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 under 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.[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 behaviors 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 currently eight years, however age of criminal prosecution was raised to 12 in 2010.[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 11-13 [63]
 India 7
 Myanmar 7
 Nigeria 7
 Pakistan 7
 Singapore 7
 Sudan 7
 Tanzania 7
 Antigua and Barbuda 8 [5] According to Articles 1 and 3 of the Juvenile Act, Courts must have regard to the welfare of those under 16.
 Indonesia 8
 Kenya 8
 Bangladesh 9
 Ethiopia 9
 Iran 9 (girls); 15 (boys) [6][7]
 Australia 10 [8] Age of criminal responsibility in Australia.
Rebuttable presumption of incapacity of committing crime: under 14.[8][9]
 Hong Kong 10 [10]
 Malaysia 10 [11][12] Malaysia has a dual system of secular and Islamic law, which has resulted in a number of different minimum ages of responsibility depending on which branch of the law is applicable.
  • Under the Penal Code, a person can be held criminally responsible from the age of 10. [Penal Code, Article 82. See also Child Act Article 2]
  • Under the Syariah Criminal Offences (Federal Territories) Act 1997, Muslim children can be held criminally responsible from the onset of puberty. [Syariah Criminal Offences (Federal Territories) Act 1997, Articles 2 and 51]
  • Offences under the Internal Security Act can be prosecuted regardless of age. [Essential (Security Cases) Regulations 1975, Article 3]
   Nepal 10
 New Zealand 10 [13][14] Rebuttable presumption of incapacity until age 14. Children aged 10 and 11 can only be convicted of murder or manslaughter; children aged 12 and 13 can only be convicted of crimes with a maximum imprisonment of 14 years or more. See Youth justice in New Zealand.
 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 [15][16][17][18] 10 in England, Wales and Northern Ireland; 12 in Scotland. Although the age of criminal responsibility in England, Wales and Northern Ireland is 10, usually persons aged 10–11 will only be imprisoned in very serious cases, such as murder. Even more so the outcome for youth (12–17) criminal proceedings are usually age categorised (currently it will depend on whether the offender is under 12, under 14, under 16 or under 18, with the older the offender the more severity of punishment, especially for serious crimes). Currently Persons aged 10–17 are usually dealt with differently under UK law as "juveniles" and in most criminal cases, attend a Youth Court, as opposed to an adult Magistrate Court (for minor offences, such as petty shoplifting/theft, common assault, etc.) or Crown Court (for serious offences, such as murder, rape, robbery, etc.). By the current way UK law and courts work, it would be very rare that a person under 15 would get a custodial sentence for a minor offence, and it would be almost non existent for a person under 12 to get a custodial sentence for a minor offence, unless they are a "constant offender" and are regarded a danger to the public. In serious criminal cases such as murder, rape, etc. a person under 18 will be dealt with by the law and courts in the same way as a person 18 or over, most probably in a Crown Court.

In Scotland, 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.

 Afghanistan 12 [19] According to Articles 12 and 45 of the Juvenile Code, children aged 7–12 can be subject to warnings, supervision by social services, or confinement to a rehabilitation centre.
 Andorra 12 [20]
 Canada 12 [21]
 Costa Rica 12 [22] 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 [23] 12 only for premeditated homicide, voluntary manslaughter and bodily harm leading to death or resulting in life-threatening injuries; 14 for other crimes.[23]
 Ireland 12 [24] Children aged 10 or 11 can be charged with murder, manslaughter, rape or aggravated sexual assault.
 Israel 12
 Morocco 12
 Netherlands 12
 Turkey 12
 Uganda 12
 Algeria 13 [25] Children aged 13–18 are subject to attenuated penalties.
 France 13
 Albania 14 [26] Article 1 of the Code distinguishes between offences and contraventions. Article 12 mandates that the latter (which are less serious) have a higher age limit of 16.
 Armenia 14 [27]
 Angola 14 [28] Minimum and maximum sentences are reduced by two thirds between 14 and 16, and half between 16 and 18. The needs of rehabilitation and social reintegration are also to be taken into account for under 18s.
 Austria 14 [29]
 Azerbaijan 14 [30]
 Bolivia 14 [31][32] 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[10] and in Macau, 16.
 Croatia 14 [33] 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 [34] 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 [35]
 Paraguay 14 [36] Offenders between 14 and 17 can be sentenced to a maximum of 8 years of imprisonment.
 Romania 14
 Russia 14 [37] 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 [38]
 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.[39]
 Ukraine 14
 Vietnam 14
 Czech Republic 15 [40]
 Denmark 15
 Egypt 15
 Finland 15 [41]
 Iceland 15
 Norway 15 [42]
 Philippines 15 [43][44] 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.[45]

 Poland 15–18 [46] 17 is the standard age of criminal liability in Poland. Minors from the age of 15 can be tried as adults if so decided by the Supreme Court, which can decide so only in relation to especially heinous crimes 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 above the age of 17 but below the age of 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 liability age is 13. Juvenile educational and therapeutic proceedings liability applies to all persons under the age of 18 (including persons below 13 years of age).[47]
 Sweden 15
 Uzbekistan 15
 Argentina 16 [48][49]
 Belgium 16 [50]
 Chile 16 [51][52]
 DR Congo 16 [50]
 Portugal 16 [53]
 Cuba 16 [54]
 Brazil 18 [55][56][57][58]
 Colombia 18 [57]
 Ecuador 18 [59]
 Mexico 18 [60]
 Peru 14 [57] 18 is the standard age of criminal liability in Peru. However, minors from 16-17 years old at the moment of the crime may be subject to 6 to 10 years in prison in case of homicide, feminicide, extortion, vandalism, rape or being member of a criminal gang. Minors from 14-15 years at the moment of a crime may be subject to 4 to 8 years in prison.
 Uruguay 18 [61]

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.

See also[edit]


  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. ^ Juvenile Act, Article 8
  6. ^ "Iran Human Rights Documentation Center – Criminal Responsibility of Children in the Islamic Republic of Iran's New Penal Code". Retrieved 28 July 2015. 
  7. ^ "Iran urged to increase age of criminal responsibility for children". 17 March 2014. Retrieved 28 July 2015. 
  8. ^ a b "CRIMES ACT 1914 s 4M". Retrieved 28 July 2015. 
  9. ^ "CRIMES ACT 1914 s 4N". Retrieved 28 July 2015. 
  10. ^ a b Section 3 of the Juvenile Offenders Ordinance 2003 (Chapter 226, Laws of Hong Kong)
  11. ^ "UNICEF Malaysia – Child Protection – Justice for Children". UNICEF. Retrieved 29 August 2015. 
  12. ^ "Minimum Ages of Criminal Responsibility in Asia". CRIN. Retrieved 29 August 2015. 
  13. ^ "Sections 21–22, Crimes Act 1961 No 43". Parliamentary Counsel Office (New Zealand). Retrieved 26 August 2015. 
  14. ^ "Children, Young Persons, and Their Families Act 1989". Retrieved 28 July 2015. 
  15. ^ 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]
  16. ^ "Age of criminal responsibility". Retrieved 28 July 2015. 
  17. ^ Report on the Draft Justice (NI) Bill of the Northern Ireland Assembly's official website
  18. ^ "Criminal Justice and Licensing (Scotland) Act 2010". Retrieved 28 July 2015. 
  19. ^ Afghanistan Juvenile Code, Article 10
  20. ^ Criminal Code of Andorra, Article 2
  21. ^ Criminal Code, RSC 1985, c C-46, s. 13; may receive reduced sentencing under the Youth Criminal Justice Act until age 18.
  22. ^ "La mayoría de los países de América latina ya tiene un régimen penal juvenil". Retrieved 28 July 2015. 
  23. ^ a b "Justice ministry rejects UNICEF criticism of new criminal code provisions on youthful offenders". Retrieved 28 July 2015. 
  24. ^ "Children and the criminal justice system". Retrieved 28 July 2015. 
  25. ^ Algerian Penal Code, Article 49
  26. ^ Criminal Code of the Republic of Albania, Article 12.
  27. ^ "Criminal Code (2003) Article 24". Retrieved 2015-12-16. 
  28. ^ "Angola". Retrieved 28 July 2015. 
  29. ^ "Jugendgerichtsgesetz (1988) §1(1–2) and 4". Retrieved 2015-12-16. 
  30. ^ "Criminal Code of the Azerbaijan Republic (2000) Article 20 (1–2). [Note: unofficial translation.]". Retrieved 2015-12-16. 
  31. ^ "Rige Ley donde se reduce la edad de imputabilidad de los menores". Retrieved 28 July 2015. 
  32. ^ "Bolivia – Edad de responsabilidad penal ordinaria es desde los 18 años – JORNADA". Retrieved 28 July 2015. 
  33. ^ "Kazneni zakon". Retrieved 28 July 2015. 
  34. ^ "Criminal Code (Strafgesetzbuch, StGB)". Retrieved 28 July 2015. 
  35. ^ Japanese Penal Code (Act No.45 of 1907), article 41 [2]
  36. ^
  37. ^ "СТ 20 УК РФ. Статья 20. Возраст, с которого наступает уголовная ответственность". Retrieved 28 July 2015. 
  38. ^ Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores (Spanish)
  39. ^ Criminal Code of the Republic of China
  40. ^ Klaus podpisem stvrdil trestní odpovědnost i legální sex od 15 let –
  41. ^ Penal Code 3:1 § (39/1889, as changed by 515/2003). Retrieved 10-31-2007.
  42. ^ Penal Code Almindelig borgerlig Straffelov (Straffeloven) § 46 (changed of law 12 Jun 1987 nr. 51). Retrieved 19/7 – 2007.
  43. ^ "RA9344: Juvenile Justice and Welfare Act of 2006". Chan Robles Law Library. April 28, 2006. 
  44. ^ "PNoy signs law retaining minimum age of criminal liability". Yahoo News. October 8, 2013.  External link in |publisher= (help)
  45. ^ "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)
  46. ^ "Article 10 of Polish Penal Code of 1997" (PDF). 
  47. ^ "Przepisy ogólne". Retrieved 28 July 2015. 
  48. ^ "Debates Over Lowering the Criminal Responsibility Age". The Argentina Independent. Retrieved 28 July 2015. 
  49. ^ "Ley 22.278 Régimen Penal de la Minoridad Articles 1–2". Retrieved 2015-12-16. 
  50. ^ a b
  51. ^
  52. ^ "Ministro de Justicia descarta rebaja en edad de responsabilidad penal adolescente". Emol. Retrieved 28 July 2015. 
  53. ^ Ana Cristina Pereira. "Responsabilidade criminal deve passar dos 16 para os 18 anos de idade". PÚBLICO. Retrieved 28 July 2015. 
  54. ^
  55. ^ Federal Constitution (in Portuguese), Article 228. Retrieved 02-01-2011.
  56. ^ Estatuto da Criança e do Adolescente (pt), Seção V. Retrieved 02-05-2013
  57. ^ a b c "Progress of Nations 1997 Special Protections – Progress and Disparity". Retrieved 28 July 2015. 
  58. ^ "Folha de S.Paulo". Retrieved 28 July 2015. 
  59. ^ "Adolescentes infractores, en la mira de Código Penal". El Telegrafo, telegrafo, diario, Ecuador, noticias, noticias de Ecuador, decano de la prensa nacional. Retrieved 28 July 2015. 
  60. ^ "Fiscal pide rebajar edad penal en México tras liberar a supuesto niño-sicario". Terra. Retrieved 28 July 2015. 
  61. ^ "Uruguayans reject constitutional reform on criminal responsibility". GlobalPost. Retrieved 28 July 2015. 


Further reading[edit]

  • Maher, Gerry. "Age and Criminal Responsibility. 2005 Vol 2. Ohio State Journal of Criminal Law. 493 [3]
  • 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.
  1. ^ "Age by state 2017" (PDF).