Folia Theologica et Canonica 6. 28/20 (2017)
IUS CANONICUM - Peter Artner, Psychical imputability and punishability in the current penal system of the Canon Law
PSYCHICAL IMPUTABILITY AND PUNISHABILITY... 229 anyone to enter into the psychological or moral intimacy of a person without having obtained that person’s absolutely free consent. (2) The psychologist must not reveal to a third party the knowledge which he may arrived at concerning the interested party’s psychological or moral intimate life.'’ In Penal Law, Can. 1321 § 1 prescribes: “No one is punished unless the external violation of a law or precept, committed by the person, is gravely imputable by reason of malice or negligence.” This sentence somehow alters the basic definition of presumption of innocence6 7 * 9 10 11 in the sense of the common law tradition, but does not alter it completely. The rule, that the prosecution must do the work of proving the guilt of the alleged offender beyond the reasonable doubt is somehow changed. The presumption of imputability means concretely that the alleged offender, the passive subject of the penalty" has the burden of proving his lack of imputability. This imputability is one of the most important conditions in connection with the application or non-application of a penalty. It belongs to the subjective side of the penal law, which means it affects the offender’s personality, not the delict (objective side) and not the law or precept (legal side).1' In the Canonical Penal system the “objective responsibility” by itself cannot be the sole basis for punishment. There must be always both moral"1 and judicial imputability". In addition, penal imputability and habitual use of reason must also be present.12 Pope Pius XII explained clearly the principle of a penal law, which presupposes the guiltiness of the offender, at least that the offender was imputable at the time of the delict. In penal law causality and the resultant effect are only imputable if accompanied by culpability. If the imputability cannot be proven the old maxima “in dubio pro reo" comes into force. To prevent this misunderstanding basically the imputability is to be presumed and the contrary has to be proven. It is very important to keep in mind that the presumability is stronger than the possibility. If somebody is possibly imputable, that is not proven at all. If he is presumed to be imputable, his guilt is not proven but the law presumes his guiltiness, and the contrary is to be proven. 6 MacDonald, S., The Use of Psychological Testing in Light of Graviora Jelicta Cases, in Dugan, P. (ed), Advocacy Vademecum, Montréal 2006. 24. 7 Praesumptio iuris sed non de iure. * De Paolis, V. - Cito, D., Le sanzioni nella Chiesa, Commento al Codice di diritto Canonico Libro VI, Città del Vaticano 2001.2 137. 9 Beal, J. P.— Coriden, J. A.- Green, T. J. (ed.), New Commentari’ on the Code of Canon Law, New York-Mahwah 2000. 1540 (Green, T. J.). 10 Although the expression moral “imputability” is not used any more in the present Code, cf. Communications!! 8 (1976) 175. The new expression is “graviter”. 11 Otaduy, J. - Vi ana, A. - Sedano, J„ Diccionario General de Derecho Canònico, IV. Pamplona 2012. 462 (Santos Diez, J. L.). 12 Marzoa, Á. - Miras, J. - RodrIguez-Ocana, R. (ed.), Esegetica! Commentary on the Code of Canon Law, Montreal - Chicago IL. 2004. IV/1.264 (Marzoa, Á.).
