Last week’s post began the discussion on the ninth principle that influenced the 1983 Code of Canon Law. It explained that the Church cannot renounce penal law because it must safeguard and promote the good of the community itself, bearing in mind the restoration of justice, the reform of the offender, and the repair of scandal (Can. 1311 §2). Today’s post considers the second part of the ninth principle: Latae sententiae and ferendae sententiae penalties.
As a recap, the ninth principle reads, “As an external, visible and independent society, the Church cannot renounce penal law. However, penalties are generally to be ferendae sententiae and are to be inflicted and remitted only in the external forum. Latae sententiae penalties are to be reduced to a few cases and are to be inflicted only for the most serious offences.”
Latae sententiae means “of a sentence (already) passed”. Hence, once one commits a delict (offence) with such a penalty attached, the person automatically incurs the penalty immediately, even without a trial. The subsequent trial for such cases is to declare that the sentence has been passed and see to their execution in the external forum. On the other hand, ferendae sententiae means “of sentence to be passed.” Here, the penalty is not binding on the offender until there is a trial and a sentence passed (Can. 1314).
In line with last week’s discussion, many opposed the continued existence of latae sententiae penalties, both before and especially after the Second Vatican Council. One notes that the Code of Canon Law of Eastern Churches, promulgated in 1990, completely excludes latae sententiae penalties.
However, most canonists in the Latin Church rejected this, arguing that it is not the offender who judges and that the offender is not condemned alone, since in latae sententiae penalties, it is the law itself that does this function. Moreover, the law itself establishes that automatic penalties should be applied to certain offences. Pope John Paul II, while reemphasising the latae sententiae excommunication for abortion, maintained that “the Church makes clear that abortion is a most serious and dangerous crime, thereby encouraging those who commit it to seek without delay the path of conversion” (Evangelium Vitae, 62).
Hence, canonists emphasise the need to continue imposing automatic penalties, given the peculiarity of the penal canonical law system, which requires that crimes of extreme gravity, of deep wickedness, of widespread scandal, and of other significant social damage be punished immediately.
If the timescales of a trial were followed, which are necessarily prolonged to ascertain the existence of the offence and the imputability of the accused, the wound to the Christian community would be allowed to expand, without yielding any advantage in ascertaining the truth or in securing justice towards the guilty party. An instance is that the absence of a swift automatic penalty for consecrating a bishop without a pontifical mandate can generate schism with subsequent ordinations of those who have severed full communion with the Church and the celebration of the sacraments.
Furthermore, many canonists argue that many of the delicts in the Church are occult, that is, by their nature, they are done in secret. An instance is the absolution of an accomplice in the sin against the sixth commandment in sacramental confession, punished with a latae sententiae excommunication reserved to the Apostolic See. (Can. 1384).
If automatic punishment had not been contemplated, occult offences would have effectively remained unpunished and could be repeated in the absence of the social brake provided by immediate sanction, causing immense damage that undermines the sanctity of the sacraments, hinders the salvation of the faithful, and harms the good of the entire Christian community.
As the sexual abuse of minors by clerics is a more grave delict reserved to the Dicastery for the Doctrine of Faith, many argue that an automatic penalty could prevent, or at least discourage, the repetition of the crime by encouraging the course of justice. However, it is not among the offences with latae sententiae penalty because of the challenge of a universal definition of sexual abuse, the various forms of sexual abuse, the reality of trigger factors that increase the propensity to commit the delict, and the need to establish that the delict has occurred on a case-by-case basis due to the prevalence of false accusations.
The penal provisions in the 1917 Code of Canon Law were influenced by civil-law models and included 34 instances of latae sententiae penalties. Following the ninth principle and the call for a more pastoral code that prioritises exhortation over coercion, it was reduced to fifteen in the new Book VI of the 1983 Code. It also reduced excommunication from approximately 40 to 10, while aligning penalties with contemporary human rights standards and improving tolerance. The 1983 Code reiterated the ninth principle.
Canon 1318 reads: “Latae sententiae penalties are not to be established, except perhaps for some outstanding and malicious offences which may be either more grave by reason of scandal or such that they cannot be effectively punished by ferendae sententiae penalties; censures, however, especially excommunication, are not to be established, except with the greatest moderation, and only for offences of special gravity.”
Delicts punishable with latae sententiae censures (excommunication) but reserved to the Apostolic See are the use of physical force against the pope (Can. 1370 §1), attempted ordination of women (Can. 1379 §3), profanation of the consecrated species (Can. 1382), absolution of a partner in a sin against the sixth commandment, when not in danger of death (Can. 1384), the direct violation of the sacramental seal (Can. 1386 §1), and consecrating a bishop without a pontifical mandate (Can. 1387).
Delicts punished with latae sententiae excommunication but not reserved to the Apostolic See are the delicts of apostasy, heresy and schism (Can. 1364), and abortion (Can. 1397 §2). Delicts punished with a latae sententiae interdict or, if a cleric, a latae sententiae suspension: use of physical force against a bishop (Can. 1370 §2), attempt at celebrating Mass by one who is not a priest and attempt to or actual hearing a sacramental confession when unable to give valid sacramental absolution (Can. 1379 §1), false denunciation of a confessor for solicitation at the confessional (Can. 1390 §1). A cleric who attempts marriage, even if only civilly, incurs a latae sententiae suspension, while a religious in perpetual vows who does so incurs a latae sententiae interdict (Can. 1394).
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