Folia Canonica 10. (2007)
STUDIES - Péter Artner: The Canonical Protection of the Dignity of the Sacrament of Penance in the Penal Law
88 PÉTER ARTNER The canon says: “The following incur a latae sententiae interdict, or if a cleric, a latae sententiae suspension ... a person, who ... (1) though unable to give valid sacramental absolution, attempts to do so, or (2) hears a sacramental confession.” In the first part of the paragraph, according to the text, it seems to be evident, that the perpetrator of this offence can be a priest, a deacon or a lay person. However, De Paolis notes, that the text is to be interpreted differently: he who commits the offence, is a person who “ sacramentalem absolutionem dare valide nequeat”, that is who is “unable to give valid sacramental absolution”; and only a priest is able to give valid sacramental absolution. This means that this canon speaks about the priests, who are usually able to give sacramental absolution, but in this situation cannot give it, due to an obstacle. Furthermore: it is a penal offence, if someone “eam impertire attentat” - “attempts to do so”. Only a person who is normally able to do so can attempt to do anything, but is not able to do it in the certain situation because his ability is missing (deest habilitas personae) or he is under a lex irritans.1 A priest cannot give valid sacramental absolution if he never had faculty, or had the faculty but it expired or was revoked, or he does not have the faculty to absolve certain persons or does not have it in certain territories, or there is such an obstacle that makes the absolution invalid. This means that this offence, the attempting to give sacramental absolution, can be perpetrated only by priests. It is an attempt of sacramental absolution, if the priest recites the words of the absolution, which would be valid by itself, but is not because of the above mentioned causes. The second part of the above mentioned canon is punishment for the hearing of the sacramental confession. This does not refer to eavesdropping beside the confessional, but to someone, who is not able to give valid sacramental absolution, hears the sacramental confession, as normally a confessor would do. The hearing of the sacramental confession refers that a person hears what normally would be part of the confession. The hearing of a sacramental confession does not include the attempt of the absolution. This offence can be committed by anybody who is not a priest {sacerdos). The canon prescribes latae sententiae suspension for clerics and latae sententiae interdict for lays, and to these punishments other penalties, including excommunication, can be added. It has to be mentioned, that if a cleric incurs in latae sententiae suspension, according to 2§ of c. 1334 all the effects of the suspension come into force. It cannot be forgotten that the Church, as mentioned in c. 144 in common error, whether of fact or of law, and in positive and probable doubt, whether of law or fact, supplies the missing faculty, mentioned in c. 966; and c. 976 gives the faculty to all priests in the danger of death to absolve any penitents. 1 1 De Paolis, Delictis contra sanctitatem sacramentum poenitentiae, in Periodica 79 (1990) 183.
