The Consideration on the Age of Criminal Responsibility for Children

Much debate has been made over the appropriate age in which Children are considered to be criminally responsible. This includes the notion of doli incapax, meaning that the individual cannot explicitly comprehend that their actions was seriously wrong. Throughout the Australian legal systems, children under the age of ten are considered to be doli incapax. However, this number significantly changes throughout the world. The appropriate age limit in which children assume responsibility from their criminal actions is ambiguous and subjective. Increasingly in recent times, the distinction between adult justice and youth justice is becoming less and less apparent as adulteration plays an progressively bigger role in the justice system, making it more challenging to define the appropraite age of criminal responsibility.

Juvenile justice is a complex, discursive process in which a number of different ideaologies interrelate to form the many arguments and discussions that urge the criminal justice scope.

In order to understand the appropriate age in which a child may be held responsible for their offences we must first realise what criminal responsibility is.

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Carson & Felthous (2003) argue that criminal responsibility requires four conditions to be met. Firstly, the offender must have committed the proscribed act. Secondly, the action must cause prohibited consequences. Thirdly, there must be a lack of circumstances that would establish a legal defence to any crime charged. And finally, and most importantly in regards to child offenders, the individual must have committed the act in the proscribed state of mind. This is known throughout common law systems as mens rea.

However, similarly to most areas of criminal justice, the concept of mens rea is a hotly debated one and contains a number of grey areas available for interpretation. Chan & Simester (2011) claim that the concept of mens rea serves two primary functions. It is argued that mens rea helps establish the morally innocence or guilt of the defendant’s behaviour, partly by contributing to determining culpability. Additionally, mens rea helps conceptualise the behaviour of the morally wrongful individual by identifying what kind of action they are performing. Mens rea is a vital concept when dealing with offenders, however it is tremendously problematic to regulate the correct age in which a child has the cognitive ability to be ‘in the proscribed state of mind’ to commit an offence.

When a child is deemed to be doli incapax, it refers to the idea that they do not understand that what they did was seriously wrong. As discussed previously, for an act to be considered criminal it must be committed deliberately and with intent. Children under the age of ten are considered to be doli incapax in the Australian legal system, however this age significantly changes throughout the world. In India children over the age of just seven are considered to be criminally responsible. Contrastingly, children over the age of sixteen are considered criminally responsible in Belgium (Weijers & Grisso 2009). The great variance in the minimum age of criminal responsibility between countries around the world demonstrates how subjective the appropriate age to term children criminally responsible can be.

Goldston (2013) draws on reasons for raising the minimum age of criminal responsibility in England, which is currently ten. It is argued that a number of recent literature pieces, primarily deriving from developmental psychology and neuroscience have outlined various social and physiological factors that may influence upon a child’s maturation, cognitive functioning and human development. Goldston raises the question and rightfulness of holding ten year-old children as equally responsible as adults when it comes to criminal proceedings. It is disputed that familiarizing children with the juvenile justice system at just ten years of age impedes the natural process of ‘growing out of crime’. Labelling and adverse social response is likely to lead to further criminal behaviour from the child which in turn will decrease education and employment opportunities. Goldston argues for raising the minimum age of criminal responsibility in England and Wales and also the formation of immunity from prosecution for children and young people.

A number of factors can influence the appropriate age to make children accountable for their criminal actions. These aspects include criteria such as physical development, brain damage, mental disorders, mental and moral maturity, neurotic tendencies, relationships with others, self-worth, frustration tolerance, puberty and possible situational influences that may play a part (Weijers & Grisso 2009). Childhood can be described as a socially constructed process and therefore individuals have varying experiences with crime. Taking into account all of these factors, determining the age of criminal responsibility is a difficult task that will come with scrutiny, no matter what the outcome.

Although the minimum age of criminal responsibility seems to be quite young in a number of jurisdictions, youths will not necessarily be prosecuted immediately from this age. A second period in between unconditional doli incapax and full criminal responsibility is present in a number of countries and this is called conditional criminal responsibility, whereby the presumption of doli incapax is existing. In Australia, this period exists from those children aged ten to fourteen. This means that individuals within this age bracket are assumed to not understand that their actions were seriously wrong, resulting in the majority of criminal cases not being pursued. However, if there is significant evidence that the individual has the ability to form mens rea then the case may be followed and the child may be prosecuted. Apler (2000) explains that there is no direct method of examining whether a child has the ability to form mens rea or not. Expert evaluation of the perpetrator can provide indication of understanding which may support the court in determining whether the presumption of doli incapax of those aged ten to fourteen in Australia is rebutted. Smith (1994) states that this presumption of doli incapax has been eradicated in England as it is outdated and no longer applies to the changing conditions of society. Furthermore, Smith articulates that the rule was too ambiguous and it was too difficult to ascertain what evidence will suffice to rebut the presumption of doli incapax.

Maher (2005) furthered comments on the concept of doli incapax and questioned it’s validity within a modern day society. Maher studied the various ways in which age can interact with criminal responsibility and concluded that most research complete prior was focused on a child’s ability to possess mens rea, and at which ages a child might lack the type of personhood that is necessary for applying criminal guilt on them. Additionally, Maher goes on to argue that neither of these concepts are entirely relevant and valid or have a solid foundation that has been implied by previous research. Maher contends that age is an important factor as it poses problems for the methods and processes that the criminal justice system uses to achieve its objectives. Much of Maher’s inspiration was founded in The Scottish Law Commission (2002) report in which it was argued that the age of criminal responsibility should be process based, rather than identifiable, predetermined age limits. It reasons against the presumption in which no child under the age of 8 (the age of criminal responsibility in Scotland) can be subjected to criminal proceedings is not a reflection of any observable fact. Furthermore, it goes on to say that the age of criminal responsibility is a meaningless term and instead this age should be labelled as the minimum age for prosecution.

Adulteration refers to the process by which adult justice and youth justice becomes less defined. Youth justice continually seeks the comprise between youth as a special deserving case that is separate from adult justice, and youth as fully responsible for their own actions. The projection of delinquent children as being in need of guidance has seen many aspects of child development subject to regulation, surveillance and inspection. Specifically, through processes of normalisation, to assist in reforming a delinquent child in order to benefit society. However, since the 1960s a penal-welfare framework has been undermined by developments of neo-liberal governance which is influence by punitive rationalities. A shift towards less emphasis on social contexts, protection and rehabilitation and more emphasis on individual responsibility has taken place. Muncie & Hughes (2002) exemplify numerous researchers whom have remarked on the erosion of the juvenile justice system as a social welfare agency targeting rehabilitation. This is primarily demonstrated in the United Kingdom where the abolition of the presumption of doli incapax was made effective in 1998. The Adulteration process began to be of more significance as juvenile offenders were becoming progressively subjective to adult processes.

The age of criminal responsibility and its interrelating ideologies and theories is a complex model, causing much deliberation over the appropriate way, and ‘correct way’ to deal with this issue. However, it is impossible to unquestionably determine the ideal way to handle this issue. Nation states around the world share differing opinions on what is going to result in the best outcome for their collective society. However, the concept of doli incapax itself is commonly agreed to be a fundamental part of the criminal justice system. Although children in Australia are considered to be doli incapax until the age of ten, the age of fourteen is equally as significant as doli incapax is presumed until this age. Doli incapax presumption almost undermines the age of criminal responsibility, as this is not the age where children are immediately prosecuted. The ongoing process of adulteration also plays an important role in the juvenile justice system as the boundaries between youth justice and adult justice become unclear. This may have vital implications on the future of criminal justice around the world. Almost all areas of crime and criminal justice are abstruse and the age of criminal responsibility is not an exception.