Good Essay About Minimum Age Of Criminal Responsibility

Introduction

This paper would like to discuss the appropriateness of Australia’s minimum age of criminal liability, which is currently set at 10 years old. Most critics believe that such minimum age is too low or too young. As suggested by the UN Committee on the Rights of the Child, the acceptable age should be set not lower than 12 years old. However, this paper would like to take the stand that there are certain risks in setting the minimum age higher than 10 years old as well as drawbacks in setting it lower. Evidently, setting the minimum age for criminal liability has been one of the most difficult and controversial topic in any legal systems in the world (Weijers, & Grisso, 2009). Most likely, the difficulty to reach a certain consensus regarding the guilt of the accused basing on his age is on the common belief that children, at a certain age level, is mentally incapable of committing crime (Bryan-Hancock, & Casey, 2010). For the same reason, many legal systems adopt a juvenile policy wherein the legal system regards children who commit crime at a certain age a delinquency rather than a criminal offense. While there is a consensus among legal systems that children are incapable of committing crime at a certain age level, there have been conflicting views on what particular age can a child be held liable for a criminal offense. As observed, several countries have different minimum age for criminal responsibility. In the United States, for example, the minimum age for criminal responsibility varies among states. New York and North Carolina are the only two states that have set their minimum criminal age at sixteen, ten states have set their minimum criminal age at seventeen, while the rest of the states in the U.S have set their minimum criminal age at eighteen. Belgium and Luxembourg set their minimum criminal age at 18; Japan, Portugal and Spain at 16; Denmark, Finland, Iceland, Norway and Sweden at 15; Germany and other eastern European countries ad 14; France, Israel and New Zealand at 13; and Canada, Greece and Netherlands at 12. But just like the United Kingdom, the Australian legal system has set the minimum age of crime at ten, one of the lowest among the OECD countries and in the world. Setting the crime age at 10 means that children below ten years old are exempt of any legal issues whatever the gravity of the offense may be while those who are ten and above can be held responsible for a criminal offense.

Parental Approach of Society in Addressing Juvenile Delinquency

The Australian justice system, just like most justice system in the world, takes a parental stance when it comes to juvenile offenders. For the same reason, a nation’s justice system is heavily influenced by its parental culture in disciplining a child. Child development is thereby an important consideration in order to determine if it is already appropriate for the child to be held responsible for his or her wrong doing. Most legal systems agree that the child reaches maturity at the age of 18 wherein he or she is already considered as an adult (Bryan-Hancock, & Casey, 2010). As opposed to adult offenders, specialized institutions have been developed for juvenile offenders for the purpose of rehabilitation instead of punishment. According to observers, the juvenile justice policy in Australia is characterized by three widely accepted assumptions that may be considered as dogmas (Bartels, McGrath, & Weatherburn, 2012). These are: the assumption that contact with the court system increases the risk of further offending; the assumption that restorative justice is more effective than traditional justice in reducing the risk of further offending; and the belief that juvenile criminality is only transient and self-limiting (Bartels, McGrath, & Weatherburn, 2012). In other words, with the right intervention, juveniles will eventually grow out of their tendency to commit crime and become responsible adults. It is for this parental stance of most justice system that a layered structure is established. The age of criminal responsibility is indicative of how an individual should be treated by the country’s legal system. As observed by Bartholomew (2009), “One of the primary rationales behind this division was that crime committed by juveniles occurs for different reasons than that which is engaged in by adults, and that these causal factors can be addressed by prioritizing therapeutic or rehabilitative ideals” (Bartholomew, 2009, p.95). But even if there is a separate facility that houses juvenile delinquents, it could not be denied that those children who have not yet reached adolescence or has not yet experience puberty are physically and mentally different from those who are. Acting as parents, the nation’s legal system must consider these differences. For the same reason, a child aged below 10 could not be made to suffer the consequences of his actions in juvenile institutions as he must be physically and mentally unfit to be subjected to such rehabilitation procedures. On the other hand, a child aged 10 is a close approximation of someone who is already on his adolescence stage, thereby more physically and mentally mature to undergo rehabilitation.

Influence of English Laws on Australian Juvenile Legal System

The credibility of Australia’s juvenile law regarding its minimum age of criminal responsibility rests on its close resemblance to age-old British laws. The belief that children are incapable of committing crime, also known as the doctrine of Doli Incapax, can be traced back during the reign of Kin Ine and King Aesthelstan of England in the 7th and 10th century respectively. Accordingly, a thief may not be spared from punishment if he is aged 12 and above and if the value of the stolen item is more than eight pence. Since this early period, Doli Incapax is already a known doctrine although its implementation is quite informal since there is no system yet that has been implemented to record the birth of individuals officially. Even so, it is generally accepted that at a certain age, a child can be considered blameless for any criminal offense that he or she might have done although this minimum age could not be clearly established. And so the English justice system has been somehow divided into two levels; one that is above a certain age limit and another below, considered to be incapable of having guilt. According to Crofts (n.d.), for a long time, the minimum age of criminal responsibility was set at seven in England until the 20th century when it was raised to eight eventually reaching its current minimum of ten. Being one of the British commonwealths, Australia’s legal system has been heavily patterned with that of England. As observed by Matthews (2001), “Derived from centuries-old English laws, Australian laws ascribe criminal responsibility to children according to their age and their assume level of understanding of the rightness and wrongness of certain acts” (Matthews, 2001, p.3). Just like the prevailing law in England, Australia’s minimum age of crime responsibility is set uniformly at 10 years old although guilt can be disputable if the child is between the ages of 10 to 14. It is also worth noting that the child whose age is between 10 to 14 is presumed as incapable of having criminal intention unless proven by the prosecution that the accused is capable of distinguishing between right and wrong. Those children who are aged 14 and above are held as liable for criminal offense although they are subject to certain measures that is different from adult offenders. Experience wise, Australia’s law regarding its age of criminal responsibility is as time tested since it is based on England’s seasoned laws.

Criticism and Justification of Setting the Age of Criminal Responsibility at Ten

As observed, Australia’s minimum age of criminal responsibility has been largely patterned and influenced by British laws. Among its major contenders is the well-known British lawyer, William Blackstone whose commentaries in England’s common laws suggests that children should not be judged by their age but on their capability to discern between right and wrong by the time they committed the offense. Blackstone emphasized the maxim, “militia supplet aetatem” meaning, “malice supplies the age” (American Bar Association, n.d., p.5). Taking Blackstone’s argument into context, it would appear that an age limit would not apply when it comes to guilt but rather it is determined by the intent or the ability of the offender to determine whether his actions are wrong or right. However, Blackstone’s commentary could not be absolute considering that a child is born without malice until a certain age where he or she is already able to discern between right and wrong. Apparently, this natural way of things or child growth leads to the question of what particular age does a child starts to discern malice. Blackstone acknowledged this stage of child growth as infancy or infant, wherein he draws the line at 7 years old and below. For Blackstone, at this age, the child is considered to incapable of understanding their actions, which means even if an offense is committed, if there’s lack of “vicious will,” no crime is committed (American Bar Association, n.d., p.4). It should be noted though that Blackstone’s minimum age of seven does not have any scientific basis but largely an assumption of the age that a child begins to understand right from wrong. Most scholars have also indicated the difficulty in identifying the exact age where a child learns to discern. As observed, children develop their discernment gradually and at “different and inconsistent rates” (Badenhorst, 2006, p.16). Even so, seven as the minimum age of criminal responsibility became the standard for a long time and was gradually lifted up to ten both in the UK and Australia most likely because of moral, ethical and political pressures especially of international children rights advocates such as the UN Committee on the Rights of the Child. The committee believes that ten, as the minimum age of criminal responsibility, is too low suggesting that the age limit should not be lower than 12 years old.
It should be noted that the discernment for doli incapax has been largely through experience rather than scientific or behavioral studies. As observed by Cipriani (2013), tests no longer have any significant meaning since criminal responsibility is mostly associated with the maturity assessment of a child as determined in court. In setting the minimum age at seven, Blackstone has been largely influenced by cases wherein children aged ten and lower have expressed discernment of the crime that they have committed. As Blackstone observed, “Thus a girl of thirteen has been burnt for killing her mistress: and one boy of ten, and another of nine years old who had killed their companions, have been sentenced to death, and he of ten years actually hanged; because it appeared upon their trials, that the one hid himself, and the other hid the body he had killed; which hiding manifested a consciousness of guilt, and a discretion to discern between good and evil” (American Bar Association, n.d., p.5). There is also widespread belief that some very young children are at risk of being feral. For the same reason, the minimum age of criminal responsibility at ten has found support from the victims of child offenders and their families as in the case of James Bulger, a toddler believed to have been murdered by Jon Venables and Robert Thompson who were both aged 10 when the killing occurred. According to Bulger’s mother, children can be truly evil by 10 and that laws that can deal with these scenarios are indeed needed.

Conclusion

Considering the pros and cons of setting the minimum age of criminal responsibility at ten, it appears that the risk increases as the age limit is set higher while it is also unacceptable to set the age lower than ten for moral and ethical reasons. Indeed, Blackstone’s commentary regarding the discernment of guilt as a matter of malice as opposed to age has its merits. Evidently, some children, out of some factors, are capable of committing crime at a young age and setting the minimum age at ten is just right for these children to receive proper intervention as provided by the Australian justice system. It should be noted that Australia’s justice system does not necessarily punish children for their offense but rather aims to rehabilitate them for the purpose of bringing them back to society. It can therefore, be deduced that the minimum age of criminal responsibility at ten is just right and acceptable.

References

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