Last week’s post considered those bound by canonical penal law and highlighted exempting, aggravating and diminishing circumstances for penalties. Today’s post focuses on prescription in canon law.
Prescription is a common term in medicine, stemming from the verb ‘to prescribe’ and involving giving instructions for drugs or optical lenses to be used. However, in canon law, prescription has an entirely different meaning. Prescription is “a means of acquiring or losing a subjective right as well as of freeing oneself from obligations” (Can. 197).
In canonical penal law, it means prohibiting the pursuance of criminal action to impose or declare a penalty. Prescription for criminal action means that when the period of time elapses, an action intended to lead to punishment cannot be initiated for a delict. This does not mean that the delict did not happen. Instead, it means that, whilst the offence remains, the right to initiate any action to impose or declare a penalty has been extinguished.
The motive for prescription is the common good and to relieve the offender, who, over time, may have repented and even atoned for the offence. Moreover, as time goes on, remembering the details and circumstances of an offence becomes more difficult, undermining the veracity of the claims and counterclaims and protection of the right of defence. These further make it difficult to arrive at moral certainty about an offence and could lead to an unjust penalty.
Hence, canon 1362 §1 provides that criminal action for delicts is extinguished by prescription after three years. However, there are exceptions. The first category is offences reserved to the Dicastery for the Doctrine of Faith, extinguished after twenty years. They are
Delicts against the faith: heresy, apostasy, and schism
Delicts against the sanctity of the Mass and the Eucharist: The more grave delicts (delicti graviora) against the Eucharist: taking or retaining for a sacrilegious purpose or throwing away of the consecrated species, attempting the celebration of the Mass, simulation of the Mass, concelebration with ministers of ecclesial communities who do not have apostolic succession and do not acknowledge the sacramental dignity of priestly ordination, Consecration for a sacrilegious purpose of one matter without the other or even of both, either within or outside of the Eucharistic celebration
The more grave delicts against the sacrament of penance: Absolution of an accomplice in a sin against the sixth commandment, attempted sacramental absolution or the prohibited hearing of confession, simulated sacramental absolution, solicitation to a sin against the sixth commandment in the act or on the occasion or under the pretext of confession, the direct and indirect violation of the sacramental seal, the recording, made by any technical means or the malicious diffusion through any form of what is said in sacramental confession
The more grave delict of the attempted sacred ordination of a woman
The more grave delict against morals: Sexual abuse of minors and those who habitually have the imperfect use of reason, acquisition, possession, exhibition or distribution of child pornography perpetrated by clerics (Norms Regarding Delicts Reserved to the Congregation for the Doctrine of the Faith, art 2-8)
The Dicastery can derogate the twenty years for all individual cases. This means the criminal action can still be initiated even after twenty years.
The second category is offences for which prescription is extinguished after seven years. They are stealing of ecclesiastical goods or preventing proceeds from being received, alienating (selling or giving away) ecclesiastical goods without prescribed consultation, consent, or permission, grave negligence in administering ecclesiastical goods (Can 1376), simony in the administration of ecclesiastical office or function (Can. 1377), abuse of ecclesiastical power, office or function (Can. 1378), trading or business by a cleric or religious (Can. 1393 §1), a cleric attempting marriage (Can. 1394), a cleric living in concubinage, a public offence against the sixth commandment of the Decalogue by a cleric, a cleric who uses force, threat or abuse of his authority to commit an offence against the sixth commandment or forces someone to perform or submit to sexual acts (Can. 1395), homicide, including abortion, abduction, and mutilation of another (Can. 1397), sexual abuse committed by a religious (Can. 1398 §2).
Prescription for criminal action runs from the day the delict was completed (terminus ad quo) to the completion of the number of required years (terminus ad quem) stipulated in the law. However, if the delict is habitual or continuous, prescription runs from the day the action ceased to the completion of the number of required years (cf. Can. 1362 §2). In the sexual abuse of minors, prescription begins on the day the minor reaches eighteen years (Norms Regarding Delicts, art 8 §2).
In civil law, the statute of limitation is analogous to prescription. The Supreme Court of Nigeria, in the case Adamawa State & Ors v. the Federation, states: “A statute of limitation removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute-barred, that is, if such a cause of action is instituted outside the statutory period allowed by such law. Another way of stating the above proposition is that any action that is commenced after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law.”
Next week begins discussions on particular delicts, especially as they play out within the Nigerian context. Please contact me if there are particular delicts that you would like me to discuss in my posts.
May God continue to help us🙏🏾
K’ọdị🙋🏾♂️
