Defense of infancy

Minimum age of criminal responsibility by country

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 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,[1] but persists in other common law jurisdictions.

Terminology [ edit ]

The terminology regarding such a defense varies by jurisdiction and sphere. Instances of usage have included the terms age of accountability,[2] age of responsibility,[3] age of criminal responsibility[4] and age of liability.[5] 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.[6]

The age of criminal responsibility [ edit ]

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:

  1. 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.
  2. 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 ]

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.[7] Hence, no matter what the child 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 was raised from 8 to 12 in June 2019 to be in line with the age of criminal prosecution (2010).[8] In England and Wales and Northern Ireland the age of responsibility is 10 years, and in the Netherlands and Canada the age of responsibility is 12 years. Sweden, Finland, and Norway all set the age at 15 years. In the United States the age varies between states, being as low as 6 years in South Carolina and 7 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 jurisdictions do not have a set 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 ]

The following are the minimum ages at which people may be charged with a criminal offence in each country:

Country Age (for main crimes) Age (for all crimes) Ref Notes
  Afghanistan 7 12 [9] Minimum age of criminal responsibility is 12. Children aged 7–12 can be subject to warnings, supervision by social services, or confinement to a rehabilitation centre.
  Albania 14 16/18 [10] 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 18 [11] Children aged 13–18 are subject to attenuated penalties.
  Andorra 12 [12]
  Angola 14 18 [13] 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 16 [14] According to Articles 1 and 3 of the Juvenile Act, Courts must have regard to the welfare of those under 16.
  Argentina 16 [15] [16]
  Armenia 14 [17]
  Australia 10 [18] Age of criminal responsibility in Australia.

Rebuttable presumption of incapacity of committing crime: under 14.[18][19]
  Austria 14 18/21 [20]
  Azerbaijan 14 [21]
  Bangladesh 7 9 [22]
  Belarus 14 16 [23] 16 is the standard age of criminal liability in Belarus. Minors between 14 and 16 years old are responsible only for certain crimes, according to article 27 of the Belarusian Criminal Code.
  Belgium 12 [24]
  Bhutan 10 [22]
  Bolivia 14 [25] [26] Lowered in July 2014 from 16 to 14.
  Bosnia and Herzegovina 14
  Brazil 12 18 [27] [28] [29] [30] 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.
  Bulgaria 14
  Burundi 15
  Cambodia 14 [22]
  Canada 12 [31]
  Cape Verde 16
  Chile 14 16 [32] [33]
  China 14 16 [22]
Absolute minimum for acts that constitute the following crimes: homicide, wounding resulting in death, rape, robbery, arson, explosion, planting of toxic substances and trafficking in dangerous drugs. The minimum age for other crimes are 16. In Hong Kong, the minimum age is 10[34] and in Macau, 16.
  Colombia 14 18 [29]
  Costa Rica 12 18 [35] 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.
  Cote d'Ivoire 10
  Croatia 14 21 [36] 14 for all crimes under the general provisions of the Criminal Code; special provisions may apply for some crimes up to the age 21.
  Cuba 16 [37]
  Cyprus 14
  Czech Republic 15 18 [38]
  Denmark 15 [24]
  DR Congo 14 16 [39]
  Ecuador 12 18 [40]
  Egypt 12 [41]
  Equatorial Guinea 16
  Estonia 14 [24]
  Ethiopia 9 [41]
  Fiji 10
  Finland 15 [42]
  France 13 [24]
  Gambia 12
  Georgia 14 18 [43] 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 18/21 [44] Youth 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.
  Greece 13
  Guinea 10
  Guinea Bissau 16
  Hong Kong 10 [34]
  Hungary 12 14 [45] 12 only for premeditated homicide, voluntary manslaughter and bodily harm leading to death or resulting in life-threatening injuries; 14 for other crimes.[45]
  Iceland 15 [24]
  India 7 [22]
  Indonesia 8 [22]
  Iraq 9 [22]
  Iran 9 (girls); 15 (boys) [46] [47]
  Ireland 10 12 [48] Exception for children aged 10 or 11, who can be charged with murder, manslaughter, rape or aggravated sexual assault.
  Israel 12 [22]
  Italy 14 18 [24] Juvenile judiciary system for offenders aged between 14 and 18; separate juvenile jails. Full criminal responsibility from age 18.
  Japan 14 [49]
  Kenya 8 [41]
  Kosovo 14 [50]
  Kuwait 7 15 [22]
  Laos 15
  Liechtenstein 14 18/21
  Luxembourg 18 [51]
  Malaysia 10 [52] [53]

Malaysia has a dual system of secular and Islamic law, which has resulted in a number of different minimum ages of responsibility depending on which branch of the law is applicable.

  • Under the Penal Code, a person can be held criminally responsible from the age of 10. [Penal Code, Article 82. See also Child Act Article 2]
  • Under the Syariah Criminal Offences (Federal Territories) Act 1997, Muslim children can be held criminally responsible from the onset of puberty. [Syariah Criminal Offences (Federal Territories) Act 1997, Articles 2 and 51]
  • Offences under the Internal Security Act can be prosecuted regardless of age. [Essential (Security Cases) Regulations 1975, Article 3] (The act was repealed in 2012 and replaced with Security Offences (Special Measures) Act 2012 )
  Mauritania 7
  Mexico 12 [54] Incarceration starting at age 14. Other measures applied for ages 12–13.
  Moldova 14
  Mongolia 14 16 [55] Children between 14 and 16 years old responsible only for certain crimes.
  Montenegro 14
  Morocco 12 [41]
  Mozambique 16
  Myanmar 7 12 [22]
    Nepal 10 [22]
  Netherlands 12 [24]
  New Zealand 10 14/17 [56] [57] 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.
  Nicaragua 13
  Nigeria 7 [41]
  North Korea 14 [22]
  North Macedonia 14
  Oman 9 [22]
  Norway 15 [58]
  Pakistan 7 [22]
  Palau 10
  Papua New Guinea 7
  Panama 12
  Paraguay 14 17 [59] Offenders between 14 and 17 can be sentenced to a maximum of 8 years of imprisonment.
  Peru 14 18 [29]
18 is the standard age of criminal liability in Peru. However, minors from 16–17 years old at the moment of the crime may be subject to 6 to 10 years in prison in case of homicide, feminicide, extortion, vandalism, rape or being member of a criminal gang. Minors from 14–15 years at the moment of a crime may be subject to 4 to 8 years in prison.
  Philippines 15 18 [60] [61] [62] On 28 January 2019, the House of Representatives passed a bill proposing to lower the minimum age of criminal responsibility from 15 years to 12 years with a vote of 146-34-0.[63]
  Poland 15 18 [64]
17 is the standard age of criminal liability in Poland. Minors from the age of 15 can be tried as adults in relation to especially heinous crimes when "the circumstances of the case and the mental state of development of the perpetrator, his characteristics and personal situation warrant it, and especially when previously applied educational or corrective measures have proved ineffective." On the other hand, the Court may choose to apply juvenile measures for perpetrators above the age of 17 but below the age of 18, if "the circumstances of the case and the mental state of development of the perpetrator, his characteristics and personal situation warrant it." Juvenile correctional proceedings liability age is 13. Juvenile educational and therapeutic proceedings liability applies to all persons under the age of 18 (including persons below 13 years of age).[65]
  Portugal 16 18/21 [66]
  Qatar 7 [22]
  Romania 14 [24]
  Russia 14 16 [67]
16 by default, 14 years specifically for crimes as listed in Section 20 of the Criminal code, like murder, rape, robbery, extortion, kidnapping, motor vehicle theft, terror attack, stealing restricted substances like explosives or narcotics, aggravated anti-social behaviour, vandalism, false report of a terror attack.
  Rwanda 14
  San Marino 14 18
  São Tomé and Príncipe 16
  Saudi Arabia 12 [22]
  Senegal 13
  Serbia 14
  Sierra Leone 14
  Singapore 7 [22] The Penal Code Review Committee is proposing to increase the age to 10.
  Slovakia 14
  Slovenia 14 [24]
  Sri Lanka 8
  Solomon Islands 8
  South Africa 12 [68] [69] The age of criminal capacity was raised to 12 by the Child Justice Amendment Act, 2019. There is a rebuttable presumption that a child between the ages of 12 and 14 lacks criminal capacity.
  South Korea 14 19 [22]
  Spain 14 18 [70] [71]
  Sri Lanka 8
  Sudan 7 15 [41] Children aged 7 to 15 can be held criminally responsible if they have reached puberty.[72]
  Swaziland 7 14 [41]
  Sweden 15 [24]
   Switzerland 10 [24]
  Syria 10 [22]
  Taiwan 14 18 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.[73]
  Tanzania 7 [41]
  Thailand 7 14 [22]
  Timor-Leste 16 [22]
  Turkey 12 [24]
  Turkmenistan 14 16 [22]
  Tunisia 13
  Uganda 12 [41]
  Ukraine 14 16 [24]
  United Arab Emirates 7 [22]
  United Kingdom 10 18 [74] [75] [76] [77]

10 in England, Wales and Northern Ireland. Usually persons aged 10–11 will only be imprisoned in very serious cases, such as murder. Even more so the outcome for youth (12–17) criminal proceedings are usually age categorised (currently it will depend on whether the offender is under 12, under 14, under 16 or under 18, with the older the offender the more severity of punishment, especially for serious crimes).

8 in Scotland. The minimum age legally remains at 8, although the Age of Criminal Responsibility (Scotland) Act 2019 will raise this age to 12, once section 1 is brought into force. [78] Section 3 of the new Act came into force on 29 November 2019 which prevents children under 12 from being referred to a Children's Hearing on offence grounds. [79] This has de facto raised the age of criminal responsibility to 12 in practice.

  United States varies by state varies by state [80] [81] At the state level, 33 states set no minimum age of criminal responsibility.[80] For federal crimes, the minimum age of criminal responsibility is 11.[81] Massachusetts has the oldest age of criminal responsibility at 12 years old with no exceptions while North Carolina has the youngest age at 6 years old.[82]
  Uruguay 13 18 [83]
  Uzbekistan 13 16 [22] "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]"
  Vanuatu 10
  Vietnam 14 16 [22]
  Yemen 7 [22]
  Zambia 8 12 [41]
  Zimbabwe 7 14 [41]

Child imprisonment [ edit ]

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 [ edit ]

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 of America) a minor may be tried as an adult.

See also [ edit ]

References [ edit ]

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Further reading [ edit ]

  • Maher, Gerry. "Age and Criminal Responsibility. 2005 Vol 2. Ohio State Journal of Criminal Law. 493 [2]
  • 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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