Solicitation

SOLICITATION. - In its generic meaning, in the ethical field, it is synonymous with seduction (v.) or with instigation (v.), for which the principles of cooperation (v.) in evil apply. In a specific sense, in moral theology and canon law, it is the abuse of the sacrament of Penance, which occurs when the priest confessor provokes the penitent to grave sin against chastity (v.).

The holiness of the sacrament of Penance demands profound respect; for this reason the Church has issued a long series of severe provisions aimed at regulating its proper conduct and at preventing abuses on the part of both the minister and the penitent. Among the other possible dangers there is that: 1) on the part of the priest confessor, of gravely abusing his own authority, transforming the Sacrament into an instrument of perdition, especially in matters of chastity; 2) on the part of the penitent, of abusing the sacramental seal, in order to bring against the priest confessor, through ignorance or through malice, one of the gravest calumnies, that of the abuse of the Sacrament, in matters of chastity. Such abuses constitute most grave sins against religion, chastity, etc., and in canon law they are also specific crimes: the crime of solicitation and the crime of false denunciation for solicitation.

I. HISTORICAL NOTES

The Church has issued many laws against solicitation; the first of which there is record is from the Council of Trier of 1221 (cap. 8). On April 16, 1561, Pius IV (const. Cum sicut) ordered the general inquisition of Spain to investigate those who provoke ad turpia in actu sacramentali. Paul V extended this discipline to Portugal (1608) and perfected it (November 16, 1612). On August 30, 1622, Gregory XV issued the bull Universi, in which he ordered that soliciting priests be punished and denounced (P. Gasparri, CIC, Fontes, n. 734). This was the first law on the matter that had binding force for the whole Church. The Congregation of the Holy Office also intervened several times (see especially the replies of February 11, 1661 and the Instruction to Bishops of February 9, 1867). Alexander VII condemned (September 24, 1667) two propositions relating to this matter (prop. 6-7: Denz-U, 1106-1107). The entire doctrine and scope of solicitation were then determined by the const. Sacramentum Poenitentiae of Benedict XIV (June 1, 1741: CIC, Appendix, doc. V), which remains relevant even today (can. 904). With the subsequent const. Etui pastoralis (March 26, 1742, § 9, n. 5) he declared that the laws relating to this matter also bound Orientals. The penalties imposed against solicitors were also preserved in the const. of Pius IX Apostolicae Sedis, § 4, n. 4 (October 12, 1869). These measures, so severe, were inspired more by the dangerousness of the offense than by the frequency of the crime, which is rather exceptional.

II. SIN AND CRIME

According to the bull Sacramentum Poenitentiae, confirmed by can. 904, those priests commit s[olicitation] who, either in the act of sacramental confession or before or immediately after confession, or taking occasion or pretext from confession, but in the confessional or in another place destined or chosen for hearing confessions, have attempted to solicit or provoke some penitent (whatever person it may be) to dishonest and shameful things, whether by words, signs, nods, touches, or by writings to be read immediately or afterward; or have rashly held illicit and dishonest conversations with them. Whoever acts thus, besides the sin against chastity, sins by nature against religion, charity, and, if a parish priest, against justice. For the crime to be constituted it is required: 1) that there be the incitement (gravely culpable in the one who carries it out, from the standpoint of lust) of a woman or man, made explicitly or implicitly, to internal or external acts, but grave, against chastity; 2) that the solicitor be a priest in the act of confession; 3) that he solicit immediately before or after or during confession and under the pretext of confession. True and proper s[olicitation] occurs even if the one solicited does not consent; nor is it necessary that the person directly solicited be the penitent, but it may also be a third person to be approached by the penitent. The relative penalties: suspension from the celebration of Holy Mass and from hearing confessions; in graver cases, inability for the office of confessor, deprivation of benefices, offices and dignities, of active and passive voice and declaration of inability for the same offices and benefices; in most grave cases, degradation. They are all penalties ferendae sententiae, given the necessity of an evaluation of the gravity of the crime (can. 2368 § 1), before they can be imposed. Cardinals are exempt from these penal sanctions; the exemption of bishops, advocated by some, does not appear to be sustainable.

The determination of the conditions for the configuration of the crime has given rise to an abundant casuistry, which is not the place here to examine or discuss. The practical interpretation that is given by the Sacred Congregation of the Holy Office (can. 247 § 2), competent in the matter, is rather restrictive and severe.

III. OBLIGATION OF DENUNCIATION

Every person, whether or not he has yielded to the solicitation, of whatever condition he may be, is bound to denounce the solicitor within one month under penalty of incurring excommunication nemini reservata (can. 2368 § 2). The time is to be reckoned from the moment when one has knowledge of the solicitation. The obligation of denunciation extends to all persons who know the fact of the solicitation; however, the knowledge must be certain, since this is a case so full of sad consequences. The canon seems to restrict the obligation of denunciation to the solicited person alone, but, notwithstanding this, the extension of the obligation to all those who have knowledge of it is suggested in the reply of the Holy Office of 11 Feb. 1661 and clearly expressed in the reply of 3 Jan. 1663. Nevertheless the soliciting confessor is not bound to denounce himself; but if he does so, he must be treated with less severity (instruction of the Holy Office of 20 Feb. 1866). One is also not bound to denounce if one has a doubt whether a true and proper solicitation existed; but if the external act evidently implies solicitation, and only the intention of the confessor is in doubt, the duty of denunciation remains. The priest, graviter onerata eius conscientia (can. 904), must admonish the faithful of the obligation of denunciation; and he cannot absolve him until he has fulfilled this obligation (can. 2368 § 2). If the penitent feels repugnance at making the denunciation, the confessor, after having wisely examined the case, must help him and counsel him in the best way possible. The obligation of denunciation is a grave obligation of charity (to prevent the further ruin of souls) and of obedience toward the ecclesiastical law, which treats of a most grave matter. There are nevertheless causes that excuse from the obligation of denunciation. They are: 1) the impossibility of being able to make the denunciation; 2) the death of the soliciting confessor. However, as long as he is alive, even if the solicitation occurred a long time ago, the obligation of denunciation always remains, unless he has perfectly amended himself for a year; 3) a grave danger of life, of infamy, of loss of worldly goods, or a grave hardship for the solicited person; 4) the sacramental seal; 5) the dispensation obtained from the Holy Office or from the Sacred Penitentiary. This, however, is almost never granted.

IV. FORM OF DENUNCIATION

The denunciation, according to can. 2363, must be made to the ecclesiastical superiors who have the power to inquire into the matter, namely the local Ordinaries, according to the scope of can. 198, and the Holy Office. According to the common opinion, the vicar general cannot receive the denunciation of solicitation. In fact the words of the constitution of Benedict XIV, Sacramentum poenitentiae, 1 June 1741: «inquirant et procedant contra omnes...» require a judicial power which the vicar general does not have without a special mandate.

One may distinguish a twofold kind of denunciation: a simple or extrajudicial form, for example by letter; and a judicial form. The simple form is not forbidden, but of itself it is not sufficient to satisfy the obligation of denunciation, nor to proceed against the presumed guilty party. However, it can offer an occasion to the Holy Office and to the local Ordinary to investigate and to obtain, if need be, a fully judicial denunciation. The judicial denunciation must be made orally to the Holy Office or to the bishop or to a delegate of theirs, with the participation of an ecclesiastic acting as notary. The Ordinary may, for just reasons, dispense with the presence of the notary. The bishop may delegate even a simple priest to receive the denunciation; the latter, however, must transmit all the documents intact to the Ordinary without keeping a copy for himself.

In order fully to achieve its purpose, the denunciation must contain a detailed exposition of the crime with the circumstances of time, place, etc., the name of the confessor who solicited, the domicile and the name of the denouncer. This today is very easy, because it is enough to fill in the form which the Holy Office or the local Ordinary has. The denouncer, on the other hand, is bound to answer with the greatest sincerity the questions put to him: indeed it is well to begin with an oath on the Gospel to tell the whole truth. Moreover the denouncer must sign all his declarations.

V. PROCESS AGAINST THE SOLLICITANTS

The trial must be conducted according to the Instructions of the Sacred Congregation of the Holy Office of 20 Feb. 1886, 20 July 1890, 6 Aug. 1897 (P. Gasparri, op. cit., nos. 990, 1123, 1190), but it may also be conducted ex informata conscientia (can. 2186 ff.; Sacred Congregation of the Holy Office, 20 Feb. 1866, nos. 10-11). Everything must be carried out in the strictest secrecy. A preliminary investigation must be made into the truthfulness of the denouncer, to be ascertained through witnesses (at least two) sworn de credibilitate. If necessary, the denouncer may be interrogated again. The accused is then interrogated, and is subsequently admitted to the written defense, to be made by himself or through an advocate (can. 1862 ff.). The sentence must be pronounced by the bishop and not by a delegate of his, on the existence or non-existence of the crime and, if it is found to exist, on the penalties to be inflicted in accordance with can. 2368 § 1. Furthermore, if the accused, in the course of the trial, has confessed the crime, he must make the abjuration (v.) to purge himself of the suspicion of heresy (v.).

The trial ordinarily does not follow upon the first denunciation, but by the practice of the Holy Office (Holy Office, 6 July 1833; Instructio, 20 Feb. 1866) proceedings are begun only after the third. In the first two cases the written denunciation is kept and the priest confessor is placed under surveillance; but it is not excluded that proceedings may be begun even after the first denunciation.

VI. FALSE DENUNCIATION OF SOLICITATION

The denunciation of s. against innocent priests acquires a special wickedness that the Church rightly punishes with a most grave penalty. Before the CIC the false denunciation of s. was a sin reserved to the Holy See in a most special manner. Today, instead, as a sin it is reserved to the Holy See ratione sui and as a crime it is punished with excommunication, specially reserved, for whose absolution there is required prior retraction, reparation to the extent possible, and grave and long-lasting penance (cann. 894, 2363). To incur such penalties there is required: 1) that there be a false denunciation of the priest in his capacity as confessor; 2) that the denouncer be aware of its falsity; 3) that there have been a judicial denunciation, that is, made according to the norms set out above; 4) that the denouncer have knowledge of the censure. It is concordantly held that ignorance, provided it is not affected, supine or crass, excuses one from incurring the censures; but it does not excuse from the reservation, although some theologians think otherwise.

a difficulty, physical or moral, it is enough that the retraction be made in the best way. However, absolution given without a formal retraction is valid, provided the penitent is in good faith and the priest has the requisite power.

Pietro Palazzini