Wikipedia

Age of criminal responsibility

(Redirected from Defence of infancy)

The age of criminal responsibility is the age below which a child is deemed incapable of having committed a criminal offence. In legal terms, it is referred to as a defence/defense of infancy, which 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.[1]

Minimum age of reduced criminal responsibility by country

Under the English common law the defense of infancy was expressed as a set of presumptions in a doctrine known as doli incapax.[2] 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 7–13 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 that it was wrong. In fact, capacity was a necessary element of the state's case (thus, the rule of sevens doctrine arose). 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 for children over the age of 10,[3][4] but persists in other common law jurisdictions.

Terminology

The terminology regarding such a defense varies by jurisdiction and sphere. "Defense of infancy" is a mainly US term.[5] The "age of criminal responsibility" is used by most European countries, the UK,[6] Australia, New Zealand[7] and other Commonwealth of Nations countries.[8] Other instances of usage have included the terms age of accountability,[9] age of responsibility,[10] and age of liability,[11]

The term minimum age of criminal responsibility (MACR) is a term commonly used in the literature.[12][7]

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.[13]

The age of criminal responsibility

See also: Minor (law)

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:[14]

  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 jurisdictions 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.

Discussion

See also: Criminal responsibility in French law

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 after reaching a specified age.[15] 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 a 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.[14]

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.[14]

In Scotland, the age of criminal responsibility was raised from 8 to 12 by the implementation of the Age of Criminal Responsibility (Scotland) Act 2019,[16] which came into force on 31 March 2020.[17][18] 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 minimum age for federal crimes is 11 years. State minimums vary, with 24 states having no defined minimum age, and defined minimums ranging from 7 years in Florida to 13 years in Maryland and New Hampshire.[19]

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.[citation needed]

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 avoid criminal sentences and/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.[citation needed]

By country

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

Country
Age (reduced)[a]
Age (full)[b]
 Ref Notes
  Afghanistan 12 [20] 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 [21] 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 [22]
  Andorra 12 18/21 [23]
  Angola 14 [24] 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 minors.
  Antigua and Barbuda 8 16 [25] According to Articles 1 and 3 of the Juvenile Act, Courts must have regard to the welfare of those under 16.
  Argentina 16 18 [26][27]
  Armenia 14 [28]
  Australia 10/14 18/21 [29] Age of criminal responsibility in Australia. Review under way since 2019.[30]
Rebuttable presumption of incapacity until age 14.[29][31]

Juvenile offenders aged 14–17 are always held criminally responsible, but they are always tried as young/juvenile offenders, meaning generally more lenient sentences compared to adults. Also, juvenile offenders' photos and names usually cannot be released by the media, and access to the juvenile court list/courtroom is restricted to authorized people only. Nevertheless, juvenile offenders convicted still obtain a permanent (but usually sealable or annuable) criminal record as if they were adults (hence the criminal responsibility), but with generally reduced waiting times and often more lenient standards for convictions to become 'spent' or 'annulled' depending on Commonwealth, State, or Territory legislation applicable. Full adult criminal responsibility in terms of sentencing and conviction annullement eligibility at age 18 (21 in Victoria).

  Austria 14 18/21 [32]
  Azerbaijan 14 16 [33]
  Bahrain 15 [34]
  Bangladesh 9 [35]
  Belarus 14 16 [36] 16 is the standard age of criminal liability in Belarus. Minors between 14 and 16 years old are responsible only for certain severe crimes, according to article 27 of the Belarusian Criminal Code.
  Belgium 12 [37]
  Belize 7 [38]
  Benin 13 [39]
  Bhutan 10 [35]
  Bolivia 14 [40][41] Lowered in July 2014 from 16 to 14.
  Bosnia and Herzegovina 14 [citation needed]
  Botswana 8 [42]
  Brazil 12 18 [43][44][45][46] Full criminal responsibility from age 18, with a juvenile judiciary system for offenders aged between 12 and 18 who can be sentenced to a maximum of 3 years of imprisonment in separate juvenile jails.
  Brunei 7 [47]
  Bulgaria 14 [48] The maximum sentence that can be imposed on juvenile offenders can be no more than 12 years of imprisonment if the offenders are between 16 and 18 and no more than 10 years if they are between 14 and 16. Juvenile offenders serve their sentences in separate prisons up to the age of 18.
  Burkina Faso 13 [49]
  Burundi 15 [citation needed]
  Cambodia 14 [35]
  Cameroon 10 [50]
  Canada 12 14 [51] Children aged 12 or 13 can be sentenced to no more than 10 years of imprisonment, and children aged 14-17 can be sentenced to life imprisonment
  Cape Verde 16 [citation needed]
  Central African Republic 14 [50]
  Chad 13 [50]
  Chile 14 16 [52][53]
  China 12 16 [35][54] Since 1 March 2021, children between 12 and 14 can be held criminally responsible for intentional homicide or injury leading to death or severe disability committed with extreme cruelty subject to approval by the Supreme People's Procuratorate.
Notes
14 is the 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[55] and in Macau, 16.
  Colombia 14 18 [45]
  Comoros 13/14-15 [50] Depends whether Sharia Law or the Penal Code is applied.
  Costa Rica 12 [56] 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 [citation needed]
  Croatia 14 18 [57]
  Cuba 16 18/21 [58]
  Cyprus 14 [citation needed]
  Czech Republic 15 18 [59]
  Denmark (including Faroe Islands)[60] 15 18 [37]
  DR Congo 14 16 [61]
  Djibouti 13 [50]
  Ecuador 12 18 [62]
  El Salvador 12 18 [citation needed]
  Egypt 12 [50]
  Equatorial Guinea 16 [citation needed]
  Eritrea 12 [50]
  Estonia 14 18/21 [37]
  Eswatini 7 14 [50]
  Ethiopia 9 [50]
  Fiji 10 [citation needed]
  Finland 15 18 [63]
  France 13 18 [37]
  Gabon 13 [50]
  Gambia 12 [citation needed]
  Georgia 14 [64] Section 33 of Criminal code of Georgia defines that minors between 14 and 17 can be charged with criminal responsibility by juvenile justice.
  Germany 14 18/21 [65] Minors between 14 and 17 are sentenced by juvenile justice. A young adult between 18 and 21 years may still be sentenced by juvenile justice if considered mentally immature.
  Ghana 12 [citation needed]
  Greece 15 18/21 [citation needed]
  Guinea 10 [citation needed]
  Guinea Bissau 16 [citation needed]
  Hong Kong 10 [55]
  Hungary 12 18 [66] 12 only for premeditated homicide, voluntary manslaughter and bodily harm leading to death or resulting in life-threatening injuries; 14 for other crimes; Full criminal responsibility from age 18.[66]
  Iceland 15 18 [37]
  India 7 12 [35] Rebuttable presumption of incapacity until age 12. Minors could be detained for up to a maximum of 3 years, but in 2015, this maximum was raised to 7 years and minors aged between 16 and 18 can be tried as adults for heinous offences such as murder, rape, etc. They cannot, however, be sentenced to death or life imprisonment.
  Indonesia 12 18 [67]
  Iran 9 (girls), 15 (boys) [68][69]
  Iraq 9 [35]
  Ireland 10 12 [70] Exception for children aged 10 or 11, who can be charged with murder, manslaughter, rape, or aggravated sexual assault.
  Israel 12 [35]
  Italy 14 [37] Juvenile judiciary system for offenders aged between 14 and 18; separate juvenile halls.
  Japan 14 [35] Juvenile Training Schooling for offenders aged between 11 and 14.
  Jordan 12 [71]
  Kazakhstan 14 16 [72]
  Kenya 8 [50]
  Kosovo 14 18/21 [73]
  Kuwait 7 [35]
  Kyrgyzstan 14 18 [74]
  Laos 15 [citation needed]
  Latvia 14 18 [citation needed]
  Lebanon 7 [75]
  Lesotho 10 [50]
  Liberia 7 [50]
  Libya 14 18 [76]
  Liechtenstein 14 18/21 [citation needed]
  Lithuania 14 16 [citation needed]
  Luxembourg 18 [77]
  Madagascar 13 [50]
  Malawi 7 [50]
  Malaysia 10 [78][79]
Notes

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)
  Maldives 15 18 [80] Sharia law allows pubescent minors below 15 to be held responsible for certain severe crimes, as well as minors 15 and above without a rebuttal of presumption of incapacity.
  Mali 13 [50]
  Mauritania 7 [citation needed]
  Mauritius 0 14 [50] There is no minimum age for criminal responsibility. Children below age 14 can only face incarceration if they are proven to have enough discernment between right and wrong.
  Mexico 12 16 [81] Incarceration starting at age 14. Other measures applied for ages 12–13.
  Moldova 14 16/21 [citation needed]
  Mongolia 14 16 [82] Children between 14 and 16 years old responsible only for certain severe crimes.
  Montenegro 14 [citation needed]
  Morocco 12 [50]
  Mozambique 16 [citation needed]
  Myanmar 7 12 [35]
  Namibia 7 12 [50]
    Nepal 10 [35]
  Netherlands 12/16-21 16-21/22 [37] [83] From age 16, persons may be tried as adults or as children ("jeugdstrafrecht"). The maximum age for a person to be tried as a minor is 21.
  New Zealand 10 14 [84][85][86] 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 at least 14 years, but this may be increased circumstantially. See Youth justice in New Zealand.
  Nicaragua 13 [citation needed]
  Niger 13 [50]
  Nigeria 7 [50]
  North Korea 14 [35]
  North Macedonia 16 18 [citation needed] Persons aged 14 to 16 years at the time they committed an offence, known as "younger juveniles" within the Criminal Code, can only be sentenced to educational measures
  Norway 15 18 [87]
  Oman 9 [35]
  Pakistan 7 12 [35] There is a rebuttable presumption that a child aged between 7 and 12 years old is incapable of committing a crime.
  Palau 10 [citation needed]
  Papua New Guinea 7 [88]
  Panama 12 [citation needed] Lowered in 2010 from 14 to 12.
  Paraguay 14 [89] Minor offenders can be sentenced to a maximum of 8 years of imprisonment.
  Peru 14 18 [45]
Notes
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, femicide, extortion, vandalism, rape or being member of a criminal gang. Minors from 14–15 years at the moment of any of those same crimes may be subject to 4 to 8 years in prison.
  Philippines 15 18 [90][91][92] 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.[93] As of 2020, some child rights advocates were opposing this and other related bills in favor of a less fragmented approach addressing children's issues.[94]
  Poland 13 17 [95]
Notes
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 such as treason, assassination of Polish President, murder, homicide, serious bodily harm, causing a catastrophe, assault of a public servant, hostage-taking, rape and robbery, 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, therapeutic 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).[96] The maximum possible sentence that can be imposed on offenders taking criminal liability under 18 years of age is 25 years' imprisonment.
  Portugal 16 18/21 [97]
  Qatar 7 [35]
  Romania 16 18 [37] A child aged 14 to 16 can only be held criminally liable where it can be proved that he or she had "discernment"
Notes

For offences for which an adult would be sentenced to life imprisonment, a person between the ages of 14 and 18 would be sentenced to no more than 15 years of "strict imprisonment"

For offences for which an adult would be sentenced to "severe detention" a person between the ages of 14 and 18 would be sentenced to no more than 12 years of "strict imprisonment"

  Russia 14 16 [98]
Notes
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 [citation needed]
  San Marino 14 18/21 [99][100]
  São Tomé and Príncipe 16 [citation needed]
  Saudi Arabia 12 [35]
  Senegal 13 [citation needed]
  Serbia 14 18 [101] Persons aged 14 or 15 ("younger juveniles") can only be sentenced to educational measures
  Seychelles 7 [50]
  Sierra Leone 14 [citation needed]
  Singapore 10 [102][103] The Penal Code Review Committee proposed to increase the age to 10. Offenders between 16 and 21 are classed as Young Adults and may be considered for reformative training.
  Slovakia 14 [citation needed]
  Slovenia 14 18/21 [37]
  Solomon Islands 8 [citation needed]
  Somalia 14/15 [50] 15 in Somaliland, 14 in the rest of the country.
  South Africa 12 14 [104][105] 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 12 14 [35]
  South Sudan 12 [50]
  Spain 14 18 [106][107][108]
Notes

A person under the age of 18 can be sentenced to closed detention for a single offence if:

(i) the facts establish that the person has committed a felony under the Penal Code or special penal laws; (ii) the relevant crime was classified as a misdemeanour, but involved violence or intimidation against persons or has generated serious risk to life or physical safety; or (iii) the acts are classified as crimes committed in groups, organisations or associations

Persons aged 14 or 15 may be sentenced to a maximum of three years detention and persons aged 16 or 17 may not be sentenced to more than six years detention.

  Sri Lanka 12 14 [35] Rebuttable presumption of incapacity until age 14.
  Sudan 12 18 [109]
  Sweden 15 18 [37] Previously the full age was 21, was reduced down to 18 in 2021.[110]
   Switzerland 15 18 [37] Children aged 15 years at the time an offence was committed cannot be sentenced to more than one year of detention
Notes

A child aged 16 or over when an offence was committed may not be sentenced to more than four years in detention, and only where:

(i) he or she committed an offence for which an adult could be sentenced to detention of more than three months; or (ii) he or she has committed an offence under Article 122 of the Criminal Code, related to intentionally inflicting a life-threatening injury; or (iii) he or she commits robbery as a member of a group formed for the purposes of carrying out repeated robberies or thefts under Article 140(3) of the Criminal Code; or (iv) the behaviour of the offender is such as to show particular ruthlessness or the behaviour or purpose of the act reveal a highly reprehensible state of mind

  Syria 10 [35]
  Taiwan 12/14 18 [111][112] Minors between 12 and 14 cannot be trialed in criminal court, but could still be sentenced to juvenile probation or sent to correctional schools. Minors between 14 and 18 are subject to Criminal Code but qualify for reduction of sentence. Finally, the death penalty and life imprisonment cannot be sentenced to minor offenders.
  Tajikistan 14 16 [113]
  Tanzania 7 [50]
  Thailand 7 14 [35]
  Timor-Leste 16 [35]
  Togo 14 [50]
  Turkey 12 18 [114]
  Turkmenistan 14 16 [35]
  Tunisia 13 [citation needed]
  Uganda 12 [50]
  Ukraine 14 16 [37]
  United Arab Emirates 7 [35]
  United Kingdom 10/12 12/15 [115][116][117][16][17][18]

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).

12 in Scotland. Children under 12 cannot be convicted or get a criminal record; from 12 to 15, decision usually made by the Children's Reporter whether to refer to a children's hearing, which can lead to a criminal record, but could be prosecuted for a criminal offence if the offence is serious.

  United States varies by state[118] varies by state[118] [119] At the federal level, the minimum age of juvenile delinquency is 11 years, while 24 states have no minimum age of delinquency. The standards for transferal of juveniles to adult courts varies by state and may combine statutory limits with prosecutorial and judicial discretion.[120][19]
  Uruguay 13 18 [121]
  Uzbekistan 13 16 [35] "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 [citation needed]
  Vietnam 14 16 [35]
  Yemen 7 [35]
  Zambia 8 12 [50]
  Zimbabwe 7 14 [50]

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" of a criminal offense. Sometimes, in some jurisdictions (such as the United States of America), a minor may be tried as an adult.

See also

Notes

Footnotes

  1. ^ For only certain severe crimes and/or rebuttable doli incapax. May also imply reduced sentencing/punishment for all crimes
  2. ^ For all crimes and/or full responsibility (in terms of sentencing).

References

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Further reading

  • Maher, Gerry. Age and Criminal Responsibility. 2005 Vol 2. Ohio State Journal of Criminal Law. 493 Wayback Machine
  • 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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