The canonical crime of solicitation is likely more widespread than many may suppose.
All would agree that if a given piece of advice is bad in the confessional, then a priest’s giving it to a penitent would be, at a minimum, a failure in pastoral care. Depending on circumstances, a priest’s proffering of bad advice in confession might even, as a violation of charity or justice, be sinful. But, that the giving of bad advice in confession could be a crime under Church law would be startling. And yet, exactly this reading of Canon 1387 of the 1983 Code of Canon Law is required, I suggest, in light of sound canonical tradition and recent Roman curial norms.
Canon 1387 states: “A priest who in the act, on the occasion, or under the pretext of confession solicits a penitent to sin against the sixth commandment of the Decalogue is to be punished, according to the gravity of the delict, by suspension, prohibitions, and privations; in graver cases he is to be dismissed from the clerical state.” The image of solicitation that springs to mind here is, of course, that of a priest using the confessional to propose carnal liaisons to a female penitent.1 To be sure, such reprehensible behavior is criminalized by Canon 1387. But neither the text of Canon 1387 (specifically the phrase, “solicits a penitent to sin against the sixth commandment of the Decalogue”) nor the tradition behind the modern canon construes the crime of solicitation that narrowly.
First, the canonical crime of solicitation is not limited to cases wherein a confessor’s bad advice given is only toward a penitent’s sexual misconduct with the priest himself. John Martin, commenting on Canon 1387 in the British-Irish canonical commentary Letter & Spirit (1985) at 799, observes: “The offence is committed whether the priest encourages the penitent to sin either with the priest himself or with any third party.” Thomas Green, writing in the 2000 CLSA New Commentary (at 1591), agrees: “The delict might also be verified if the solicited sexual activity involves the penitent and a third party, not necessarily the priest and the penitent.” And Leon del Amo in the 2004 Code of Canon Law Annotated (at 1077), notes: “The offense consists in soliciting the penitent to sin against the sixth commandment, either with the person soliciting or with a third party.” No commentator on the 1983 Code disputes the understanding of solicitation in Canon 1387 as embracing not only a confessor’s advice toward sexual sin between the penitent and the confessor himself, but also between the penitent and a third party. But to see clearly how a confessor’s giving a penitent objectively immoral advice, even if such advice is directed toward the solitary acts of the penitent alone, can also constitute a form of solicitation, a review of canonical commentary on the crime of solicitation under the earlier, 1917 Code, is helpful.