PENAL REMEDY. — By penal remedies (r. p.) are understood all those means which the competent ecclesiastical authority employs with a view to preventing a crime into which the faithful, whether clerics or laity, are in imminent danger of falling (can. 2307), or to supplement a criminal trial which would otherwise have to be brought against them (cann. 1947, 2309 §§ 3–4), or to render more severe a penalty already imposed upon one who has committed a crime, especially if the offender is a recidivist (cann. 2309 § 4, 2311 § 2).
I. Notions
The CIC does not provide a general definition of penal remedies, but after enumerating four distinct kinds at can. 2306, it proceeds to describe the elements of each penal remedy in cann. 2307–11. From these elements and from the jurisprudence both prior to and subsequent to the CIC, it is possible with relative certainty to deduce what is to be understood by this term. First of all, it is unanimously admitted that a penal remedy is not, in the strict sense, an ecclesiastical penalty—whether medicinal or vindictive—though it does indeed share certain similarities with penalties; nor, on the other hand, is a penal remedy a mere penance, although it does share some elements with penance. In fact, a penal remedy does not presuppose or punish an actual crime as a penalty does (can. 2215), nor does it, at least in itself, serve the purpose of enabling the offender to avoid the actual penalty or to substitute for a penalty remitted or dispensed, as penance does (can. 2312 § 1).Secondly, jurisprudence without exception admits that a penal remedy, although it is neither a penalty nor a penance, nevertheless always contains an element of penalty or, more precisely, implies a sense of generic punishment; hence the adjective “penal” attached to “remedy.” This sense of penalty inherent in the penal remedy arises from the fact that it always entails, for the person subjected to it, the loss or at least the diminution of reputation among others and the intervention of the competent authority on account of the subject’s moral fault. Indeed, a penal remedy presupposes either a transgression of the law, which may even be grave, yet for want of one or another element does not amount to a full juridical crime; or, at the very least, it presupposes in the subject an objective condition so proximate to crime or ordinarily leading to crime that it is immediately dangerous. In the first case, the purpose of the penal remedy is to ensure that the fault, even if not a full-fledged crime, is not left entirely unaddressed; in the second case, its aim is to prevent the occasion or danger of crime itself. A penal remedy may also be applied to remove the suspicion of crime, especially when joined to an actual scandal among the other faithful. Canonists traditionally cite the example of a cleric or religious who frequently visits persons of the opposite sex, thereby arousing suspicion or occasioning an actual scandal among the faithful; such suspicion and occasion for scandal are removed by the competent authority through the use of a penal remedy.
II. VARIOUS KINDS OF PENAL REMEDIES AND THEIR APPLICATION
Even before the CIC, various penal remedies were known. Indeed, the Council of Trent had already expressly mentioned them (sess. XIII, cap. 1, de ref.), urging local Ordinaries to keep their subjects from crime by means of admonitions, that is, particular warnings. More recently, the Sacred Congregation of Bishops and Regulars had likewise urged Ordinaries to apply canonical remedies to their clerical subjects. Until the promulgation of the CIC, however, there was no agreement either on the name or on the number of penal remedies. The CIC, by contrast, explicitly names four distinct kinds of penal remedies at can. 2306: admonition, correction, precept, and vigilance. Each has a specific purpose, though generally all are directed toward preventing crime or checking some fault. For this reason, many canonists also call them preventive remedies or measures. There is still debate over whether the enumeration in the CIC is exhaustive—that is, whether it constitutes the only and exclusive list of penal remedies recognized in current legislation—or merely exemplary, so that others might be added at the discretion of Ordinaries. In reality, apart from a few who hold the latter opinion, the majority maintains that the penal remedies listed in the CIC at can. 2306 are the only ones legally recognized for juridical purposes. In this connection, it should be noted that prior to the CIC, jurisprudence was not always unanimous in distinguishing penal remedies from one another or from penalties in the strict sense or from mere penances. This must be borne in mind when studying the writings of pre-CIC authors. Today, however, these uncertainties have been entirely dispelled; hence no confusion is possible, although—as sometimes happens—a faithful person may be subjected simultaneously to an ecclesiastical penalty in the strict sense, to penances, and to penal remedies.Turning now to the individual penal remedies:
1) The first is admonition (v.).
2) Next comes correction, which may be defined as a formal disapproval issued by a bishop against a faithful whose conduct gives serious cause for concern on account of scandal or grave disorder. Correction differs from admonition in that it presupposes that social order has already been compromised or that scandal has already been caused. It is therefore certainly more serious than admonition, since the latter may be motivated by mere suspicion, whereas correction is imposed for graver faults such as bigamy or concubinage, whether arising from theological ignorance or inveterate sloth. Like admonition, correction may be either secret or public; the latter is to be used only if the offender has confessed the crime or has been duly convicted (can. 2309 § 3). The method of application is the same as for admonition, with the following difference: if correction is imposed prior to a criminal trial, it assumes a judicial character and may at times serve to replace a primary penalty or to render the sanction more severe (cann. 2309 §§ 3–4). It must be carried out according to the rules laid down in cann. 1947–53.
3) The precept may be regarded here as a kind of admonition, but one that includes 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, a more severe penal remedy than the preceding ones. It has something of the value of a condemnatory sentence with a suspensive condition (can. 2310). As a general rule, the two preceding remedies should be employed before resorting to a precept, since the CIC permits recourse to the latter only when admonitions and corrections have been tried in vain or when their inefficacy can be foreseen. This latter point must not be presumed lightly. Moreover, before imposing a precept, sufficient evidence must be gathered to establish the gravity of the scandal given, the proximate occasion of crime, or the existence of a very grave social disorder (cf. can. 2307). As for the procedure for imposing a precept, the CIC offers no guidance; it should be identical to that used for correction or to the method followed in analogous cases.
4) Vigilance is a completely new judicial remedy (r. p.), as the authors state. The Code of Canon Law (CIC) treats it in canon 2311 and implies that it should not be frequently employed. It is the most severe of the remedies set forth and the most difficult to put into practice. It should be resorted to especially when dealing with recidivists; by this means, one seeks to prevent a relapse and adds a new sanction to a fault already punished. This remedy entails, depending on the case, a restriction of freedom, an order to live in the company of a prudent person, or not to leave without permission. Since these are juridical institutions, in the application of the judicial remedies (r. p.) it is indispensable to use the procedure that the CIC has specifically determined for each case, without confusing one with another. Ordinaries and other competent superiors may indeed proceed in every case in a paternal manner and by any means not contrary to the law, with the aim of eliminating in their subjects the danger of crime or suppressing a fault. But if they intend to obtain the specific effects of the judicial remedy (r. p.), they must observe the formalities established by the CIC. If the required formalities have not been observed, any further juridical proceeding dependent on the judicial remedies (r. p.) would be null.
III. CESSATION OF THE JUDICIAL REMEDIES (R. P.) — By their very nature, the first two judicial remedies, namely admonition and correction, being transient acts, cease immediately with their application. The precept, however, although strictly speaking does not cease of itself, can at a certain point be suspended or definitively removed, insofar as it contains obligations and impositions established by II. Vigilance, finally, being by its nature prolonged over time, ceases with the passage of time for which it was established or by the free determination of the competent ecclesiastical superior; however, on this point it should be noted that the faithful or cleric subjected to vigilance remains bound by it, even if in the meantime he has removed the causes that provoked it, until the superior has actually removed it; which likewise applies to what has been said regarding the precept.