Old Enough To Be A Criminal?

United Nations document

By: UNICEF

Date: 1997

Source: "Old Enough to be a Criminal?" In: The Progress of Nations, 1997. 〈http://www.unicef.org/pon97/p56a.htm〉 (accessed January 9, 2006).

About the Author: UNICEF (the United Nations Children's Fund) was formed in 1946 to help children affected by World War II. Today UNICEF has over 7,000 people working in 157 countries around the world. The organization's mission is to build a world where the rights of each and every child to health, education, dignity, and justice are fully recognized.

INTRODUCTION

One of the most difficult areas of criminal justice is providing a legal framework to deal with the transition from childhood innocence to full adult maturity. Children and adolescents who commit criminal acts should not, in general, be held, tried, or punished in the same way as an adult committing the same crime. The issue arises because, of course, children do commit crimes. Their behavior is more spontaneous than that of adults and they are more easily influenced or led, which, under some circumstances, can result in their involvement in crime. Generally, these are property offenses, such as theft or criminal damage, but more serious crimes occur from time to time.

Children are, for instance, capable of murder. In 1993, two-year-old James Bulger was murdered in Liverpool, England, by two ten-year-old boys. In 2000, a six-year-old girl in Michigan was shot dead by a six-year-old classmate. Such cases are rare, but they always re-ignite the debate on the age of criminal responsibility. The precise definition of criminal responsibility varies from place to place but, in general, to be responsible for a criminal act implies the perpetrator must understand what they are doing and that it is wrong.

Clearly, most young children are too immature to fully appreciate the difference between right and wrong. Many countries have fixed an age below which children cannot be held criminally responsible for their actions. Commonly, this age is set at ten years, although the age of criminal responsibility can vary between six and twelve years, according to the country. The article below discusses the call under the U.N. Convention on the Rights of the Child for nations to set a minimum age for criminal responsibility.

PRIMARY SOURCE

Children below a certain age are too young to be held responsible for breaking the law. That concept is spelled out in the Convention on the Rights of the Child, which calls for nations to establish a minimum age "below which children shall be presumed not to have the capacity to infringe the penal law." But the Convention does not set a specific age, and it varies greatly.

International standards, such as the Beijing Rules for juvenile justice, recommend that the age of criminal responsibility be based on emotional, mental and intellectual maturity and that it not be fixed too low.

The Committee on the Rights of the Child, which monitors countries' implementation of the Convention, has recommended that the age be guided by the best interests of the child.

In the US, the age of criminal responsibility is established by state law. Only 13 states have set minimum ages, which range from 6 to 12 years old. Most states rely on common law, which holds that from age 7 to age14, children cannot be presumed to bear responsibility but can be held responsible.

In Japan, offenders below age 20 are tried in a family court, rather than in the criminal court system. In all Scandinavian countries, the age of criminal responsibility is 15, and adolescents under 18 are subject to a system of justice that is geared mostly towards social services, with incarceration as the last resort. As of April 1997, only15 juveniles were serving a prison sentence in Sweden.

In China, children from age 14 to 18 are dealt with by the juvenile justice system and may be sentenced to life imprisonment for particularly serious crimes.

In most countries of Latin America, the reform of juvenile justice legislation is under way. As a result, the age of adult criminal responsibility has been raised to 18 in Brazil, Colombia and Peru. Children from age 12 to 18 are held responsible under a system of juvenile justice.

The wide variation in age of criminal responsibility reflects a lack of international consensus, and the number of countries with low ages indicates that many juvenile justice systems do not adequately consider the child's best interests.

Age of criminal responsibility is just one variable influencing how juveniles are treated by justice systems. Other variables include whether there is a separate juvenile law based on child rights; whether a young person is subject to punitive sanctions or only to socio-educational measures; and whether the country has separate court systems and jails for young people. A juvenile justice system provides legal protections and an objective standard for treatment. In its absence, young people may be handled by the adult criminal justice system or be held in lsquo; protectiversquo; custody, where they have no legal protections and may face arbitrary or harsh treatment.

AGE OF CRIMINAL RESPONSIBILITY

Minimum age at which children are subject to penal law in countries with 10 million or more children under 18 years old:

Mexico........................∗6-12

Bangladesh........................7

India.............................7

Myanmar...........................7

Nigeria...........................7

Pakistan..........................7

South Africa......................7

Sudan.............................7

Tanzania..........................7

Thailand..........................7

United States...................∗∗7

Indonesia.........................8

Kenya.............................8

UK (Scotland).....................8

Ethiopia..........................9

Iran...........................∗∗∗9

Philippines.......................9

Nepal............................10

UK (England).....................10

UK (Wales).......................10

Ukraine..........................10

Turkey...........................11

Korea, Rep.......................12

Morocco..........................12

Uganda...........................12

Algeria..........................13

France...........................13

Poland...........................13

Uzbekistan.......................13

China............................14

Germany..........................14

Italy............................14

Japan............................14

Russian Federation...............14

Viet Nam.........................14

Egypt............................15

Argentina........................16

Brazil.......................∗∗∗∗18

Colombia.....................∗∗∗∗18

Peru.........................∗∗∗∗18

Congo, Dem. Rep...................−

∗ Most states 11 or 12 years; age 11 for federal crimes.

∗∗ Age determined by state, minimum age is 7 in most states under common law.

∗∗∗ Age 9 for girls, 15 for boys.

∗∗∗∗ Official age of criminal responsibility, from age 12 children's actions are subject to juvenile legal proceedings.

SIGNIFICANCE

The variation in ages of criminal responsibility listed above are a reflection of the history and culture of a nation. The monitoring committee for the Convention on the Rights of the Child does not actually call for a minimum age of criminal responsibility that will be universally applied. However, it does criticize those countries that make the age twelve or less. The modern approach to setting the age should take account of a child's cognitive, moral, and psychological development. Obviously, this depends upon the individual child and his or her circumstances, but there is a clear danger in setting the age too low. Between the ages of eight and fourteen, for example, a child in Scotland or Kenya may be charged with a crime whose significance is not understood, because he or she was not mature enough to really appreciate the difference between right and wrong. In China, Japan, and Germany, this immaturity in the eyes of the law is recognized. Yet, there is no reason to believe that a child's understanding of a criminal act is a function of the country in which he or she happens to live.

Abolishing the age limit altogether, as was suggested recently in Scotland, is similarly fraught with danger. A child of any age might be brought to trial for an offence he or she did not appreciate having committed and be subjected to legal proceedings he or she does not understand—a clear travesty of justice. Yet the age of criminal responsibility is not considered in a vacuum; rather, it is part of a system. In the Scottish case, the Lord Advocate looks after the interests of those under sixteen and will intervene before they are brought before an adult court. And, in practice, although an age of criminal responsibility of eight seems harsh, only a tiny fraction of child offenders actually come before the courts. The majority are dealt with by the Children's Panel, which is more focused on welfare issues than punishment. In the case of a very young child having to be charged—if the age of criminal responsibility were abolished—then the Lord Advocate would act as a safeguard to ensure that the child is not subject to proceedings he or she can-not understand.

When it comes to punishment, obviously society's need for justice must be satisfied. But, in the case of a child or adolescent, welfare and education are probably more important components of any sentence handed out. The Convention on the Rights of the Child says that no child—that is, person under 18—should ever be subject to capital punishment or imprisonment without prospect of release. Arrest, detention, and imprisonment of a child should always be seen as a last resort and be imposed for the minimum length of time. These are the minimum conditions that a child should be guaranteed should he or she break the law. Balancing the rights and needs of a juvenile offender with those of victims and society at large remains a huge challenge—of which the age of criminal responsibility is just one element.

FURTHER RESOURCES

Books

Wilson, Colin. The Mammoth Book of True Crime. London: Robinson, 1998.

Periodicals

Urbas, Gregor. "The Age of Criminal Responsibility." Trends and Issues in Crime and Criminal Justice No. 181 (November 2000).

Web sites

BBC News. "Challenge to Age of Criminal Responsibility." 〈http://news.bbc.co.uk/2/hi/uk_news/scotland/1465782.stm〉 (accessed January 9, 2006).

U.N. Office of the High Commissioner for Human Rights. "Convention on the Rights of the Child." 〈http://www.unhchr.ch/html/menu3/b/k2crc.htm〉 (accessed January 9, 2006).