The term age of criminal responsibility can be used in different ways. One understanding is the age at which a child may be treated in the same way as an adult in the criminal justice system. It may refer to the age at which a child can be tried in an adult criminal court or the age at which a child may be subjected to the same punishments as an adult. This age level tends to relate closely to the age at which a child is deemed to become an adult (usually the age of 18). Until this age children will principally be dealt with in separate children’s courts with modified, less formal proceedings. Sanctions and measures available in children’s courts are usually less punitive and more welfare oriented.
Despite the growing consensus across the world that it is in the best interests of the young not to treat them in the same way as adults, some jurisdictions do allow children to be tried in an adult court when the offense is serious or they are tried with an adult. Prosecuting children in adult courts is, however, condemned by the United Nations (UN) Committee on the Rights of the Child as a breach of the UN Convention on the Rights of the Child and the UN Standard Minimum Rules for the Administration of Juvenile Justice (the “Beijing Rules”). Article 37 of the UN Convention on the Rights of the Child also prohibits holding children in the same prison facilities as adults or the imposition of the death penalty or life sentence without the possibility of release. In the U.S. case of Roper v. Simmonds (2005), the Supreme Court held that it was unconstitutional to sentence a person to death for an offense committed when they were under the age of 18. More recently, the Supreme Court also held in Miller v. Alabama (2012) that mandatory life without parole was unconstitutional for felons under 18 years old.
The second understanding of the age of criminal responsibility relates to the age at which a child may be prosecuted and convicted of an offense. It is the age at which a child is deemed to have the maturity to be held accountable for criminal behavior. There is considerable variation across the world in the age of criminal responsibility (ranging from 6 to 18) and the methods of establishing criminal responsibility. Comparison of age levels is also made more difficult due to differences in the systems used to address juvenile offending, which are often dependent on culture, history, and politics. For instance, in some jurisdictions children are primarily dealt with through care and welfare proceedings, while other jurisdictions deal with children in criminal justice proceedings (although such proceedings are usually tempered by welfare considerations). Nonetheless, four main approaches to the age of criminal responsibility can be ascertained: (1) a single absolute age period (sometimes referred to as the minimum age of criminal responsibility; (2) a single conditional age period (no minimum age level); (3) a combination of an absolute minimum age level and a conditional age period; and (4) different minimum age levels depending on the offense committed.
States which follow the first approach set a single age under which a child cannot be found criminally responsible in any circumstances. This approach may be based on a conviction that under this age a child is never mentally or socially mature enough to form a guilty mind. It may also be based on the belief that regardless of a child’s capacity, the criminal justice system is an inappropriate place for dealing with problem behavior by children. Under this age level a child can never be prosecuted in criminal proceedings. Upon reaching the minimum age a child is thought to no longer deserve or need protection from criminal proceedings and is deemed to be fully criminally responsible. However, this does not mean that special protection for children ends at the same age level. As noted above, typically juvenile-specific criminal proceedings and measures are used until the child reaches adulthood.
The fact that the minimum age of criminal responsibility may be based on different historical, cultural, political, social, and psychological factors and rationales is reflected in the very varied minimum age levels found across the world. The lowest age levels tend to be around 7 (e.g., Massachusetts, New York, Singapore) with some states setting an age level as low as 6 (e.g., North Carolina), and the highest minimum age level is set at the age at which a child is deemed to be an adult for other civil rights and responsibilities (18). In recent decades there has been a movement in common law jurisdictions and countries influenced by common law to raise the minimum age from its traditional level of 7. For instance, England, Wales, and Northern Ireland have a single minimum age level of 10, while the Republic of Ireland, Scotland, and Canada have set the age level at 12.
Those states which have no minimum age level fall under the second approach and can be classified as having a single conditional age period. Here rather than set a minimum age level under which it is thought that a child may never be criminally responsible, only a maximum age level is set at which a child is taken to be fully criminally responsible. Under this maximum age level a child’s criminal responsibility is determined by an individual assessment of the child’s capacity to form a guilty mind. The starting point is that children under the maximum age level are presumed not capable of forming a guilty mind (so-called presumption of doli incapax), but this presumption can be rebutted (reversed) if there is evidence that the child understood the wrongfulness of his or her behavior. An example of this approach can be found in France, which has a single age level of 18.
An approach which combines the two approaches detailed above is where a state sets a minimum age of criminal responsibility under which a child can never be found criminally responsible, and above this a maximum age level under which criminal responsibility is determined by an individual assessment of the child’s capacity to form a guilty mind. This was the traditional approach in many common law jurisdictions. It is still the approach found in all Australian jurisdictions where a child under 10 cannot be held criminally responsible in any circumstances and a child from the age of 14 is held to be fully criminally responsible.
Between these ages (from the age of 10 until the child’s 14th birthday), there is a conditional age period and a child can be held criminally responsible only if there is proof that the child understood the wrongfulness of his or her behavior (i.e., if the presumption of “doli incapax” is rebutted). This presumption will be rebutted if it is found that the child was able to understand that his or her behavior was “seriously wrong” in contrast to merely naughty or mischievous. Varied age levels can also be found with this approach across the world, for example, Washington has a lower age level of 8 and an upper level of 12, whereas in Germany the minimum age is 14 and the upper age is 18.
A final approach is where a general minimum age level of criminal responsibility is set but children can be found to be criminally responsible below this age level for certain (usually more serious) offenses. For example, in Hungary, while the general minimum age of criminal responsibility is 14, children are held criminally responsible from the age of 12 for homicide offenses.
Internationally, the UN Standard Minimum Rules for the Administration of Juvenile Justice state in Rule 4.1 that the age of criminal responsibility “shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.” In setting this requirement no minimum age of criminal responsibility is mentioned.
However, recently the United Nations Committee on the Rights of the Child has taken a firmer position and noted in its General Comment No. 10 in 2007 that it does not find a minimum age level below 12 internationally acceptable and encourages states to aim for a minimum age level of 14 or 16.
- Cipriani, Don. Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective. Aldershot, UK: Ashgate, 2009.
- Crofts, Thomas. The Criminal Responsibility of Children and Young Persons. Aldershot, UK: Ashgate, 2002.
- Crofts, Thomas. “Taking the Age of Criminal Responsibility Seriously in England.” European Journal of Crime, Criminal Law and Criminal Justice, v.17/4 (2009).
- Farmer, Emily. “The Age of Criminal Responsibility: Developmental Science and Human Rights Perspectives.” Journal of Children’s Services, 6/2 (2011).
- Goldson, Barry. “‘Difficult to Understand or Defend’: A Reasoned Case for Raising the Age of Criminal Responsibility.” Howard Journal, v.48/5 (2009).
- Maher, Gerry. “Age and Criminal Responsibility.”Ohio State Journal of Criminal Law, v.2 (2005).
- United Nations Committee on the Rights of the Child. General Comment No. 10: Children’s Rights in Juvenile Justice. Geneva: United Nations, 2007.
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