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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 allegedly committed.
The age of criminal responsibility[edit | edit source]
Governments enact laws to label certain types of activity as wrongful or illegal. Behavior 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 in 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.
Discussion[edit | edit source]
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 behavior 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 offence 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 counselling to placement at special care unit. Being non-judicial, the measures are not dependent on the severity of the offence 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 responsibility is eight years, 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, Denmark, and Norway all set the age at fifteen years. In most of the US states, the age varies between states but is normally not lower than 7 years. In Belgium, it is eighteen years. 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 18 years.
Some states 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[edit | edit source]
The following are the minimum ages at which children may be charged with a criminal offence.
See also[edit | edit source]
- Diminished responsibility
- Competency to stand trial
- Forensic psychiatry
- Insanity defense
References[edit | edit source]
- Dalby JT. (1985). Criminal liability in children. Canadian Journal of Criminology 27: 137–145.
- Children in the US Justice System. Amnesty International USA).
- Saving a generation of young people by Dr Don Brash, Justice, 2005
- Old enough to be a criminal?. UNICEF United Nations Children's Fund).
- The Children's Hearings System of the Scottish Governments official website
- "Age of criminal responsibility will raise to 12", Scotland on Sunday, accessed 23 April 2009
- "Can children be criminals?", BBC, accessed 16 June 2009
- Ages of criminal responsibility in Australian jurisdictions, Australian Governments official website
- The Children and Young Persons Act 1933 (23 & 24 Geo.5 c.12), section 50; as amended by The Children and Young Persons Act 1963 (c.37), section 16(1) 
- Young offenders section of the UK Governments official website
- Report on the Draft Justice (NI) Bill of the Northern Ireland Assembly's official website
- Criminal Code of Canada, s. 13; may received reduced sentencing under the Youth Criminal Justice Act until age 18.
- Children and the criminal justice system in Ireland, Irish Government official website
- StGB §19
- Japanese Penal Code (Act No.45 of 1907), article 41 
- [http://noticias.juridicas.com/base_datos/Penal/lo5-2000.html Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores español:
- Penal Code 3:1 § (39/1889, as changed by 515/2003). Retrieved 10-31-2007.
- Teen gangsters in bullet-proof vests, The Copenhagen Post, October 5, 2009
- Penal Code Almindelig borgerlig Straffelov (Straffeloven) § 46 (changed of law 12 Jun 1987 nr. 51). Retrieved 19/7 - 2007.
- Rome Statute of the International Criminal Court Article 26.
- Maher, Gerry. "Age and Criminal Responsibility. 2005 Vol 2. Ohio State Journal of Criminal Law. 493 
- CRC Country Reports (1992-1996); Juvenile Justice and Juvenile Delinquency in Central and Eastern Europe, 1995; United Nations, Implementation of UN Mandates on Juvenile Justice in ESCAP, 1994; Geert Cappelaere, Children's Rights Centre, University of Gent, Belgium.
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