hence the attribute “penal” attached to “remedy.” This penal character contained in the penal remedy is due to the fact that in every case it entails, for the person subjected to it, the loss, or at least the diminution, of reputation in the eyes of others, and the intervention of the competent authority as a consequence of the subject’s moral fault, to whom it is applied. Indeed, the penal remedy presupposes either a transgression of the law, possibly even a grave one, which nevertheless, owing to the absence of one element or another, does not amount to an offense in the full juridical sense; or—and this is the minimum—it presupposes in the subject an objective condition that is immediately proximate to an offense or ordinarily drives and leads to an offense. In the first case, the penal remedy is intended to ensure that the fault is not completely disregarded, even though it is not a genuine offense; in the second, it is intended to prevent the occasion or danger of the offense itself. The penal remedy may also, however, be applied for the purpose of removing suspicion of an offense, especially when this is accompanied by an actual cause of scandal among the other faithful. Canonists traditionally give the example of a cleric or religious who frequently visits persons of the opposite sex, thereby provoking suspicion or an actual occasion of scandal among the faithful; the suspicions and the occasion of scandal are brought to an end through penal remedies imposed by the competent authority.
II. VARIOUS KINDS OF R. P. AND THEIR APPLICATION. — Various r. p. were already known in the period preceding the CIC. The Council of Trent had already expressly spoken of them in those years (sess. XIII, cap. 1, de ref.), in its invitation to the Ordinaries of the places to keep their subjects away from crimes by means of admonitions, that is, particular warnings. More recently, the S. Congr. of Bishops and Regulars had invited the same Ordinaries to use canonical remedies toward their respective clerics, their subjects. Nevertheless, until the CIC there had been no agreement concerning either the name or the number of the r. p. The CIC, however, in can. 2306 expressly names four different kinds of r. p., namely, admonition, correction, precept, and vigilance. Each has a specific purpose, although in general all are directed toward preventing a crime or curbing some offense. For this reason many canonists also call them remedies or preventive measures. It is still disputed today whether the enumeration in the CIC is, as they say, exhaustive, that is, constitutive of the sole and only r. p. that the CIC itself wishes to recognize in the current legislation; or whether it is merely illustrative, so that others may be added at the discretion of the Ordinaries. In reality, apart from the few who follow the latter opinion, the majority holds that the r. p. enumerated in the CIC in can. 2306 are the only ones juridically existing for legal purposes. In this regard, it is also well to bear in mind that in the legislation preceding the CIC jurisprudence was not always unanimous in distinguishing the r. p. from one another, or in distinguishing them from penalties in the strict sense or from simple penances. This must be taken into account in studying writers who preceded the CIC. Today these uncertainties have been entirely eliminated; and therefore no confusion is possible, although, as sometimes happens, the faithful person may simultaneously be subjected to an ecclesiastical penalty in the strict sense, to penances, and to r. p.
Turning now to the individual r. p.: 1) the first is admonition (v.). 2) Next comes correction, which is defined as a disapproval expressed by the bishop toward a member of the faithful whose conduct is seriously deficient because of a scandal or grave disorder that has occurred. It differs from admonition in that correction presupposes that the social order has already been compromised or that the scandal has already been caused. It is therefore certainly more serious than admonition, since the latter may be prompted by a mere suspicion, whereas correction is given for more serious offenses, such as bigamy or concubinage, arising from theological ignorance or inveterate laziness. Like admonition, correction may be secret or public. The latter should be used only if the guilty party has confessed to the offense or at least has been convicted of it (can. 2309 § 3). The prescribed method of application is the same as that of admonition, with the following difference: if correction is imposed before a criminal trial, it then assumes a judicial character and as such sometimes serves to replace a proper penalty or to make the sanction more severe (can. 2309 §§ 3-4). It must be carried out according to the specific rules set forth in cann. 1947-53.
3) The precept may here be regarded as a kind of admonition, but this admonition entails the threat of a specified penalty. The precept must indicate to the subject a precise act to be performed or avoided (can. 2310). It thus constitutes, in reality, an r. p. more serious than those preceding II. It has somewhat the force of a condemnatory sentence with a suspensive condition (can. 2310). As a general rule, the two preceding remedies should be used before resorting to a precept, because the CIC permits recourse to it only when admonitions and corrections have been employed in vain or their ineffectiveness is foreseen. This second point must not be presumed lightly. Moreover, before imposing it, sufficient evidence must be gathered to establish the gravity of the scandal caused, the proximate occasion of the crime, or the existence of a particularly grave social disorder (cf. can. 2307). As for the procedure for imposing a precept, the CIC prescribes none. It should be identical to that of correction or to the method followed in analogous cases.
4) Vigilance is an entirely new r. p., as the authors say. The CIC treats of it in can. 2311 and implies that it should not be frequently employed. It is the most severe of the remedies listed and the most difficult to put into practice. It should be resorted to especially in the case of recidivists; by this means a relapse is to be prevented, and thus a new sanction is added to an already punished culpability. Depending on the circumstances, this remedy entails a restriction of liberty, an order to live in the company of a prudent person, or an order not to leave without permission.
Since these are juridical institutions, in applying the r. p. it is indispensable to use the procedure that the CIC has specifically determined for the individual cases, without confusing one with another. The Ordinaries and any other competent Superiors may indeed proceed in every case paterno modo and by every means not contrary to the law, with the aim of removing from their subjects the danger of crime or repressing an offense. But if they intend to obtain the specific effects of the r. p., they must observe the corresponding formalities established by the CIC. If the required formalities have not been observed, any subsequent juridical procedure dependent upon the r. p. would be null.
III. CESSATION OF PENAL REMEDIES
By their very nature, the first two penal remedies, namely admonition and correction, consisting as they do in transitory acts, cease immediately upon their application. The precept, on the other hand, although strictly speaking it does not cease of itself, may nevertheless, at a given moment, be suspended or definitively eliminated insofar as it contains an imposition and obligatory observances established by II. Supervision, finally, since by its nature it is prolonged over time, ceases when the period for which it was established has elapsed or by free decision of the competent ecclesiastical superior; nevertheless, in this regard it should be remembered that the faithful person or cleric placed under supervision remains bound by it, even if in the meantime he has eliminated the causes that provoked it, until the superior has actually removed it; the same applies, analogously, to what has been said concerning the precept.