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.
Contents
- The age of criminal responsibility
- Discussion
- Ages of criminal responsibility by country
- Child imprisonment
- Juvenile courts
- References
Under the English common law the defense of infancy was expressed as a set of presumptions. 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 he 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 he was doing and that it was wrong. Children fourteen and older were presumed capable of committing a crime. However, the child could rebut this presumption by establishing that because of his immaturity he was incapable of understanding what he had done or the wrongfulness of his conduct.
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.
Discussion
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:
Child imprisonment
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.
Juvenile courts
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.