Penal Remedy

PENAL REMEDY. - By p. r. is meant all those means that the competent ecclesiastical authority uses for the purpose of preventing a crime, into which the faithful, clerics or laypersons, find themselves in proximate danger of falling (can. 2307), or of supplying for a criminal trial that would otherwise have to be conducted against them (cann. 1947, 2309 §§ 3-4), or of making more burdensome a penalty inflicted on one who has already committed the crime, especially if the offender is a recidivist (cann. 2309 § 4, 2311 § 2).

I. NOTIONS

The CIC does not give a definition of r. p. in general, but, after enumerating four different kinds of it in can. 2306, it goes on to describe the elements of the individual r. p. in cann. 2307-11. From these elements and from the jurisprudence prior and subsequent to the CIC itself, one deduces with relative certainty what is to be understood by this term. And first of all, it is unanimously admitted that the r. p. is not at all an ecclesiastical penalty in the strict sense, neither medicinal nor vindictive, although it seems to have and in fact does have certain similarities with it; nor, on the other hand, is the r. p. a simple penance, although it also has certain elements in common with this. In fact the r. p. neither presupposes nor punishes a true and proper crime as the penalty does (can. 2215), nor does it serve, at least of itself, for the purpose of causing the delinquent to avoid the true and proper penalty or of substituting for a penalty that has been absolved or dispensed, as penance does (can. 2312 § 1). In the second place, jurisprudence without any exception whatsoever admits that the r. p., although it is neither a penalty nor a penance, contains in every case a penality or rather imports the sense of a generic punishment; hence the attribute of penal that is joined to remedy. This sense of penality, which the r. p. contains, is due to the fact that it in every case entails, in the person who is subjected to it, the loss or at least the diminution of reputation among others and the intervention of the competent authority following upon the moral fault of the subject to whom it is applied. In fact the r. p. presupposes either a transgression of the law, possibly even a grave one, which nevertheless, through the defect of one element or another, does not come to form a crime in the full juridical sense; or else, and this is the minimum, it presupposes in the subject an objective condition such that it is immediately close to crime or ordinarily impels and leads to crime. In the first case the r. p. has the purpose of not leaving the shortcoming completely neglected, even if it is not a true crime; in the second it has the aim of preventing the occasion or the danger of the crime itself. However, the r. p. can also be applied for the purpose of eliminating the suspicion of crime, especially if it is joined to actual scandal for the other faithful. The example, traditional among canonists, is that of the cleric or religious who frequently visits persons of the opposite sex, provoking suspicions or occasion of scandal in act among the faithful; the suspicions and the occasion of scandal are cut off by means of the r. p. by the competent authority.

II. VARIOUS KINDS OF PENAL REMEDY AND THEIR APPLICATION

Already in the period preceding the CIC various r. p. were known. Of these the Council of Trent had already spoken expressly in those years (sess. XIII, cap. 1, de ref.), in the invitation addressed to the local Ordinaries to keep their subjects away from crimes by means of admonitions, that is, of particular warnings. And more recently, the Sacred Congregation of Bishops and Regulars had addressed the invitation to those same Ordinaries to use canonical remedies toward their respective clerics, their subjects. Nevertheless, until the CIC there was no agreement on the name and the number of the r. p. The CIC, on the other hand, at can. 2306 expressly names four different kinds of r. p., namely admonition, correction, precept, vigilance. Each of them has a specific purpose, although generally all are directed at preventing a crime or at checking some fault. For this reason many canonists also call them remedies or preventive measures. It is still disputed today whether the enumeration of the CIC is, as they say, exhaustive, that is, constitutive of the only and sole r. p. that the CIC itself wishes to recognize in current legislation; or whether it is merely exemplary, so that others may be added, at the discretion of the Ordinaries. In reality, apart from a few who follow this latter opinion, the majority holds that the r. p. enumerated in the CIC at can. 2306 are the only ones juridically existing for legal effects. 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 and these from penalties in the strict sense or from simple penances. This must be taken into account in the study of writers preceding the CIC. Today these uncertainties are entirely eliminated; and therefore no confusion is possible, although, as sometimes happens, a member of the faithful may at the same time be subject to an ecclesiastical penalty in the strict sense, to penances and to r. p.

Coming now to the individual r. p.: 1) the first is admonition (v.). 2) Next is correction, which is defined as a disapproval made by the bishop to a member of the faithful whose conduct leaves much to be desired, on account of a scandal or a serious disorder that has occurred. It differs from admonition in the fact that correction presupposes the social order already compromised or the scandal already caused. It is therefore certainly more serious than admonition, because the latter can be motivated by a mere suspicion, whereas correction is given for more serious faults, such as bigamy or concubinage, caused by theological ignorance or inveterate laziness. Like admonition, correction can be secret or public. The latter must be used only if the guilty party is a confessed offender of his crime 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 the correction is inflicted before a criminal trial, then it takes on a judicial character and as such sometimes serves to replace a penalty properly so called or to make the sanction more severe (can. 2309 §§ 3-4). It must be carried out according to determined rules set forth in cann. 1947-53.

3) The precept can be considered here as a kind of admonition, but this admonition carries with it the threat of an established penalty. The precept must indicate to the subject a precise act to be done or to be avoided (can. 2310). It therefore constitutes, in reality, an r. p. more serious than the preceding ones. It has somewhat the value of a condemnatory sentence with a suspensive condition (can. 2310). As a general rule the two preceding remedies must be used before arriving at the 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 easily be presumed. Moreover, before inflicting it, sufficient proofs must be gathered to establish the seriousness of the scandal given, of the proximate occasion of the crime, or the existence of a very serious social disorder (cf. can. 2307). As for the procedure for imposing a precept, the CIC does not suggest any. It will have to be identical to that of correction or to the method followed in analogous cases.

4) Vigilance is a completely new r. p., as the authors say. The CIC treats of it at can. 2311 and gives to understand that it must not be used frequently. It is the most severe of the remedies set forth and the most difficult to put into practice. Recourse must be had to it especially when dealing with recidivists; and by this means a relapse is to be prevented and thus a new sanction is added to a guilt already punished. This remedy entails, according to the cases, a restriction of liberty, the order to live in the company of a prudent person or not to absent oneself without permission.

Since these are juridical institutions, in the application of the r. p. it is indispensable to use that procedure which the CIC has specifically determined for the individual cases, without exchanging one for another. The Ordinaries and the other competent Superiors who may be involved can indeed proceed in every case paterno modo and by every means not contrary to law, with the aim of eliminating in their subjects the danger of crime or of repressing a fault. But if they intend to obtain the specific effects of the r. p., they must observe the relative formalities established by the CIC. If the required formalities have not been observed, any further juridical proceeding that depended on the r. p. would be null.

III. CESSATION OF PENAL REMEDY

By the nature of things the first two r. p., namely the admonition and the correction, consisting as they do in transient acts, cease immediately upon their application. The precept, on the other hand, although strictly speaking it does not cease of itself, can nonetheless at a given moment be suspended or definitively removed, as regards what it contains of imposition and of the obligatory observances established by it. Vigilance, finally, being by its nature extended over time, ceases with the passing of the time for which it was established or by the free determination of the competent ecclesiastical superior; nevertheless, in this regard it must be remembered that the faithful or the cleric subjected to vigilance remains bound by it, even if in the meantime he has removed the causes that gave rise to it, until the superior has effectively removed it; which holds analogously for what has been said of the precept.

Lorenzo Simeone