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 lMPUTABILITY AND PUNISHABILITY

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concerns the juridical punishability; the responsibility of sin is on the internal forum of God.

The burden of proof rests with the perpetrator of the violator, if he was imputable or not, because the imputability is presumed. Actually, if he is habitually not imputable, habitually lacks the use of reason, it may be difficult for him to prove that he was not imputable. This is the duty of the lawyers and experts and the decision is made by the judge or the ordinary.

The burden of persuasion, i.e. of proving guilt beyond reasonable doubt, may be relieved on the evidential burden: we have seen one way in which this can be seen, i.e. when it has been shown that the accused has done an act that is in violation of the law, the evidential burden shifts to the accused to show by evidence how imputability may be lacking. We may say in fact with justice of a “psychical presumption of imputability” in common law that can be rebutted by the accused bringing forward evidence nisi aliter apparent. This canon does not deal with those persons who so completely lack the use of reason that he or she could not be thought at some time to be able to act lucidly. In such lucid cases their acts could be morally imputable to them.29 30

Dolus seems to presume imputability, because it alters the voluntas, taking it to another level, with liberal and conscient act against a law.’" The lack of imputability can be temporal or perpetual, full or partial. The previous canon deals with not only the perpetual lack of imputability, considering it as incapacity, because it mentions the habitual lack of the use of reason with some lucid intervals, where the person’s imputability could have been sound.

Canon 1323 deals with various violators of the law who are normally in possession of their faculties. This canon lists those exempting circumstances which can basically alter the imputability. If the act of the offender was so much modified by external factors (diminished) that his act was not an actus humánus but merely an actus hominis, the offender cannot be punished.

The Code of Canon Law articulates various factors influencing imputability, some within an individual’s control (e.g., culpable drunkenness) and others beyond such control (e.g., grave fear).31 In order to be guilty of an offense the person must have performed a human act, i.e. knowingly and willingly violated the law. either by doing something forbidden or by omitting something commanded by a penal law or percept. The degree of extent of the person’s knowledge and freedom in acting affects the individual’s guilt; i.e. moral responsibility or imputability, even psychical imputability. The present Code distinguishes between

29 Marzoa, Á. - Miras, J. - Rodríguez-Ocana. R. (ed.), Esegetica! Commentary, IV/]. 275 (MarZOA. Á.).

30 De Paolis, V. - Cito, D., Le sanzioni nella Chiesa, 139.

31 Beal. J. P. - Coriden, J. A. - Green, T. J. (ed.), New Commentary, 1540 (Green, T. J.).