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CLERICAL CONCUBINAGE AND THE SIN AGAINST THE SIXTH COMMANDMENT OF THE DECALOGUE. AN EXAGESIS OF CAN. 1395 § 1

CLERICAL CONCUBINAGE AND THE SIN AGAINST THE SIXTH COMMANDMENT OF THE DECALOGUE. AN EXAGESIS OF CAN. 1395 § 1

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by May 7, 2018 Seminar Papers

CLERICAL CONCUBINAGE AND THE SIN AGAINST THE SIXTH COMMANDMENT OF THE DECALOGUE. AN EXEGESIS OF CAN. 1395 § 1

Rev. Fr. Ahamiojie Benedict Oseghale

 NCCF: Seminar, April 2018

Introduction

When a man is legitimately ordained, he is marked with an indelible character by virtue of which he executes in persona Christi the triple function of Teaching, Sanctification and Governance in Church. Once ordained, ipso iure, the faithful becomes a sacred minister, who is juridically referred to as cleric and amongst the several obligations binding on the cleric, he is as well canonically obliged to observe perfect and perpetual continence; he is bound to celibacy.[1]

Celibacy is the canonical state of abstinence from marriage, freely undertaken for the purpose of total a dedication of one’s life in service to God and practical charity towards all men.[2] Chastity is the “pearl of the Catholic Priesthood”, yet, it is the most vulnerable evangelical counsel[3]. Saint John Paul II, speaking on celibacy in his letter to all priests of the Church, on Holy Thursday wrote:

“It is rather a characteristic mark and heritage of the Latin Catholic Church. To it, this Church owes a great deal and She is determined to persevere in it in spite of all the difficulties in the way of such fidelity and in spite of the fact that individual priests are showing many signs of weakness and crisis. For while we are all quite convinced that we possess this treasure in earthen vessels, at the same time we know for certain that it is, indeed, a treasure.”[4]

The cleric, who in his relationship with a woman or women, assumes the consuetude of a married man, either by unlawfully cohabiting and/or engaging in any form of conjugal fellowship, is said to be living in clerical concubinage, thereby, breaking his bond with celibacy. The cleric, who in other ways, violates the sixth commandment of the Decalogue is said to have violated his obligation to chastity and continence.

This work is a study of the delict of clerical concubinage and other violations of continence and the canonical procedures provisions that must be applied in concern for the cleric and the edification of the Church.

This work is a quest for an acceptable description of the Concept of Concubinage and then an investigation into other external sins against the sixth commandment of the Decalogue that could attract penalties.

 

The notion of Cleric

The qualification of the ministers as sacri stems from the fact that all baptized persons in the Church are ministers but the clause “sacred” is reserved exclusively to those who, beyond the indelible character of baptism, have also been sacredly ordained, receiving the Sacrament of Holy orders.[5] Canon 290 helps us understand the distinction between the terms, sacred minister and cleric.[6] The term sacred minister indicates the sacramental character of the ordained person while the term cleric is in reference to the juridical status of the person. The sacramental character, once validly received is permanent and irreversible but the clerical status could be lost.[7] The juridical status of cleric is caused by the reception of the Sacrament of Holy Orders, which is categorized into three degrees, namely, the diaconate, the presbyterate and the episcopate.

The obligation of celibacy as the basis for Can. 1395

So strong is the binding force of celibacy upon clerics that it receives the preservation of the law and lays the foundations for the diriment impediment to marriage as established in 1087. Its non-fulfilment gives rise to certain offences listed in cann 1394 – 1395. Even at the loss of clerical state, the obligation to celibacy is not automatically dispensed, except by the concession of the Roman Pontiff, as prescribed in canon 291.[8]

In the Early Church, there were married men who formed part of the clergy but from the writings of St. Paul, it seems they were allowed to contract a single marriage (1Tim 3:2; Tit 1:7). Nevertheless, a greater number of the clergy and most of the Apostles seem to have practiced celibacy, following the example of Christ.[9] Right form the early beginnings of the Church Clerical Continence has been a point for discussion. In the seventh chapter of St. Paul’s first letter to the Corinthians, he clearly casts a vote in favour of the unmarried state. It is worthy of note that St. Paul doesn’t make any direct reference to the sexual asceticism of the deacons or priests or bishops of his time, but it is a biblical text upon which lies the explanation for the clerical way of life today, namely: Continence/Celibacy.[10]

By the 4th century, custom prohibited married men who were major clerics, the conjugal execution of their marriage, while major clerics who were not yet married were totally prohibited from marrying. By the year 306, at the Council of Elvira the law had been put into writing; it was forbidden for bishops, priests, deacons and other ministers of the altar to have wives. The Council of Carthage (419 AD) explicitly included subdeacons[11]

However, these statutes were not universal and neither did they declare null the marriage of clerics who, nonetheless, took spouses. The First Lateran Council (11123) would extend the obligation of celibacy to all major clerics in the Latin Church. It was at the second Lateran Council (1139) that it became a documented law and sacred orders became a diriment impediment to marriage for the universal Church. It is worthy of note that some local councils in the early 12th century had already assumed to be null, the marriage of clerics and such unions were not considered marriage but fornication. In 1920 Pope Benedict the XV speaking against the bohemian association that agitated for the abolition of celibacy, declared that, the Church would never abrogate or mitigate the law of priestly celibacy.[12]

In the current code, the obligation to celibacy is enshrined in can. 277. In fact the first three words of the canon demonstrate how determined the legislator is to bind priests to the discipline. The canon begins with “Clerici obligatione tenentur” which means all clerics (with exception to none) are held to the obligation. One would possibly irk at the tone of force used in this canon, but come to think of it, the Church does not enforce celibacy on anyone. It is rather a discipline, which is attached to the life of clerics, who of their own free will, answer the call to the priesthood and present themselves for ordination, thereby simultaneously embracing celibacy, which is in fact, “a special gift of God” (can. 277), the possession of which is given as condition for embracing the catholic (Latin) priesthood. Therefore, the bond of celibacy is freely assumed at ordination; and from the free assumption of this bond comes the obligation of the observance of perpetual continence.[13]

Concubinage as applied in Can. 1395

Concubinage is the combination of two Latin words. Cum (which means “with” or “together”) and cubare (which means “lie” or “recline” in bed). So literally, concubinage would be the act or state of lying in bed with somebody and the concubine would be the person with whom one shares the intimacy of his bed. However, beyond the literal translation from the etymological point of view, concubinage would be interpreted to mean a stable sexual relationship that exists between two people outside the bond of marriage. In primitive canon law, the word concubinage signified a relationship between a man and woman that had the semblance of marriage, but of an inferior nature or of doubted moral rectitude.[14] So, in a clerical context concubinage would be, a stable sexual relationship that exists between a cleric and woman (who is at least 18 years of age) outside the bond of marriage.

Canon 1395 states: “A cleric living in concubinage…” but the mother text, from which the English version is translated states: “Clericus concubinarius…” which would be translated to mean “a concubinous priest”.[15] Now, the difference between the English translation and the Latin mother text is, while the Latin text does not specify if the offence is past, actual or proximate, the English text speaks of the offence in a present continuous tense form. Therefore, while the original text does not limit the offence against the obligation of celibacy to a particular time frame, and is therefore all-inclusive, with the hand of justice stretching back into the past, the English text, which, by my humble observation, is erroneous in translation, seems to be concerned with the “here and now”. Nevertheless, can. 1362 §1, 2˚ remedies the implications of the inaccurate translation of canon 1395.[16]

External violation of Continence in the 1983 code

In the 1983 Code, canon 277 explicitly mentions the term continence. § 1 states: Clerics are obliged to observe perfect and perpetual continence for the sake of the Kingdom of heaven and are therefore bound to celibacy.[17] In other words, celibacy is founded on continence. In lay terms, I would say celibacy is the child of continence. Jorge de Otaduy, in commenting on this canon says, the recovery of the expression perfectam perpetuamque continentiam, (which is deeply rooted in canonical tradition­­­­­­) warrants a more favourable treatment than the term chastity as used in the Can. 132 of the 1917 code, because it helps to emphasize that the virtue of continence is appropriate to all the faithful in any of the conditions of life in which they may find themselves.[18] It is important the note that permanent unmarried deacons are subject to the norm of Can. 277 in the same manner as presbyters. Married deacons, however, are not obligated to keep perfect and perpetual continence and may continue their normal married life. Can. 277 § 2 requires that all clerics be prudent in their behaviours and relations with persons whose company can endanger their obligation of preserving continence. This paragraph is applicable, not only to presbyters and unmarried deacons but likewise married deacons. As is logical, the rulings of the second paragraph would have to be applied to their particular circumstances.[19]

Continence risks being violated by today’s means of communication and social media. Canon 666, on “the obligations and rights of institutes and their members”, states: In using the means of social communication, a necessary discretion is to be observed. Members are to avoid whatever is harmful to their vocation and dangerous to the chastity of a consecrated person.[20] The motive for this canon is to protect against anything that threatens the vocation (in general) and the chastity (in particular) of the consecrated person. The premise of this canon is a demand for a necessary discretion in the use of social communication.  The expression “means of communication” includes any instrument that places the religious in contact with the external world, such as books, newspapers, magazines, telephone, radio, audiovisual media and most dominantly today, the internet.[21] Apparently, the legislator sees social communication as a sure channel from which the chastity or continence of the consecrated person can be tested and violated. True to expectation, the threat that the internet, television and other means of communication pose today as militant forces against continence is devastating. Other than the harmful literature and ideas we get from these means of communication, the extremely sordid and vulgar degradation to which the television and internet can sink man and woman, makes it necessary to take very seriously the words of the legislator in this canon.

Canon 977 speaks about the absolution of an accomplice in the sin against the sixth commandment of the Decalogue. There are two major effects that follow as a result of the absolution. Firstly, according to the same canon, the absolution is invalid, so there is no absolution in the first place, except in the danger of death. The second effect is the cleric in question incurs a latae sententiae excommunication reserved to the Apostolic See as prescribed in Can. 1378. The 1917 code is even more severe. Can. 2367¹ states that the delinquent priest still incurs excommunication even in the danger of death, if there was another priest available.[22] The invalidity of the absolution and the excommunication in the case of confessio turpia, do not consist in the fact that the priest has no faculty to absolve but that he pretended to absolve someone of turpitude even though he was an accomplice. This canon preconsiders the fact that the dignity of the ministerial priesthood which demands of the cleric a dedication to continence and chastity, has been grossly compromised.[23] Prior to the pretended absolution, there must be an external violation of continence.

It is important to note that when the confessor solicits the penitent to sin with him, the delict in this case is the competence of the Congregation for the Doctrine of Faith.[24] Can. 2368 of the 1917 code is the parallel of Can. 1387. However, Can. 904 of the 1917 code obliges the penitent to denounce the soliciting confessor within one month of the solicitation. Failure to do so, the solicited penitent incurs excommunication, latae sententiae.[25] The delict of soliciting contra sextum is an external violation of continence that is perpetrated during or on the pretext of the sacrament of penance and this is grievous.

Finally, another case that demonstrates the external violation of continence in the 1983 code is canon 1395 § 2. This canon speaks of the violation of the sixth commandment executed by force or by threats or in public or with a minor under the age of sixteen. A violation contra sextum ex vis is rape, that is a cleric forcefully making another person succumb to his sexual desires, while violation contra sextum ex minis is the sexual violation that is achieved by intimidation or threat. Intimidation and threat, in canonical doctrine is referred to as moral violence. Such violence consists in a coercion or psychological pressure that causes anxiety in the mind of the passive subject. It is a kind of disorientation and fear that causes the passive subject to decide to do something which in reality he or she wouldn’t have done.[26] The violation contra sextum in public is when the cleric, without any sense of discretion, violates his obligation to continence in a public place or even in the sight of a single person.

It is important to stress that the minor must not necessarily be of the opposite sex. It could be a boy or girl. And he or she must not necessarily be forced or threatened into the act. Even if the minor conscientiously participated, as long as the cleric has indulged himself with any person under the age of eighteen, he is punishable as demanded by the aforementioned canon.[27]

Finally, the delict of pedo-pornography is also considered in art. 6 § 1, n. 2 of the Normae de delictis reservatis. It is criminal to acquire, retain and divulge pornographic material of any kind and with any instrument, of minors under the age of fourteen for libidinal purposes.[28] The external violation of Continence as portrayed in Can. 1395 § 2 is quite easy to decipher and the punishment provided is iustis poenis puniatur, non exclusa, si casus ferat, dimissione e statu clericali.[29]

Persistence In Scandal And The Application Of Suspension And Other Penalties

Canon 1395 § 1 talks about delinquent clerics of two categories. The first category is clericus concubinarius (A cleric living in concubinage). The second category is clericus in alio peccato contra sextum permanens (A cleric who continues in some other external sin against the sixth commandment of the Decalogue).[30] In this segment, we shall be discussing the cleric who persists in the violation of his obligation to celibacy and chaste living, consequently causing scandal in the eyes of observers. Such habitual defiance of both the law and morals is what is called contumacia, that is contumacy or contempt.

The notion of Contumacy

The notion of contumacy in the Pio-Benedictine Code and the 1983 Code differ significantly. Contumacy in the 1917 code corresponds more closely to the idea of contumacy in the civil court (usually referred to as “contempt of court”). While contumacy in the prior code has to do with the comportment of the respondent and the plaintiff in ecclesiastical trials, contumacy in the 1983 code is more related to the unwillingness of the offender to recede from his criminal behaviour. In the light of the 1983 Code, Contumacy is the contemptuous disobedience or insolent defiance of the competent ecclesiastical authority.[31] In this case, contumacy is related to canonical penal law and more specifically to the institution of censures.[32]

In Canon Law, a censure is a medicinal penalty which is provided to basically amend the author of a delict. A censure presupposes contumacy, that is, a state of rebellion (contemptus) and the censure lasts as long as the rebellion lasts. Contumacy could be divided into two categories, Formal contumacy and interpretative contumacy. Contumacy is formal when after a ferendae sententiae censure (that is a condemnatory sentence pronounced by the judge), the author of the delict (in this case, the concubinous or delinquent cleric), in spite of admonitions received does not desist from concubinage or refuses to undergo penance and repair the damage and scandal wrought by his actions. Contumacy is interpretative when after a latae sententiae censure (that is a censure automatically incurred by the very fact of his offensive action), the censure is later pronounced and the delinquent does not desist from his transgression, his rebellion or contumacy is then deemed implicit.

The concubinous cleric or the cleric involved in any other violation of the sixth commandment must be warned forehand by the legitimate superior that his criminal conduct entails the infliction of suspension and he shall be so inflicted unless he reforms and purges himself of his contempt (Can. 1347).[33] This admonition must be written and documented (cc. 697; 1339 § 3). In clearer terms, medicinal penalties can be imposed only upon someone who is in contempt. The medicinal nature of the penalty is such that it cannot be imposed until malice or contempt has been demonstrated. The instrument required to demonstrate the concubinous priest’s defiance is a written and signed canonical warning. The canonical warning is ad validitatem. A superior who punishes his subject without a prior warning acts invalidly.[34] An admonition or reproach for the offense committed, with a warning that the offender will incur a censure unless a correction is made, is an indispensable element of a medicinal penalty, in this case, suspension.

Canon 1347 is inspired by Can. 2233 of the Pio-Benedictine Code. But the difference between these two codes is that, while the Pio-Benedictine Code does not have the validity clause, the 1983 code hinges the validity of suspension on a prior admonition. The Pontifical Commission for interpreting CIC/17 states that for penal precepts that provide a ferendae sententiae penalty, there is no need for prior admonition when they are violated. The admonition is present in the precept itself. In such case, if the offender ceases in contempt before appearing at trial, he may not be punished.[35] But in the 1983 dispensation, admonition is absolutely essential before a penalty can be applied. This is a canonical requirement that seems to slip by most superiors and ordinaries who punish invalidly because there was never a prior warning. As to the question of how many admonitions are required, the code says semel saltem monitus sit, at least one warning! Furthermore, before a delinquent cleric can be said to be contempt, when the admonition has been legally issued demanding an amendment in his scandalous behaviour, he must be given adequate time to do so. Exactly how much time is needed for amendment isn’t specified by the Code. But in the spirit of canonical equity, it should not be an unreasonably short time, neither should it be an exaggeratedly long time.

Can. 1347 § 2 establishes when one is said to have been purged of contumacy. The cleric living in concubinage or the cleric that commits any other form of violation contra sextum must meet the two prerequisites spoken of in the aforementioned canon before he is deemed free of contumacy. Let it be noted that these two conditions must be met before remission is granted. Firstly, he must be truly repentant of his offence. Secondly, he must make or seriously promise to make appropriate reparation for the damage and scandal. In the absence of any of these two prerequisites, remission is out of the equation.[36] Repentance also requires that the offender eliminates the consequences of his act, hence, the need to adequately repair the damage and the scandal. Repentance cannot merely be a simple internal act of will. The commitment to re-establish the disrupted order must go along with repentance. And this commitment made manifest, is the only way to verify the sincerity of the repentance. Theoretically, the Cleric in Can. 1395 must make an effective reparation in order to speak of cessation of contempt. Sometimes, however, a serious promise to make reparation is sufficient. The cessation of contempt is to be ascertained or judged by the superior who possesses the jurisdiction to impose the penalty.[37]

If the cleric sincerely repents and makes reparation, thereby purging himself of his contumacy, in accordance with Can. 1347 § 2, the offender has the right to absolution from the censure, and the authority with jurisdiction has the duty to grant it. However, if the superior considers that the just social order upset by the offender has not been sufficiently defended, even after repentance and reparation, in place of a censure, a penance can be imposed on the repentant delinquent.[38]

The element of contumacy in Can. 1395 § 1, consists in the verb, “permanens”. The fact that the concubinous cleric continues in some other external sin contra sextum, underlines his flagrant disobedience and defiance after fraternal correction, reproof and pastoral care have been issued by the Ordinary or competent authority. Owing to the clerics brazen comportment an atmosphere of scandal is inevitable and that is what we shall be discussing next.

The notion of Scandal

Unfortunately, the present Code does not give us a definition nor description of scandal, so, I shall depend on what Church Doctrine and Tradition leaves us as the general understanding of scandal, and from these infallible stepping stones, I shall interpret the use of the word “scandal” in the Code of Canon Law and relay its canonical implications.

The word scandal comes from the Greek word, scandalon (σκανδαλον), meaning “offense, downfall or a stumbling against something”. In common use, scandal is an objective act, person or thing that gives offense or shocks the moral alertness of a people.[39] Scandal, strictly speaking, has its origin in religion and moral theology and is less common in the legal sphere. It is a term used to describe the injury done to the moral and cultural sensibilities of observers. St Thomas Aquinas says scandal is something less rightly said or done, that brings about the spiritual downfall of another.[40]

The Code contains several canons that make use of the word scandal. Damian Astigueta claims the word scandal is used 28 times in the 1983 code, yet, no canon even minimally defines or refers to what scandal is. Nonetheless, the canons that speak on scandal can be divided into two chronological groups. Scandal can be related to the future as something that must be avoided or prevented (cc. 277 §2; 933; 990; 1132; 1184 §1; 1352 §2; 1399; 1455 §3; 1560 §2; 1722) or related to the past and must be repaired (cc. 326; 695§1; 696 §2; 703; 1211; 1318; 1328 §2; 1339 §2; 1341; 1344 §§ 3 e 4; 1347 §2; 1357 §2; 1361 §3; 1364 §2; 1394 §1; 1395 §1; 1727 §2).[41]

Speaking of scandal as an unfortunate incident which must be avoided, the Church as a means of salvation has the obligation to safeguard her faithful from any form of injury to their sense of right and wrong. The Church must protect the faithful from any form of turbulence to the entire structure of values, principles and patrimony of moral and religious rectitude. Any action that militates against these core beliefs is a violation against the serenity of the mind and heart of the faithful. It is an injustice against the soul striving for salvation and it is this very injustice that the Code of Canon Law attempts to avoid whenever she discourages a subject from embarking on specific courses of action.

Canon 1352 § 2 demonstrates how much the Legislator deems it important to protect the faithful from scandal. Bearing in mind that canon 1341 demands that justice be restored and the offender be reformed, Can. 1352 § 2 prescribes that the punishment be suspended either in whole or in part if it cannot be observed without the danger of grave scandal. This canon reveals to us how interested the legislator is in the general good. It is important to state that the suspension of the penalty is for the good of the society or community and not meant to favour the delinquent cleric. In addition, the penalty is only suspended, not remitted.

All through the Code of Canon Law, the word scandal is connected with situation to be avoided or to be repaired. So uncompromising is the legislator with the repair of a scandal that, even in the internal forum, the confessor does not absolve the penitent without some form of satisfaction for his sins or repair of any scandal.[42] Sometimes, the repair of a scandal comes at such a high price. If need be, the repair of a scandal might even cost a delinquent his clerical state. As demonstrated in Canons 1394 & 1395.

Suspension

The penalty prescribed in the first part of Can. 1395 § 1 is obligatory and determinate ferendae sententiae suspension.[43] Suspension is a censure. So, before we go into discussing what a suspension is, let us briefly examine the notion of censure, since it is the species of penalty under which suspension falls. As a premise, let me state that a penalty is the privation of a spiritual or temporal good which the Church bestows.[44] A more complete juridical definition of a canonical penalty could be: the coercive deprival of subjective rights, imposed on a delinquent by lawful authority, for the defence of the fundamental juridical interests of the Church. That being said, a censure is a penalty by means of which a baptized person who has committed an offence and is unrepentant is deprived of certain spiritual goods or goods annexed to spiritual ones until he or she desists from the same and is absolved.[45]

A censure cannot be imposed in perpetuity, nor for a specific time, nor for an unspecified time if the period of time depends on the will of the superior. This is so because the principal purpose of the censure is the correction of the offender and the end of his contumacious conduct.[46] There are strictly three types of censure, namely, excommunication, interdict and suspension. Can. 1347 § 1 makes a point we must not take lightly, namely:

A censure cannot validly be imposed unless the offender has beforehand received at least one warning to purge the contempt and has been allowed suitable time to do so.[47]

Canon 1333 is the canon that introduces the canonical penalty of suspension. Suspension is a censure exclusive to clerics, by means of which they are forbidden, either partially or completely, to exercise the power of order or the power of governance, or both and also the right to receive certain temporal goods. There can be suspensions of order of jurisdiction, or office, depending on the content of prohibition. There can also be full suspension, according to Can. 1334 § 2, all of which I shall explain now.[48]

Today, however, some consider the possibility of applying this same penalty to laypersons who have legal capacity within the Church and fulfil certain offices (such as judge in an ecclesiastical tribunal) and who may be permanently instituted to perform some ministries (acolyte or lector). In this regard, during the reform process, some consultors asked that the penalty of suspension also affect the laity.[49] It does not appear that a suspension imposed upon a layperson would have impaired the nature of the penalty. In any case, current discipline strictly establishes that suspensio,clericos tantum afficere potest.[50]

Observing the prohibitions contained in the censure of suspension, we may distinguish four types of suspension.

  1. Total or partial suspension of order. Depending upon whether it prohibits exercising some or all acts of the power of order. Therefore, it does not affect acts included in the power of governance. An example of a partial suspension of order would be to suspend the cleric from celebrating mass or hearing confessions.
  2. Total or partial suspension of jurisdiction. Jurisdiction, simply speaking, is the power of governance. Total or partial suspension of jurisdiction prohibits some or all acts of exercising the power of jurisdiction. These are the acts described in canons 129 – 144. They are acts proper to legislative, executive and judicial power.
  3. Total or partial suspension of office. This kind of suspension could prohibit some or all the rights or functions inherent in an office. (Cf. Can. 145)
  4. Total suspension. This includes suspension of order, jurisdiction and office. This form of suspension is particularly grave because it includes all the previous effects along with criteria that restricts its use in Can. 1334 § 2.[51]

The censure of suspension must be applied within the limits of the law. Suspension has its limits beyond which it cannot go and § 3 of Can. 1333 outlines them. The prohibitions in a suspension never affect any office or power of governance which are not within the control of the Superior who establishes the penalty. Particular law suspensions, unlike those specified in the code, affect only those offices or aspects of the power of governance under the authority of the penalizing superior. Hence, if a cleric’s office were conferred by an authority other than his own bishop, he could still exercise it even if he were suspended in his own diocese due to a particular law.[52]

Another protection of the suspended cleric is the humanitarian provision that he still enjoys, namely, the right of residence connected with his office. For example, the suspended pastor living in his rectory.[53]

For prudence sake, if the suspension is latae sententiae, the suspended cleric retains the right of the administration of goods which belong to the office from which the cleric was suspended. The purpose of this is to not compromise the patrimonial good of the Church but to avoid an administrative lacuna. On the contrary, if the penalty is ferendae sententiae and it is inflicted by way of a decree or sentence, then the suspension can deprive the suspended cleric of the administration of goods and a temporary parish financial administrator can be appointed.[54] If the suspended cleric profits illegitimately from the income related to his office, he is to make restitution to the Church in justice, even if he acted in good faith (Can. 1333 § 4). However, even the suspended cleric has a right to decent support (Cc. 281; 1350 § 1).[55] Suspension from office by sentence or after a declaration always means the invalidity of assisting at marriage, by the express determination of Can. 1109.[56]

Progressively added penalties.

The canon under examination recommends that other penalties may be progressively added. By the clause “other progressively added penalties” we understand that the penalty provided is indeterminate. Hence, we must tread carefully following the demand of Can. 1349, which recommends that if a penalty is indeterminate, and if the law does not provide otherwise, the judge is not to impose graver penalties, especially censure, unless the seriousness of the case really demands it. He may not impose penalties which are perpetual. It suffices to say that indeterminate penalties are not favoured by the legislator, firstly because they lack adequate force as precautionary dissuasion and secondly, because, except with certain caveats, they do not sufficiently ensure justice for the offender, because they leave ample room for discretion by the judge or superior.[57] Canon 1349 implicitly establishes a certain hierarchy of gravity among penalties: censures – perpetual expiatory penalties – temporary expiatory penalties. [58]

In the previous Code,[59] “vindictive penalty” was the term used to describe what we now call expiatory penalty. It was in view of the retributive and pejorative nature of the expression “vindictive”, the Code then preferred to use the phrase “expiatory penalty”, a clause taken directly from St. Augustine’s De civitate Dei 21,13, but the meaning is the same, regarding both the nature and the effects.[60] Canon 1336 outlines the expiatory penalties:

  1. A prohibition against residence, or an order to reside, in a certain place or territory.
  2. Deprivation of power, office, function, right, privilege, faculty, favor, title or insignia, even of a merely honorary nature.
  3. A prohibition on the exercise of those things enumerated in n. 2, or a prohibition on their exercise inside or outside a certain place; such a prohibition is never under pain of nullity;
  4. A penal transfer to another office.
  5. Dismissal from the clerical state.[61]

The above enumerated expiatory penalties are the possible progressive penalties that can be inflicted upon the concubinous cleric who persists in his anti-juridical comportment. In addition to these, the concubinous cleric who persists in other violations against the sixth commandment of the Decalogue can also be inflicted with penances. The penance spoken of here is not the sacramental penance; it is rather a penal provision which is meant to substitute for or to augment a penalty (Cf. Can. 1312 § 3). When the progressive penalties have failed to reform the cleric, the judge or superior is left with no other choice than to dismiss him form the clerical state.

Can. 291 determines that the loss of the clerical state does not carry with it a dispensation from the obligation of celibacy which is granted solely by the Roman Pontiff. Giacomo Incitti says the cleric who loses the clerical state is to remain bound to his obligations, particularly to the obligation of celibacy. Nobody should be allowed to draw some sort of advantage from his wicked actions or delict.[62]

Canon. 292 legislates that the concubinous cleric who is dismissed from the clerical state is free from fall obligations tied to the clerical state, without prejudice to Can. 291. He is prohibited from exercising the power of Order except in the extreme cases of death (Can. 976). He is automatically deprived of all offices and roles and of any delegated power. As specified in Canon 293, a cleric who has lost the clerical state cannot be enrolled as a cleric again save the rescript of the Apostolic see.

CONCLUSION

The concept of clerical concubinage and the external sin against the sixth commandment of the Decalogue, is quite an unexplored territory among scholars of Canon Law. Most scholars and the Church herself seem to indulge more concentration and debate on Can. 1395 § 2, and perhaps rightly so, because it involves the forceful sexual violation of minors, the most vulnerable in our society. Moreover, the violation of continence in Can. 1395 § 1 is presumed to be between two consenting adults.

Nonetheless, the violations spoken of in § 1, likewise cause scandal, thereby injuring the good sensibility of those in knowledge of such misconduct. The said violations disrupt the external social order of the Church, bride of Christ, compromise the wholeness of the self-offering of the cleric and dents the general image of rectitude the clerics and the clergy should represent. Canonically, it is offensive, morally is disreputable and spiritually, it is soul tarnishing.

The objective of this work is to advocate for the proper steps to be followed when a cleric is found to be living in concubinage and also to stress that Canon 1395 § 1 is not just limited to concubinous clerics, but also clerics who indulge in some other external sin against the sixth commandment of the Decalogue. In this second category of delinquent clerics, every other form of peccato contra sextum is left to the wise discretion of the Ordinary, or the Superior, or the Judge.

Speaking about the Ordinary and Superior, it is unfortunately common practice to see many clerics penalized without prior admonition. Such “penalties” are invalid from the off-set because the Code of Canon law prescribes that there must be a written and documented admonition to the cleric before he can be validly penalized. This gross executive oversight has allowed many to get away without being validly punished and even many more to be invalidly and therefore unjustly punished (as ironic as it may seem).

The canonical procedure to be followed, though formal, is not meant to be formalistic. The formal procedure, is the surest means to arrive at the truth and at justice. A justice that is executed contrary to the procedural norm is no justice at all. To abandon the procedural norms and trust in one’s personal intuitions and convictions, in order to arrive at a just decision would be an arbitrary act at the risk of justice itself.[63]

[1] Can. 277.

[2] P. DELHAYE, “Celibacy” in New Catholic Encyclopedia. Vol. III, Jack Heraty & Associates, Inc., Palatine 1981, 366.

[3] G. DI MATTIA, “Offences against Special Obligations, Can 1395,” in A. Maroza – J. Miras – R. Ocana (Ed), Exegetical Commentary on the Code of Canon Law, vol. IV. Wilson & Lafleur, Canada 2004, 545.

[4] Novo Incipiente, 8.

[5] L. CHIAPPETTA, Il Codice di Diritto Canonico. Commento giuridico-pastorale 1. Dehoniane, Roma 2011, 276

[6] J. BEAL – J. CORIDEN – T. GREEN (Ed), New Commentary on the Code of Canon Law, Paulist press, New York 2000, 252.

[7] Sacred ordination once validly received never becomes invalid. A cleric however, loses the clerical state. E. CAPARROS – H. AUBÉ (Eds.), Code of Canon Law Annotated, 239.

[8] E. CAPARROS – H. AUBÉ (Eds.), Code of Canon Law Annotated, 226.

[9] P. DELHAYE, “Celibacy” in New Catholic Encyclopedia. Vol. III, Jack Heraty & Associates, Inc., Palatine 1981, 366.

[10] S. HEID, Celibacy in the Early Church, Ignatius, San Francisco 2000, 33.

[11] P. DELHAYE, “Celibacy” in New Catholic Encyclopedia. Vol. III, Jack Heraty & Associates, Inc., Palatine 1981, 366.

[12] Ibidem, 336.

[13] J. DE OTADUY, “The obligations and Rights of Clerics, Can. 277.” in A. Maroza – J. Miras – R. Ocana (Eds), Exegetical Commentary on the Code of Canon Law, vol. II, Wilson & Lafleur, Canada 2004, 346.

[14] G. TARANTO “Concubinato. Diritto Romano” in A. AZARA – E. EULA (Eds.), Novissimo Digesto Italiano, Vol. 3, 1053

[15] E. CAPARROS – H. AUBÉ (Eds.), Code of Canon Law Annotated, 1083

[16] Can. 1362 §1. A criminal action is extinguished by prescription after three years, except for:

2˚ an action arising from any of the offences mentioned in cann. 1394, 1395, 1397, 1398, which is extinguished after five years.

[17] E. CAPARROS – H. AUBÉ (Eds.), Code of Canon Law Annotated, 226.

[18] J. OTADUY, “The obligations and rights of cleric, Can. 277,” in A. MAORZA – J. MIRAS – R. RODRIGUEZ-OCAÑA (Eds.), Exegetical Commentary on the Code of Canon Law. Vol. II/1, Wilson & Lafleur, Canada 2004, 346.

[19] Ibid. 349.

[20] E. CAPARROS – H. AUBÉ (Eds.), Code of Canon Law Annotated, 530.

[21] G. DI MATTIA, “The Obligations and Rights of Institutes and their Members, Can. 666” in A. MAORZA – J. MIRAS – R. RODRIGUEZ-OCAÑA (Eds.), Exegetical Commentary on the Code of Canon Law. Vol. II/2, Wilson & Lafleur, Canada 2004, 1776.

[22] E. CAPARROS – H. AUBÉ (Eds.), Code of Canon Law Annotated, 753 – 754

[23] C. DEZZUTO, “Delicta reservata contro la fede e contro i sacramenti” in A D’AURIA – C PAPALE (Eds.), Quaderni di Ius Missionale 3, Urbaniana University Press 2014, 61.

[24] C. PAPALE, Lecture on “Le Sanzioni nella Chiesa.” Pontifical Urban Univeristy, Rome. 7 /1/2015.

[25] J. BEAL – J. CORIDEN – T. GREEN (Ed), New Commentary on the Code of Canon Law, 1591.

[26] V. DE PAOLIS – A. D’AURIA, Le Norme Generali. Commento al Codice di Diritto Canonico. Libro Primo. Urbaniana University Press, Roma 2008, 349.

[27] Ibidem. 29 – 30.

[28] C. PAPALE, “I delitti contro la morale.”, in A D’AURIA – C PAPALE (Eds.), Quaderni di Ius Missionale, 3, Urbaniana University Press 2014. 33 – 34.

[29] E. CAPARROS – H. AUBÉ (Eds.), Code of Canon Law Annotated, 1083.

[30] Ibidem. 1083.

[31] J. BURKE, A Dictionary of Canon Law. An African inculturated edition. Paulines Publications Africa, Nairobi 2014, 78.

[32] F. ROCCA, “Contumacia” in A. AZARA – E. EULA (Eds.), Novissimo Digesto Italiano, Vol. 3. Editore Torinese, Torino 1957, 786.

 

[33] F. ROCCA, “Contumacia” in A. AZARA – E. EULA (Eds.), Novissimo Digesto Italiano, Vol. 3. 786.

[34] V. DE PAOLIS, “The application of penalties. Can. 1347”, in A. MAORZA – J. MIRAS – R. RODRIGUEZ-OCAÑA (Eds.), Exegetical Commentary on the Code of Canon Law. Vol. IV/1, 383.

[35] V. DE PAOLIS, “The application of penalties. Can. 1347”, in in A. MAORZA – J. MIRAS – R. RODRIGUEZ-OCAÑA (Eds.), Exegetical Commentary on the Code of Canon Law. Vol. IV/1, 383.

[36] E. CAPARROS – H. AUBÉ (Eds.), Code of Canon Law Annotated, 1050.

[37] V. DE PAOLIS, “The application of penalties. Can. 1347”, in in A. MAORZA – J. MIRAS – R. RODRIGUEZ-OCAÑA (Eds.), Exegetical Commentary on the Code of Canon Law. Vol. IV/1, 384.

[38] Canon 1358.

[39] L. MILLER, “Scandal” in THE NEW CATHOLIC ENCYCLOPEDIA, Jack Heraty & Associates, Inc., Palatine 1981, 1112.

[40] SUMMA THEOLOGICA IIa-IIae, Q. 43, A. 1: “…dictum vel factum minus rectum praebens occasionem ruinae sit scandalum…

[41] Ibidem, 633.

[42] Can. 1357.

[43] G. DI MATTIA, “Offenses against special obligations”, in A. MAORZA – J. MIRAS – R. RODRIGUEZ-OCAÑA (Eds.), Exegetical Commentary on the Code of Canon Law. Vol. IV/1, 547.

[44] C. PAPALE, Lecture on “Le Sanzioni nella Chiesa.” Pontifical Urban Univeristy, Rome. 29/10/2015.

[45] E. CAPARROS – H. AUBÉ (Eds.), Code of Canon Law Annotated, 1021.

[46] Ibidem. 1021

[47] Ibidem. 1049

[48] E. CAPARROS – H. AUBÉ (Eds.), Code of Canon Law Annotated 1041

[49] Communicationes, 9 (1977) 153. Hodiernas conditiones attendentes, in quibus etiam laici ad plura officia deputantur, quae antea solis clericis reservabantur.

[50] J. BERNAL, “Censures”, in A. MAORZA – J. MIRAS – R. RODRIGUEZ-OCAÑA (Eds.), Exegetical Commentary on the Code of Canon Law. Vol. IV/1, 336.

[51] Ibidem. 336.

[52] J. BEAL – J. CORIDEN – T. GREEN (Ed), New Commentary on the Code of Canon Law, Paulist press, New York 2000, 1552.

[53] Ibidem. 1552.

[54] L. CHIAPPETTA, Il Codice di Diritto Canonico. Commento giuridico-pastorale 2. Dehoniane, Roma 2011, 695.

[55] J. BEAL – J. CORIDEN – T. GREEN (Ed), New Commentary on the Code of Canon Law, 1552.

[56] J. BERNAL, “Censures”, in A. MAORZA – J. MIRAS – R. RODRIGUEZ-OCAÑA (Eds.), Exegetical Commentary on the Code of Canon Law. Vol. IV/1, 336.

[57] V. DE PAOLIS, “The application of penalties. Can. 1349”, in A. MAORZA – J. MIRAS – R. RODRIGUEZ-OCAÑA (Eds.), Exegetical Commentary on the Code of Canon Law. Vol. IV/1, 387.

[58] Ibidem. 387.

[59] Can. 2286¹.

[60] E. CAPARROS – M. THÉRIAULT – J THORN (Ed), Code of Canon Law Annotated, 1022.

[61] E. CAPARROS – M. THÉRIAULT – J THORN (Ed), Code of Canon Law Annotated,1043.

[62] G. INCITTI, Il popolo di Dio. La struttura giuridica fondamentale tra uguaglianza e diversità. Urbaniana University Press. Roma 2009, 178.

[63] A. D’AURIA, “La procedura per l’irrogazione delle pene”, in A. D’AURIA – C. PAPALE (Eds.), Quaderni di Ius Missionale, 3, Urbaniana University Press 2014, 145.

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