Canonical crimes and penalties

A crime is not a sin

Book VI of the Code of Canon Law was rewritten by Pope Francis in 2021 (Pascite gregem Dei, in force 8 December 2021). It rests on a careful definition. A canonical crime, called a delict, is an external violation of a law or precept that is gravely imputable to the person by malice or culpability c. 1321 §2.

First, the violation must be external. A thought, a desire, a private struggle is never a delict, however serious it may be before God. Second, there has to be a law or precept that actually names the conduct, read strictly c. 18: the Church cannot punish something simply because it is wrong. Third, the act must be gravely imputable: the person knew what they were doing and chose it (malice), or failed in a duty of care where the law expressly punishes negligence (culpability) c. 1321 §3.

A sin is a different kind of statement: a judgment about a person’s relationship with God, which the Church leaves to the confessional and to God. Penal law judges acts, never souls. Many sins are not delicts, and a delict can be declared without anyone claiming to know the state of the offender’s conscience. I say more about this in Canon law and theology.

Innocent until the contrary is proved

The revised law says it plainly: “Any person is considered innocent until the contrary is proved” c. 1321 §1. Once an external violation is established, the law presumes that it was imputable, but that presumption gives way whenever it “appears otherwise” c. 1321 §4. The faithful also have a stated right not to be punished except according to the norm of law c. 221 §3.

Certain people and situations are excluded from penalty altogether cc. 1322–1323:

• Someone who habitually lacks the use of reason cannot commit a delict at all c. 1322
• A person under sixteen c. 1323, 1°
• Ignorance, inadvertence or error about the violation, where it was without fault c. 1323, 2°
• Physical force, or a chance event that could not be foreseen or avoided c. 1323, 3°
• Grave fear, necessity or grave inconvenience, unless the act is intrinsically evil or tends to harm souls c. 1323, 4°
• Lawful self-defence or defence of another, within due moderation c. 1323, 5°
• Lacking the use of reason at the time, or believing without fault that one of the situations above existed c. 1323, 6°–7°

A second list reduces the penalty rather than removing it: imperfect use of reason, culpable drunkenness, the heat of serious passion, a minor of sixteen or seventeen, grave fear where the act was intrinsically evil, excess in self-defence, grave provocation, and not knowing that a penalty was attached c. 1324 §1. In those cases no automatic penalty binds c. 1324 §3. One door is closed firmly: crass, supine or affected ignorance, the ignorance of someone who did not care to know, counts for nothing c. 1325.

The kinds of penalties

Censures are medicinal. Excommunication, interdict and suspension cc. 1331–1335 aim to bring the person back; a censure cannot validly be imposed without at least one warning and time to reform c. 1347, and once the person has genuinely repented and repaired the harm, its remission cannot be refused c. 1358. Even excommunication does not put anyone outside the Church; it bars them from the sacraments and from office until they return.

Expiatory penalties look backwards, to justice and the repair of scandal. They include orders to reside somewhere, fines, prohibitions on exercising ministry or wearing clerical dress, deprivation of office or faculties, and, for clergy, dismissal from the clerical state cc. 1336–1338. They can be perpetual, though never by decree alone c. 1342 §2. Alongside penalties sit penal remedies and penances: a warning, a correction, a penal precept, a measure of vigilance, or a work of religion or charity cc. 1339–1340. Even when punishing a cleric, the Church must see that he does not lack a decent living c. 1350.

Most penalties are ferendae sententiae: they bind only when a judge or superior imposes them c. 1314. A few are latae sententiae, incurred automatically by the act itself: apostasy, heresy and schism, violence against the Pope, procured abortion, direct violation of the seal of confession, the attempted ordination of a woman, a cleric attempting marriage, and a few others. The law says they are to be few, for outstanding and malicious offences c. 1318, read as narrowly as the words allow.

What the Church punishes

The particular delicts fall into seven groups cc. 1364–1399: offences against the faith and the unity of the Church; against Church authority and the exercise of office, which since 2021 includes the misuse of ecclesiastical goods, bribery and the abuse of office cc. 1376–1378; against the sacraments; against good name and by falsehood, including calumnious denunciation and forged documents cc. 1390–1391; against the special obligations of clergy and religious; against human life, dignity and freedom, where the sexual abuse of minors and of vulnerable persons now sits cc. 1397–1398; and a general norm for grave external violations no canon names, usable only when the gravity of the case and the need to repair scandal demand it c. 1399.

How a case moves

Whichever path is chosen, the accused has the right to know the accusation and the evidence, to a defence and an advocate, and never to be made to confess or to take an oath against himself c. 1728 §2. The Promoter of Justice is the tribunal official who represents the public good: he brings the accusation at trial, and he may appeal if he thinks scandal has not been repaired or justice restored c. 1727 §2. Within a diocese that is my office, and it is why nothing on this site discusses any real case.

A criminal action is generally extinguished three years after the offence; seven years for certain graver offences, including financial delicts and most sexual offences by clergy; twenty years for offences against minors under c. 1398 §1 c. 1362. Offences reserved to the Dicastery for the Doctrine of the Faith follow its own 2021 norms: twenty years, counted from the minor’s eighteenth birthday, and the Dicastery may set prescription aside in an individual case. Under Vos estis lux mundi (2019, updated 2023) reports against bishops and religious superiors go to the metropolitan and the Holy See, and the person investigated keeps the presumption of innocence.

Things that are not penalties

Many people are told they have been “removed from ministry” or that their “faculties have been withdrawn”. Usually this is not a penalty at all. During a process the ordinary may exclude the accused from ministry or office, impose or forbid residence, or bar public participation in the Eucharist, to protect witnesses and prevent scandal c. 1722. They may be imposed only after the promoter of justice has been heard and the accused cited, must be lifted when their cause ceases, and end by law when the process ends. Faculties can also be withdrawn administratively, for cause, by a decree that is open to recourse. A penalty, by contrast, requires a delict proven to moral certainty and a formal sentence or decree. The remedies differ; see Administrative recourse.

Where the system fails people

Accused clergy often find that a “temporary” precautionary measure lasts for years, with no public finding of guilt and no public clearing of their name, and that the administrative route gives them fewer protections than a trial. Complainants often find that the process is confidential, slow, and silent about its outcome; that they are witnesses rather than parties unless they bring a claim for damages c. 1729; and that prescription or a lack of proof ends a case without saying their account was untrue. Both meet the same cause: a small system, with few full-time personnel, trying to be just to two people at once. Penal process is slow because moral certainty is hard to reach honestly, and the innocent pay for that as well as the guilty.