All men start as good-natured spirits. No one is born evil. Everyone is presumed innocent until proven guilty. All children are innocents although they may commit wrongdoing. These are evident.
The debate on what age children can be considered to commit crimes, and hence are to be regarded as criminals, is flooded with a hodgepodge of false views, incoherent arguments, and downright fallacies. Without a simple exposition, it is a disservice to everyone, especially the children in question and the subjects of their wrongdoing or victims of their crime as the case may be.
First, a bedrock principle in criminal law states that a crime is committed by a person with intent. Intent means with purpose, that is, the individual knows what he is doing and what the consequences of his actions are. Thus, an insane person without control of his mental faculty cannot be guilty of a crime as he does not and cannot have intent.
A child of tender age is in a similar situation. The child puts his fingers into electric sockets, spills oils and sauces all over and rides his bike on the wrong side of the road and sometimes in the middle of it. A child can also play with his parent’s gun and set it off and kill someone. But no one will seriously condemn the child to death or to a life of imprisonment.
From the first principle, the first question to answer is this — at what point do we draw the line of minimum age of criminal responsibility? At what age can a child or a minor, defined as anyone less than 18 years of age, can he be considered to be capable of determining right or wrong, the intent of his action and its consequence?
It is conceded that at nine years old or below, the child is utterly innocent. It is also conceded that at 15 and above, the minor is already in a position to choose between good and bad. Internationally, the chronological age is set between 12 to 14. If the country picks any number within this range, it is consistent with studies, research, and experience. It is then a matter of legislative policy and societal consensus.
The second point which must be quickly put away is the argument that we should set the minimum bar at the highest possible point because our jails are not places for children and that our jails are congested. This is a fallacy. It is incorrect to say that a child has committed a crime and must go to jail. From the restorative justice perspective, there are a hundred ways of approaches to mentor a child and control his behavior. These include homestays, counselling, loss of access to games or devices, to tree-planting, sports program or basic forms of community service.
It is harmful and self-defeating for child-rights advocates to keep on calling for imprisonment as the only or main answer to the problem of children’s wrongdoings.
What is essential, and this is the third point, is the specific act or omission of the minor who has breached a social rule or a binding law. For example, if a 10-year-old girl spits on a classmate, it is wrong but it is not a crime. If a 17-year-old girl spits on a rival in a basketball game, it is slander by deed — a crime.
By way of nomenclature, it is not proper to label it as “age-appropriate” offense for there is no age or time that it is appropriate to commit an offense. Rather, it is technically termed as “age-specific” offense.
To continue, if a 15-year-old boy taunts his obese classmate, he is responsible for the bullying with the appropriate school and parental sanctions. If he also flying-kicks this classmate causing injuries, he is not innocent. A kick is not done without intent to hurt or harm. The additional institutional response may be to remove him from his social group to prevent further or future destruction to others and to himself.
Society through the State may impose preventive, remedial, punitive, or corrective means in the fulfillment of its duties as protector of those whose rights are affected, avoiding the need of the victims to resort to revenge to redress, and in the pursuit of the harmony and balance of the community.
And this is where the fourth point comes to bear. If the minimum age is set at too high a mark, this absolutely removes this set of offenders from the ambit of the law. The exemption from criminal liability is full, complete and absolute. The child can do no wrong; the minor can do no crime. This is contrary to human experience.
It is also against sound policy as the State is rendered helpless even to require alternative modes of rehabilitation or punishment that is necessary for the offender and essential for the victim and both their families. It is made ineffectual to mandate discipline erring members of the community.
In sum, all children are innocents but can commit wrongs. Wrongs that are not age-specific can be crimes that require action and response from the State. Incarceration is not the first or only option. Setting the appropriate age when criminal intent can exist is a responsibility that requires clear thinking.