Defense of infancy
|Part of the common law series|
|Other common law areas|
The defense of infancy is a form of defense known as an excuse so that defendants falling within the definition of an “infant” are excluded from criminal liability for their actions, if at the relevant time, they had not reached an age of criminal responsibility. After reaching the initial age, there may be levels of responsibility dictated by age and the type of offense committed.
Under the English common law the defense of infancy was expressed as a set of presumptions in a doctrine known as doli incapax. A child under the age of seven was presumed incapable of committing a crime. The presumption was conclusive, prohibiting the prosecution from offering evidence that the child had the capacity to appreciate the nature and wrongfulness of what they had done. Children aged seven to under fourteen were presumed incapable of committing a crime but the presumption was rebuttable. The prosecution could overcome the presumption by proving that the child understood what they were doing and that it was wrong. In fact, capacity was a necessary element of the state’s case. If the state failed to offer sufficient evidence of capacity, the infant was entitled to have the charges dismissed at the close of the state’s evidence. Doli incapax was abolished in England and Wales in 1998, but persists in other common law jurisdictions.
The terminology regarding such a defense varies by jurisdiction and sphere. Instances of usage have included the terms age of accountability, age of responsibility, age of criminal responsibility and age of liability. The rationale behind the age of accountability laws are the same as those behind the insanity defense, insinuating both the mentally disabled and the young lack apprehension.
The age of criminal responsibility
Governments enact laws to label certain types of activity as wrongful or illegal. Behaviour of a more antisocial nature can be stigmatized in a more positive way to show society’s disapproval through the use of the word criminal. In this context, laws tend to use the phrase, “age of criminal responsibility” in two different ways:
- As a definition of the process for dealing with an alleged offender, the range of ages specifies the exemption of a child from the adult system of prosecution and punishment. Most states develop special juvenile justice systems in parallel to the adult criminal justice system. Here, the hearings are essentially welfare-based and deal with children as in need of compulsory measures of treatment and/or care. Children are diverted into this system when they have committed what would have been an offense as an adult.
- As the physical capacity of a child to commit a crime. Hence, children are deemed incapable of committing some sexual or other acts requiring abilities of a more mature quality.
Thus, each state is considering whether any given child has committed an offense, and given that answer, what the most appropriate measures would be for dealing with a child who has done what this child did. It is noted that, in some states, a link is made between infancy as a defense and defenses that diminish responsibility on the ground of a mental illness. Distinctions between children, young offenders, juveniles, etc. are used to denote matching levels of incapacity. The majority view is that this linkage is not constructive in that it implies that children are in some way mentally defective whereas they merely lack the judgment that comes with age and experience.
This is an aspect of the public policy of parens patriae. In the criminal law, each state will consider the nature of its own society and the available evidence of the age at which antisocial behaviors begins to manifest itself. Some societies will have qualities of indulgence toward the young and inexperienced, and will not wish them to be exposed to the criminal law system before all other avenues of response have been exhausted. Hence, some states have a policy of doli incapax (i.e. incapable of wrong) and exclude liability for all acts and omissions that would otherwise have been criminal up to a specified age. Hence, no matter what the infant may have done, there cannot be a criminal prosecution. However, although no criminal liability is inferred, other aspects of law may be applied. For example, in Nordic countries, an offense by a person under 15 years of age is considered mostly a symptom of problems in child’s development. This will cause the social authorities to take appropriate administrative measures to secure the development of the child. Such measures may range from counseling to placement at special care unit. Being non-judicial, the measures are not dependent on the severity of the offense committed but on the overall circumstances of the child.
The policy of treating minors as incapable of committing crimes does not necessarily reflect modern sensibilities. Thus, if the rationale of the excuse is that children below a certain age lack the capacity to form the mens rea of an offense, this may no longer be a sustainable argument. Indeed, given the different speeds at which people may develop both physically and intellectually, any form of explicit age limit may be arbitrary and irrational. Yet, the sense that children do not deserve to be exposed to criminal punishment in the same way as adults remains strong. Children have not had experience of life, nor do they have the same mental and intellectual capacities as adults. Hence, it might be considered unfair to treat young children in the same way as adults.
In Scotland the age of criminal responsibility is currently eight years, however age of criminal prosecution was raised to 12 in 2010. In England and Wales and Northern Ireland the age of responsibility is ten years and in the Netherlands and Canada, the age of responsibility is twelve years. Sweden, Finland, and Norway all set the age at fifteen years. In the United States, the age varies between states, being as low as six years in South Carolina and seven years in 35 states; 11 years is the minimum age for federal crimes.
As the treaty parties of the Rome Statute of the International Criminal Court could not agree on a minimum age for criminal responsibility, they chose to solve the question procedurally and excluded the jurisdiction of the Court for persons under eighteen years.
Some countries refuse to set a fixed minimum age, but leave discretion to prosecutors to argue or the judges to rule on whether the child or adolescent (“juvenile”) defendant understood that what was being done was wrong. If the defendant did not understand the difference between right and wrong, it may not be considered appropriate to treat such a person as culpable. Alternatively, the lack of real fault in the offender can be recognized by rulings that dispense mitigated criminal sentences or address more practical matters of parental responsibility by adjusting the rights of parents to unsupervised custody, or by separate criminal proceedings against the parents for breach of their duties as parents.
Ages of criminal responsibility by country
The following are the minimum ages at which people may be charged with a criminal offence in each country:
|Afghanistan||7–12||||According to Articles 12 and 45 of the Juvenile Code, children aged 7–12 can be subject to warnings, supervision by social services, or confinement to a rehabilitation centre.|
|Albania||14||||Article 1 of the Code distinguishes between offences and contraventions. Article 12 mandates that the latter (which are less serious) have a higher age limit of 16.|
|Algeria||13||||Children aged 13–18 are subject to attenuated penalties.|
|Angola||14||||Minimum and maximum sentences are reduced by two thirds between 14 and 16, and half between 16 and 18. The needs of rehabilitation and social reintegration are also to be taken into account for under 18s.|
|Antigua and Barbuda||8||||According to Articles 1 and 3 of the Juvenile Act, Courts must have regard to the welfare of those under 16.|
|Australia||10||||Age of criminal responsibility in Australia.
Rebuttable presumption of incapacity of committing crime: under 14.
|Bolivia||14||||Lowered in July 2014 from 16 to 14.|
|Brazil||12||||Juvenile judiciary system for offenders aged between 12 and 18, can be sentenced to a maximum of 3 years of imprisonment; separate juvenile jails. Full criminal responsibility from age 18.|
|Costa Rica||12||||Even though legal procedures and punishment are different for offenders who are under 18, all offenders who are 12 or older may be sentenced to as much as 15 years of incarceration.|
|Croatia||14||||14 for all crimes under the general provisions of the Criminal Code; special provisions may apply for some crimes up to the age 21.|
|Georgia||14||||Section 33 of Criminal code of Georgia defines that minors aged between 14 and 18 can be charged with criminal responsibility by juvenile justice.|
|Germany||14||||Minors between 14 and 18 years are sentenced by juvenile justice. An adult between 18 and 21 years may still be sentenced by juvenile justice if considered mentally immature.|
|Hungary||12||||12 only for premeditated homicide, voluntary manslaughter and bodily harm leading to death or resulting in life-threatening injuries; 14 for other crimes.|
|Iran||9 (girls); 15 (boys)|||
|Ireland||12||||Exception for children aged 10 or 11, who can be charged with murder, manslaughter, rape or aggravated sexual assault.|
|Italy||14||||Juvenile judiciary system for offenders aged between 14 and 18; separate juvenile jails. Full criminal responsibility from age 18.|
|Mexico||12||||Incarceration starting at age 14. Other measures applied for ages 12-13.|
|New Zealand||10||||Rebuttable presumption of incapacity until age 14. Children aged 10 and 11 can only be convicted of murder or manslaughter; children aged 12 and 13 can only be convicted of crimes with a maximum imprisonment of 14 years but this may be increased circumstantially. See Youth justice in New Zealand.|
|Paraguay||14||||Offenders between 14 and 17 can be sentenced to a maximum of 8 years of imprisonment.|
|Philippines||15||||On 23 January 2019, the House of Representatives approved on second reading a bill proposing to lower the minimum age of criminal responsibility from 15 years to 12 years.|
|Singapore||7||||The Penal Code Review Committee is proposing to increase the age to 10.|
|South Africa||10||||The Child Justice Act 75 of 2008 came into effect 1 April 2010. There is a rebuttable presumption that a child between the ages of 10 and 14 lacks criminal capacity.|
|Sudan||7–15||||Children aged 7 to 15 can be held criminally responsible if they have reached puberty.|
|Taiwan||14||Offenders aged 14 to 18 years qualify for reduction of sentence under section 18 of the Criminal Code. The death penalty and imprisonment without term cannot be applied to offenders aged 14 to 18 years.|
|United States||0–11||||At the state level, 33 states set no minimum age of criminal responsibility. For federal crimes, the minimum age of criminal responsibility is 11.|
|Uzbekistan||13–16||||“Persons can be held criminally responsible for all offences committed after they have reached the age of 16, and for intentional killing from the age of 13, and for other specifically named offences from the age of 14. [Criminal Code, Article 17]”|
Child imprisonment is a concept in criminal law where people are considered not old enough to be held responsible for their criminal acts. The main problem in most countries is whether children should be punished as an adult for crimes committed as a juvenile, or if special treatment is a better solution for the offender.
In some countries, a juvenile court is a court of special jurisdiction charged with adjudicating cases involving crimes committed by those who have not yet reached a specific age. If convicted in a juvenile court, the offender is found “responsible” for their actions as opposed to “guilty” for a criminal offense. Sometimes, in some jurisdictions (such as the United States) a minor may be tried as an adult.
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