Canonical Questions Over Father Rupnik’s Excommunication and Its Lifting

Canonist Marc Balestrieri reviews important issues that remain in play with respect to the Jesuit priest’s conviction in 2020 of violating the confessional by absolving a person with whom he had engaged in sexual activity.

Father Marko Ivan Rupnik at the 'Aletti' workshop in Rome, Italy on November 2007 working at the realization of a 160 square metres mosaic fresco for the facade of Lourdes Basilica.
Father Marko Ivan Rupnik at the 'Aletti' workshop in Rome, Italy on November 2007 working at the realization of a 160 square metres mosaic fresco for the facade of Lourdes Basilica. (photo: Abaca Press / AP)

After a two-year investigation carried out by the then-Congregation (now Dicastery) for the Doctrine of the Faith (CDF), Jesuit Father Marko Ivan Rupnik was unanimously found guilty of violating the confessional by absolving an Italian novice with whom he had engaged in sexual activity.

After the 2018-2020 enquiry, the CDF declared him formally excommunicated for the crime, committed in 2015, in May 2020. The censure was lifted in the same month, according to the Society of Jesus.

Much of the recent controversy surrounding Father Rupnik, who is an internationally renowned artist, centers on allegations that he sexually assaulted and manipulated women religious in the community in Slovenia he helped to establish, in the late 1980s and early 1990s — charges the CDF dropped because the statute of limitations had expired. But many aspects of this other offense, involving the confessional, remain shrouded in mystery.

And on Feb. 21, the Jesuit order published a statement that said it was opening a new internal procedure to address new allegations with a “very high” degree of credibility alleging misconduct by Father Rupnik, involving 14 adult women and one adult man. During the procedure Father Rupnik will be subject to substantial restrictions, the statement said.

But key aspects of Father Rupnik’s excommunicable offense, involving the novice and the confessional, also remain in play — including whether sufficient time elapsed between the imposition of the excommunication and its subsequent lifting for authentic repentance and reparation to have taken place.

In this Feb. 14 interview, canonist Marc Balestrieri explains the correct procedure for such a case and analyzes whether the protocols were properly followed. He notes, for example, that judgments in these types of cases are intentionally not publicized, so as not to bring scandal to the sacrament of reconciliation or discourage the faithful from making a good confession.

At the same time, however, he says that the “many remaining unknowns” of the case “are troubling,” most significantly the perception that Father Rupnik has been shown favoritism on account of his prominence and his association with the Jesuits. The swiftness of the proceedings has led some to conclude that Pope Francis personally lifted Father Rupnik’s excommunication shortly after the dicastery issued its judgment. Pope Francis has the clear authority to do so, Balestrieri explains; such an intervention would be both “extraordinary” and problematic, since it might create the perception, true or not, that Francis may have shown favoritism to a fellow Jesuit. However, Pope Francis has denied having anything to do with the case, according to an interview he gave to The Associated Press in January, except to direct the two separate cases to be processed in the same tribunal.

“For the sake of juridical certainty and the stability of jurisprudence in future cases, it is important that justice not only be imparted fairly and equally to all of Christ’s faithful, but be seen by the faithful to be imparted fairly and equally,” says Balestrieri, a former staff canonist in service of the Holy See who now operates Canonical Aid, a private canon law practice based in Madison, Wisconsin.

What is the canonical crime that Father Rupnik committed?

Father Marko Rupnik was found guilty by the Society of Jesus, with punishment decreed by the Congregation for the Doctrine of the Faith, of having committed the canonical crime of absolution of an accomplice in a sin against the Sixth Commandment, a violation of Canons 977 and 1378, § 1 of the Code of Canon Law and Art. 4, § 1, 1° of the “Emended Norms Against More Grave Delicts,” issued by Pope Benedict XVI in 2010.

The three elements of the delict are a) that the offender was a priest who had the faculty to absolve from the sin against the Sixth Commandment the penitent with whom he committed a grave sin “contra Sextum”; b) that said priest did in fact materially impart absolution from that sin committed with that penitent; and c) that the delict took place outside of the danger of death.

Was Father Rupnik excommunicated for having committed the crime?

Yes. Then Canon 1378, § 1 attached a statutory latae sententiae excommunication reserved to the Apostolic See upon commission of the offence. This means that the crime by nature is so bad that the Church provides that the offender contracts “automatic” excommunication the moment that the three above elements objectively take place, without any need for due process, any judgment, or declaration on the part of the Church.

What process did Father Rupnik undergo that led to his excommunication?

According to a statement released on Dec. 18, 2022, by Father Johan Verschueren, delegate of Father General [Arturo] Sosa and major superior for the international houses of the Society of Jesus, the Curia of the Jesuits received in October 2018 a criminal complaint (“denunciation”) against Father Rupnik for sexual misconduct and the delict against absolution of an accomplice contra Sextum. A preliminary investigation was then ordered to begin. In May 2019, the investigation was closed, with a finding by the competent Jesuit superior that the allegation was verisimilar [appearing to be real or true] (Canon 1717, CIC). As required by Church law, the decree, along with all of the acts of the investigation, was duly transmitted to the Congregation for the Doctrine of the Faith since the crime alleged is reserved to it for examination. Precautionary measures were subsequently placed upon Father Rupnik in June 2019.

In July 2019, the CDF ordered Father Rupnik to be prosecuted by means of an administrative (“extrajudicial”) penal process, meaning that a delegate along with two assessors were appointed by the superior general of the Jesuits to prosecute Father Rupnik. The process, in contradistinction to a judicial penal process, is designed to be more streamlined and expeditious. In January 2020, Father Rupnik was found guilty of having committed the excommunicable offense. A legal opinion of the delegate drafted with the assistance of his assessors (votum), together with all of the acts of the penal process, was then transmitted by the delegate to the CDF for review by multiple expert officials. In May 2020, the highest officials of the Congregation [for the Doctrine of the Faith] decided that Father Rupnik indeed did commit the delict in violation of Canon 1378, §1, CIC, and Art. 4, §1, 1° of the “Emended Norms.” The Congregation [CDF] decided not only to confirm the findings of the Society of Jesus, but also juridically declare the incurrence latae sententiae by Father Rupnik of the excommunication attached to the violation of Canon 1378.

Although the censure of excommunication is a medicinal penalty (whose duration is contingent upon the enduring contumacy, absence of repentance, and reparation for harm done on the part of the offender), a declaration of the censure by the Church of the censure having been incurred by an offender increases the nature of the punishment provided by Canon 1331 §§1-2, CIC, makes it harder for the offender to have his excommunication lifted (cf. Canon 1356/new Canon 1357, CIC), and in fact provides for the excommunicate to be removed physically from celebrating or receiving any sacraments and ministering any sacraments and sacramentals (cf. new Canon 1331, §1, 1°-4°, CIC), or in the alternative the ceremony is to be suspended. Additionally, he is forbidden from exercising any ecclesiastical office, duty, ministry, function or act of governance.

A declaration of having incurred a censure of excommunication, while of public ecclesiastical record, due to the nature of the grave offense involving the sacrament of penance, by long-standing praxis of the Holy See, is not publicized, so as not to bring grave disrepute upon the sacrament of penance and dissuade the faithful from approaching a confessor and benefitting from the sacrament, ordinarily most necessary unto eternal salvation.

What is the procedure for someone like Father Rupnik to have his excommunication lifted?

Since the Congregation for the Doctrine of the Faith canonically prosecuted Father Rupnik in a penal process, and thereafter issued an extrajudicial declaration of guilt on his part, the matter fell into the “external forum” or realm of human action beyond the sphere of internal conscience. As a result, pursuant to new Canon 1357, § 1, CIC, no confessor was able to absolve him of the excommunication within the sacrament of penance. The absolution from the excommunication was reserved to the Congregation for the Doctrine of the Faith.

In order to have had his excommunication lifted, Father Rupnik would have had to demonstrate to the Society of Jesus and the then-Congregation for the Doctrine of the Faith that the conditions for the lifting of the censure referenced in Canons 1358, §1 and 1347, §2, CIC, had been duly met: withdrawal of the offender from contumacy, which requires 1) sincere repentance for the delict of which Father Rupnik was found guilty and 2) due reparation for the injury inflicted and scandal caused by reason of the commission of the crime — or at least his serious promise to do so.

What is the role of the Dicastery for the Doctrine of the Faith regarding the lifting of Father Rupnik’s excommunication?

If someone is declared by ecclesiastical authority to have committed a delict to which is attached the penalty of excommunication, which crime is reserved to the Apostolic See, then only that dicastery, in casu [in this case] the Dicastery for the Doctrine of the Faith — exception made of the pope — alone has the power to absolve the delinquent from the excommunication.

Father Rupnik would have had either a) to write personally or through his superior to the then-Congregation for the Doctrine of the Faith, explicitly requesting that the dicastery lift his excommunication, showing that he had duly fulfilled the conditions set forth in Canon 1347, § 2, CIC, or b) petition the Holy Father directly or indirectly for the same — although for the pope to grant such a request personally, bypassing the Congregation for the Doctrine of the Faith, would be an extraordinary act on his part.

Would the Pope have been involved in the lifting of Father Rupnik’s excommunication?

The Pope does not have to be involved directly and personally because he has empowered the competent dicastery of the Roman Curia to carry out such actions, but he has the power, of course, to supersede any preestablished procedure. According to the transcript of the AP interview, Pope Francis at least knew about the matter.

One aspect that is little noted is the fact that the Holy Father usually meets every week with the prefect for the Dicastery for the Doctrine of the Faith and other superiors of the dicastery upon need. It is inconceivable that Pope Francis was not informed by the prefect, Cardinal Ladaria Ferrer, of the status of the conviction of Father Rupnik, or his petition to be absolved from his excommunication, unless Father Rupnik had succeeded in bypassing the congregation and obtaining directly from Francis absolution from his declared excommunication.

Given the celerity with which Father Rupnik obtained the absolution from his excommunication, it is entirely possible that he simply approached Pope Francis directly and had his request mercifully granted without any further ado.

Would such an action be legitimate?

A “legitimate” act in canon law means one done in compliance with the applicable norms that have been promulgated by the lawgiver. In the Rupnik case, the conditions needing to be satisfied by Father Rupnik in order for him to obtain the remission of his excommunication are found in Canons 1358, par. 1 and 2, and 1347, par. 2, of the Code of Canon Law. If he satisfied all of the conditions stipulated, then the lifting of the excommunication by the Church would be legitimate.

Do you see any canonical problems with the Rupnik case?

The many remaining unknowns of Father Rupnik’s case are troubling. What other consequences, if any, apart from the latae sententiae excommunication, did Father Rupnik suffer? Was the confidential declaration of the incurrence of latae sententiae excommunication reserved to the Apostolic See, absolved from within a mere couple of weeks either by Pope Francis or the Congregation for the Doctrine of the Faith, sufficient time for genuine resipiscence [repentance] and reparation on the part of Father Rupnik of the very grave harm that he inflicted? Was Father Rupnik ever in violation of the precautionary measures placed upon him, or the grave prohibitions set forth in Canon 1331, §2, CIC, consequent to his excommunication, despite having been a declared excommunicate?

In Father Rupnik’s case, the Society of Jesus has announced that he was placed under certain prohibitions and restrictions for a period of three years to be counted, presumably, from May 2020 onwards. Clerics and lay faithful scandalized by the gravity of Father Rupnik’s sacrilege, abuse of power and serial sexual crimes may find the expiration of the restrictions placed upon him in only three months’ time to be most troubling.