Defense of infancy
Encyclopedia
The defense of infancy is a form of defense
known as an excuse
so that defendant
s 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. 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 he had done. Children aged seven to 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 he was doing and that it was wrong. Children fourteen and older were presumed capable of committing a crime. However, the child could rebut this presumption by establishing that because of his immaturity he was incapable of understanding what he had done or the wrongfulness of his conduct.
in Liverpool in 1993, children can be tried as an adult in an adult court.
From the age of 10 onwards, individuals are then considered an adult in the eyes of the law. Therefore, all punishment given by the courts or other law enforcement agencies will rest solely upon them.
s 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:
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.
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 behaviour 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. Hence, no matter what the infant 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 offence 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 offence 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 responsibility is twelve years, In England and Wales
and Northern Ireland
the age of responsibility is ten years and in the Netherlands
and Canada
, the age of responsibility is twelve years. Sweden
, Finland
, and Norway
all set the age at fifteen years. In most of the US states, the age varies between states but is normally not lower than 7 years. In Belgium
, it is eighteen years. 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 18 years.
Some states refuse to set a fixed minimum age, but leave discretion to prosecutor
s to argue or the judge
s 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 parent
s to unsupervised custody, or by separate criminal proceedings against the parents for breach of their duties
as parents.
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
known as an excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
so that defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
s falling within the definition of an "infant" are excluded from criminal
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
liability
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
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. 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 he had done. Children aged seven to 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 he was doing and that it was wrong. Children fourteen and older were presumed capable of committing a crime. However, the child could rebut this presumption by establishing that because of his immaturity he was incapable of understanding what he had done or the wrongfulness of his conduct.
England/Wales
Within England/Wales, criminal responsibility is considered the age of 10 years. This is when a child becomes criminally responsible for their actions and the consequences of their actions. From this age onwards, they can be prosecuted for any criminal offence in a Youth Court. In exceptional circumstances, most notably the case of the murder of James BulgerMurder of James Bulger
James Patrick Bulger was a boy from Kirkby, England, who was murdered on 12 February 1993, when aged two. He was abducted, tortured and murdered by two ten-year-old boys, Robert Thompson and Jon Venables .Bulger disappeared from the New Strand Shopping Centre in Bootle, near Liverpool, while...
in Liverpool in 1993, children can be tried as an adult in an adult court.
From the age of 10 onwards, individuals are then considered an adult in the eyes of the law. Therefore, all punishment given by the courts or other law enforcement agencies will rest solely upon them.
The age of criminal responsibility
GovernmentGovernment
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
s 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:
- As a definition of the process for dealing with an alleged offender, the range of ages specifies the exemption of a childChildBiologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
from the adultAdultAn adult is a human being or living organism that is of relatively mature age, typically associated with sexual maturity and the attainment of reproductive age....
system of prosecution and punishmentPunishmentPunishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
. 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 in an adult. - 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
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
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
This is an aspect of the public policyPublic policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
of parens patriae
Parens patriae
Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
. In the criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, each state will consider the nature of its own society and the available evidence of the age at which antisocial behaviour 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. Hence, no matter what the infant 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 offence 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 offence 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
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
the age of responsibility is twelve years, In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
and Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
the age of responsibility is ten years and in the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
and Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the age of responsibility is twelve years. Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
, Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
, and Norway
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
all set the age at fifteen years. In most of the US states, the age varies between states but is normally not lower than 7 years. In Belgium
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
, it is eighteen years. As the treaty parties of the Rome Statute of the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
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 18 years.
Some states refuse to set a fixed minimum age, but leave discretion to prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
s to argue or the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s to rule on whether the child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
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
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
or address more practical matters of parental responsibility
Parental responsibility (access and custody)
In the nations of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either of the child's parents or those adults who have a significant role in the child's life...
by adjusting the rights of parent
Parent
A parent is a caretaker of the offspring in their own species. In humans, a parent is of a child . Children can have one or more parents, but they must have two biological parents. Biological parents consist of the male who sired the child and the female who gave birth to the child...
s to unsupervised custody, or by separate criminal proceedings against the parents for breach of their duties
Parental responsibility (criminal)
In Canada and the United States, the term parental responsibility refers to the potential or actual liability that may be incurred by parents for the behaviour of their children.-The Canadian law:...
as parents.
Ages of criminal responsibility by country
The following are the minimum ages at which children may be charged with a criminal offence.| Country | Age | Reference | Notes |
|---|---|---|---|
 Mexico |
6–12 | Most states 11 or 12 years; age 11 for federal crimes. | |
 United States |
6–12 | Age determined by each state; the minimum age is 6 (North Carolina), however, only 15 states have set minimum ages, which range from 6 to 12 years. States without statutory minimum ages rely on common law, which means that 7 is the minimum age in most states; for federal crimes the age has been set at 11. | |
 India |
7 | ||
 Myanmar |
7 | ||
 Nigeria |
7 | ||
 Pakistan |
7 | ||
 Singapore |
7 | ||
 Sudan |
7 | ||
 Tanzania |
7 | ||
 Thailand |
7 | ||
 Indonesia |
8 | ||
 Kenya |
8 | ||
 Bangladesh |
9 | ||
 Ethiopia |
9 | ||
 Iran |
9–15 | Age 9 for girls, 15 for boys | |
 Australia |
10 | Age of criminal responsibility in Australia Age of criminal responsibility in Australia The age of criminal responsibility in Australia 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 defense of infancy.... Presumption of incapacity of committing crime: 14. |
|
  England and WalesEngland and Wales England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom... (UK United Kingdom The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages... ) |
10 | See youth justice in England and Wales | |
| Northern Ireland Northern Ireland Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west... (UK) |
10 | ||
 Nepal |
10 | ||
 South Africa |
10 | The Child Justice Act 75 of 2008 came into effect 1 April 2010. There is a rebuttable presumption Rebuttable presumption Both in common law and in civil law, a rebuttable presumption is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. For example, a defendant in a criminal case is presumed innocent until proved guilty... that a child between the ages of 10 and 14 lacks criminal capacity. |
|
 Switzerland |
10 | ||
 Turkey |
11 | ||
 Kingdom of Scotland (UK) |
12 | | | |
 Canada |
12 | ||
 Republic of Ireland |
12 | ||
 Israel |
12 | ||
 Japan |
12 | ||
 Morocco |
12 | ||
 Netherlands |
12 | ||
 South Korea |
12 | ||
 Uganda |
12 | ||
 Algeria |
13 | ||
 Early Modern France |
13 | ||
 Austria |
14 | ||
 Mainland China |
14 | 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 and in Macau, 16 | |
 Estonia |
14 | ||
 Germany |
14 | ||
 Hungary |
14 | ||
 Italy |
14 | ||
 New Zealand |
14 | Children in New Zealand can be charged with murder or manslaughter from age 10, several very serious offenses from the age 12, and all other offences from the age of 14. | |
 Kingdom of Romania |
14 | ||
 Russia |
14 | 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 | |
 Slovenia |
14 | ||
 Spain |
14 | ||
 Ukraine |
14 | ||
 Vietnam |
14 | ||
 Czech Republic |
15 | ||
 Denmark |
14 | 14 as of July 1, 2010 | |
 Egypt |
15 | ||
 Finland |
15 | ||
 Iceland |
15 | ||
 Norway |
15 | ||
 Philippines |
15 | The child in conflict with the law may be held liable if he or she is more than 15 years of age if he or she acted with discernment. | |
 Sweden |
15 | ||
 Uzbekistan |
15 | ||
 Portugal |
16 | Currently being studied the possibility of lowering the age of criminal responsibility to 14. From age 12 to 15 children are kept in juvenile correction centers. | |
 Poland |
17 | Official age of criminal responsibility; from age 12, children's actions are subject to juvenile legal proceedings. | |
 Argentina |
18 | ||
 Belgium |
18 | ||
 Brazil |
18 | Official age of criminal responsibility; from age 12, children's actions are subject to juvenile legal proceedings. | |
 Colombia |
18 | Official age of criminal responsibility; from age 12, children's actions are subject to juvenile legal proceedings. | |
| International Criminal Court International Criminal Court The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the... |
18 | ||
 Peru |
18 | Official age of criminal responsibility; from age 12, children's actions are subject to juvenile legal proceedings. | |
| 18 |