Being Right

The Strand is a popular shopping center in Bootle, Merseyside. Opened in 1968, it kept expanding: residents finding it convenient, adequate, with all the necessary essentials: hardware, candy store, a butcher, even Thomas the Tank to entertain the kids.
In 1993, Denise Bulger (now Fergus) decided to spend the afternoon there and brought along her two-year-old boy, James. It was a fateful decision.
Entering A. R. Tym’s butcher’s shop, she got momentarily distracted. And then she realized her son was not there.
Security called, Denise described her missing James: blonde, blue jacket, blue scarf with the cartoon character Noddy.
The Strand’s security, used to distressed parents and misplaced children, listened calmly, professionally. They turned to their CCTV monitors.
What they saw at the 3:42 p.m. mark turned their blood cold.
At 4:15 p.m., they called the police.
Earlier that afternoon, also in The Strand, Jon Venables and Robert Thompson were enjoying playing truant. They wandered around aimlessly in the shopping center, surreptitiously picking up a sweet here, a toy here, and stealing a few batteries there. Also a can of paint.
It was at The Strand that Venables and Thompson would spot James Bulger, approach him, and take him by the hand. Out of The Strand.
They would walk for 2 miles, eventually dropping him at the Leeds and Liverpool Canal. Head first. James suffered injuries.
Venables and Thompson laughed and then walked away.
In his confusion, James followed the two.
Local pedestrians would afterwards remember the boy crying; sometimes walking ahead or behind Venables and Thompson. They thought the boys were just brothers fooling around with a younger sibling.
Finally, after two hours of drifting around, at 5:30 p.m., they arrived at the disused Walton and Anfield railway station. And there, amongst the railway tracks in Liverpool, Venables and Thompson started torturing James Bulger.
Paint was thrown at his left eye. Then kicking. Then bricks and stones. On and on.
The thing was, two-year-old James Bulger kept standing up.
Repeatedly collapsing from the non-stop kicks and rocks, Jon Venables would later recount: “He just kept getting back up again. He wouldn’t stay down.”
Which, of course, escalated, made more vicious, the attacks.
They took off James’s clothes, violated his private parts, inserted batteries in his mouth and anus.
Finally, at around 6-6:30 p.m., approximately 45 minutes to an hour of torture, with James sustaining 42 injuries, so many of them classifiably fatal that pathologists couldn’t tell what specific injury caused his death, Venables and Thompson smashed James’s head with a 10 kilogram iron bar.
Sure he was dead, they put James on the tracks and tried to make it appear the death was an accident. A train later cut the body in half.
Working on a tip from a woman who recognized Venables from a photo on national television, the police arrested him and Robert Thompson.
The difficulty was the age of the perpetrators. The police and prosecution expected to confront teens.
Venables and Thompson were both 10 years old.
There was no doubt they committed the murders: DNA and other forensic evidence was more than sufficient. And there were the confessions of the two boys themselves.
The question was: should they have been tried as adults? Did they have the capacity to discern right from wrong and hence be held criminally liable?
The prosecution certainly thought so, presenting two psychiatrists Eileen Vizard and Susan Bailey, who examined Thompson and Venables, respectively. They were unequivocal in declaring both boys knew what they were doing.
In the end, the court ruled Venables and Thompson acted with “mischievous discretion,” meaning they not only acted knowing right from wrong, they knew that what they were doing was “seriously wrong.”
Many people at the time wanted both boys to “rot in jail for life.” Then Prime Minister John Major urged citizens to “condemn a little more and understand a little less.” The then Home Secretary Michael Howard wanted a 15-year sentence. The judge instead imposed 8.
The thing is, it would be easy to use the case of Venables and Thompson as justification for lowering the age of criminal responsibility. However, the experience of that case shows otherwise.
The crime, for all its shocking brutality, is actually of extreme rarity.

To impose criminal responsibility on the basis of such would be simply wrong.
It would also betray self-contradictions in our legal system: attributing criminal discernment while at the same time imposing lack of mental and psychological capacity for employment, voting, marriage, drinking, driving, contracts, and public office.
To clarify: the problem is not the inflicting of prison, rather the principle and morality of categorizing children as criminally liable.
After all, one can be a criminal but not imprisoned: there are fines, loss of political rights, etc., as alternative punishments. And admittedly even rehabilitative measures do involve a degree of coercive limitations on freedom and mobility.
But imprisonment per se is wrong for children due to the harsh environment clearly involved, particularly when compared to the far better option of rehabilitation and care that a proper child welfare center presents.
Some of our local legislators, refusing to back down and concede that there is something utterly wrong with labeling children as criminals, would rather skirt around this issue by engaging in semantic quibbling, resorting to empty phraseology such as “age of social responsibility.” Why not “age of community engagement” or “phase of national consciousness”? They all mean nothing in scientific criminal terms, thus not begetting the respect proper for a law.
The point is: we either consider the child criminally responsible or not. And everything about our society tells us that we shouldn’t.
To re-emphasize the point: imprisonment is not the true issue but rather the principle and morality of whether kids can be categorized as “criminally liable.”
The principle and morality involved are of fundamental importance because:
From there succeeding future legislations are presented with a standard they need to adhere to;
Indicates how we as a people value people;
The need to avoid clashing with other principles (embodied in our other laws, jurisprudence, norms, culture, and practice) to avoid having a confused society;
The need to recognize our people’s religious and cultural beliefs and traditions; and
Our Constitution mandates we act for the “common good,” entailing respect for human dignity, with every individual human being always to be treated as the end and never a means to an end.
Speaking of religions, while indeed some faiths, like that of the Catholic Church, allow confessions for children as young as 7, thus presupposing basic knowing of right from wrong, nevertheless, those same religious will not accept vocations for the priesthood or marriage for the same age.
The point is: there is a world of difference between knowing moral responsibility (to be nurtured personally) and legal responsibility (societally imposed, of fixed dichotomies, and categorically technical).
Add on that the difference of knowing right and wrong with possessing the judgment and capacity to control impulses and behavior that only full maturation (which study after scientific study demonstrates comes about at the age of 25) brings.
Then, ultimately, there is also the very question of society’s responsibility to itself and towards its children: both Venables and Thompson grew up in broken families, with single mothers, had learning difficulties, and a history of truancy and delinquency prior to meeting James Bulger.
In the end, after their stints in prison, Thompson, diagnosed with trauma, ignored his then girlfriend and moved in with a gay lover. Venables, known to strip his clothes off after every hearing in his 1993 trial, claiming he could smell James Bulger’s “baby smell” in his clothing, would suffer in his adult year from a series of criminal problems involving child pornography.
Perhaps, had Britain’s legal system upheld the principle of doli incapax (that young children cannot be held criminally responsible); perhaps had Venables and Thompson been given more familial and adult nurturing, even wary and watchful monitoring, rather than remedial subsequent objective punishment; perhaps if the option chosen was rehabilitation rather than imprisonment, then perhaps instead of losing James Bulger’s life, the lives of Venables and Thompson could also have been saved.
Regarding our Philippine situation, what is important is not only to prevent children from being used by criminals but that they also not accept criminality as a way of life.
And the best way to do that is not to rush measures and pick random numbers out of nowhere (quibbling about 9, 12, or 15) but to build on — not drastically depart from — the long lessons drawn from our actual legislative, judicial, and police enforcement experience within our legal system.
Of James Bulger, unfortunately, for all its tragedy, whatever we might think now is but hindsight.
What can be done, however, is this: in the 26 years after James Bulger’s death on Feb. 12, 1993, for countries — including the Philippines — to learn the proper lessons from it.
Jemy Gatdula is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.
Twitter @jemygatdula