Defense of infancy

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The defense of infancy 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.

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 (13 years, 364 days 23'59'59" aged) 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.[1] 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.[2]

The age of criminal responsibility[edit]

Governments 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:

  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 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 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.

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.


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 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.[3] 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 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 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.

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 criminal responsibility is twelve years.[4] 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 the United States, the age varies between states, being as low as six years in South Carolina and seven years in 35 states; 11 years is the minimum age for federal crimes.

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.

Some countries refuse to set a 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 dispense mitigated criminal sentences 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.

Ages of criminal responsibility by country[edit]

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

Country Age Reference Notes
 United States 6-12 [5] Age determined by each state; the minimum age is 6 (North Carolina);[5][6] however, only 15 states have set minimum ages,[5] which range from 6 to 12 years. States without statutory minimum ages rely on common law, which means that 7[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
 Indonesia 8
 Kenya 8
 Bangladesh 9
 Ethiopia 9
 Iran 9 (girls); 15 (boys) [8][9] 9 for girls; 15 for boys
 Australia 10 [10] Age of criminal responsibility in Australia.
Rebuttable presumption of incapacity of committing crime: under 14.[10][11]
 Hong Kong 10 [12]
   Nepal 10
 New Zealand 10 10 years for murder and manslaughter, 12 for crimes with a maximum imprisonment of fourteen years or more; 14 for all other offences.[13]
 South Africa 10 The Child Justice Act 75 of 2008 came into effect 1 April 2010. There is a rebuttable presumption that a child between the ages of 10 and 14 lacks criminal capacity.
  Switzerland 10
 Thailand 10
 United Kingdom 10 [14][15][16][17] 10 in England, Wales and Northern Ireland; 12 in Scotland
 Canada 12 [18]
 Costa Rica 12 [19] 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
 Hungary 12 [20] 12 only for premeditated homicide, voluntary manslaughter and bodily harm leading to death or resulting in life-threatening injuries; 14 for other crimes.[20]
 Ireland 12 [21]
 Israel 12
 Morocco 12
 Netherlands 12
 Scotland (UK) 12 [22] If a compulsory intervention is considered necessary, a child aged between 8 and 12 years may be dealt with through the Children's Hearings system.
 Turkey 12
 Uganda 12
 Algeria 13
 France 13
 Austria 14
 Bolivia 14 [23][24] Lowered in July 2014, from 16 to 14
 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[25] and in Macau, 16.
 Croatia 14 [26] 14 for all crimes under the general provisions of the Criminal Code; special provisions may apply for some crimes up to the age 21.
 Estonia 14
 Germany 14 [27] Minors between 14 and 18 years are sentenced by juvenile justice. An adult between 18 and 21 years may still be sentenced by juvenile justice if considered mentally immature.
 Italy 14 Juvenile judiciary system for offenders aged between 14 and 18; separate juvenile jails. Full criminal responsibility from age 18.
 Japan 14 [28]
 Paraguay 14 [29] Offenders between 14 and 17 can be sentenced to a maximum of 8 years of imprisonment.
 Romania 14
 Russia 14 [30] 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
 South Korea 14
 Spain 14 [31]
 Taiwan 14 Offenders aged 14 to 18 years qualify for reduction of sentence under section 18 of the Criminal Code. The death penalty and imprisonment without term cannot be applied to offenders aged 14 to 18 years.[32]
 Ukraine 14
 Vietnam 14
 Czech Republic 15 [33]
 Denmark 15
 Egypt 15
 Finland 15 [34]
 Iceland 15
 Norway 15 [35]
 Philippines 15 [36][37] A person who is fifteen years old or younger at the time of the offense shall be exempt from criminal liability. However, the minor shall be subjected to an intervention program.

A person who is older than fifteen but younger than eighteen years shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment.

Discernment means the mental capacity to understand the difference between right and wrong and its consequences.[38]

 Poland 15 [39] 17 to most crimes, but minors who are 15 or older can be judged as adults if so decided by the Supreme Court, what is done especially in relation to heinous crimes and 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 or corrective measures have proved ineffective." On the other hand, the Court may choose to apply juvenile measures for perpetrators between the ages 17 and 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 responsibility from the age of 13. Juvenile educational and therapeutic proceedings responsibility for all persons below the age of 18 (including persons below 13 years of age).[40]
 Sweden 15
 Uzbekistan 15
 Argentina 16 [41][42]
 Belgium 16 [43]
 Chile 16 [44][45]
 DR Congo 16 [43]
 Portugal 16 [46]
 Brazil 18 [47][48][49][50]
 Colombia 18 [51]
 Ecuador 18 [52]
 Mexico 18 [53]
 Peru 18 [54]
 Uruguay 18 [55]

Child imprisonment[edit]

Child imprisonment is a concept in criminal law where people are considered not old enough to be held responsible for their criminal acts. The main problem in most countries is whether children should be punished as an adult for crimes committed as a juvenile, or if special treatment is a better solution for the offender.

Juvenile courts[edit]

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



  • Rehabilitation (counseling and psychiatric treatment) is seen by some critics as a soft option that will make children believe that they are spending short periods of time in a holiday camp[dubious ]. In the US, more than half the boys who were put under counseling orders after offences rather than under detention ended up re-offending during the period they were undergoing counseling.[citation needed]


  • Child crime is different from adult crime in that the offenders are, in most legal systems, not deemed to be fully conscious moral individuals. As such, the best way to deal with them is through rehabilitation rather than punishment.
  • The only long term solution to juvenile crime is reform of the child. Children are more susceptible to reform and the rate of recalcitrance for child offenders under counseling in the US is significantly lower than that of adult offenders. Even if some end up re-offending, it does mean that just under half of those who had been given the chance to return to normal life took up that chance and did not re-offend. Putting them in a prison, and even worse with adult offenders is likely to increase the chance of recalcitrance because they will be in the same environment as other offenders who will be a negative influence on them.[citation needed]


  1. ^ In fact capacity was a necessary element of the state's case. 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.
  2. ^ Essentially the defense was the same as the insanity defense with immaturity being the mental illness or mental defect.
  3. ^ Dalby JT. (1985). "Criminal liability in children". Canadian Journal of Criminology 27: 137–145. 
  4. ^ Criminal Justice and Licensing (Scotland) Act 2010, s 52; Easton S and Piper C (2012). Sentencing and Punishment: The Quest for Justice (3rd ed.) Oxford: Oxford University Press. p. 256. ISBN 0-19-969353-6
  5. ^ a b c "Children in the US Justice System". Amnesty International USA). 
  6. ^ Brash, Don (21 March 2005). "Saving a generation of young people". New Zealand National Party. Retrieved 31 October 2012. 
  7. ^ "Old enough to be a criminal?". UNICEF United Nations Children's Fund). 
  8. ^ Criminal Responsibility of Children in the Islamic Republic of Iran's New Penal Code
  9. ^
  10. ^ a b Ages of criminal responsibility in Australian jurisdictions, Australian Governments official website
  11. ^
  12. ^ Section 3 of the Juvenile Offenders Ordinance 2003 (Chapter 226, Laws of Hong Kong)
  13. ^ Children, Young Persons, and Their Families Act 1989 No 24 (as at 23 July 2011), Public Act – New Zealand Legislation
  14. ^ The Children and Young Persons Act 1933 (23 & 24 Geo.5 c.12), section 50; as amended by The Children and Young Persons Act 1963 (c.37), section 16(1) [1]
  15. ^ Young offenders section of the UK Governments official website
  16. ^ Report on the Draft Justice (NI) Bill of the Northern Ireland Assembly's official website
  17. ^ Criminal Justice and Licensing (Scotland) Act 2010
  18. ^ Criminal Code of Canada, s. 13; may receive reduced sentencing under the Youth Criminal Justice Act until age 18.
  19. ^
  20. ^ a b
  21. ^ Children and the criminal justice system in Ireland, Irish Government official website
  22. ^ Criminal Justice and Licensing (Scotland) Act 2010
  23. ^
  24. ^
  25. ^ Section 3 of the Juvenile Offenders Ordinance 2003 (Chapter 226, Laws of Hong Kong)
  26. ^ [2]
  27. ^ StGB §19
  28. ^ Japanese Penal Code (Act No.45 of 1907), article 41 [3]
  29. ^
  30. ^ Статья 20 (СТ 20 УК РФ). Возраст, с которого наступает уголовная ответственность | Уголовный кодекс РФ
  31. ^ Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores (Spanish)
  32. ^ Criminal Code of the Republic of China
  33. ^ Klaus podpisem stvrdil trestní odpovědnost i legální sex od 15 let -
  34. ^ Penal Code 3:1 § (39/1889, as changed by 515/2003). Retrieved 10-31-2007.
  35. ^ Penal Code Almindelig borgerlig Straffelov (Straffeloven) § 46 (changed of law 12 Jun 1987 nr. 51). Retrieved 19/7 - 2007.
  36. ^ "RA9344: Juvenile Justice and Welfare Act of 2006". Chan Robles Law Library. April 28, 2006. 
  37. ^ "PNoy signs law retaining minimum age of criminal liability". Yahoo News. October 8, 2013. 
  38. ^ "En Banc Supreme Court resolution on Proposed Rule on Juveniles in Conflict With the Law". Chan Robles Law Library. effective April 15, 2002.  Check date values in: |date= (help)
  39. ^ "Article 10 of Polish Penal Code of 1997". 
  40. ^
  41. ^
  42. ^
  43. ^ a b
  44. ^
  45. ^
  46. ^
  47. ^ Federal Constitution (in Portuguese), Article 228. Retrieved 02-01-2011.
  48. ^ Estatuto da Criança e do Adolescente (pt), Seção V. Retrieved 02-05-2013
  49. ^
  50. ^
  51. ^
  52. ^
  53. ^,d779383d77fcc310VgnCLD2000000ec6eb0aRCRD.html
  54. ^
  55. ^

Further reading[edit]

  • Maher, Gerry. "Age and Criminal Responsibility. 2005 Vol 2. Ohio State Journal of Criminal Law. 493 [4]
  • 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.