age of criminal liability
age of consent
Sex offenses by juveniles
Abstract: What is a realistic role for criminal law in the reaction to juvenile sex offenders? To answer this question we have to know what the definition is of juvenile sex offenders and whether or not every juvenile offender has criminal liability. In this regard I have examined psychological theories. It appears that there are no clear indications in any of these theories that a general minimum age exists as such that would make it pointless to prosecute an offender. Since there is no behavioral theory that indicates that the re-educational task of criminal law should be withheld from minors, I conclude that the discussion about whether there should be a minimum age with regard to criminal liability is not so useful. Important is the conclusion that the age of the offender is not a reason to withhold a criminal law reaction. Criminal law is the only just means for stipulating wrongdoing and the condemnation of sex offenders. Otherwise, the offender and his family would be encouraged in their denial and minimization. Without age restrictions with regards to the offender, the juvenile criminal court could react more effectively to concrete sexual offenses in the individual cases. Criminal law, not a civil Child Protection Act, should have an important role in giving conditions for a long term compulsory treatment for juvenile sex offenders.
It is an universal principle that juvenile offenders are treated
differently from adult offenders.(1) The goal for
any reaction by the juvenile justice system to offenses committed by juveniles
should be to ensure that there is less chance that these juveniles will
NEWS: The two convicted murderers Jon Venables and
Robert Thomson will be released from prison in February 2001. The two juveniles
who killed James Bulger in 1990 are both eighteen now. The Supreme court of
To discuss these questions I will give a survey of ages of criminal
liability in the course of history. No age of criminal liability and responsibility
-nor an age of consent- has proven to be the one and only. I will also note
some facts from psychological knowledge about more effective methods of
reaction. Later I will make some remarks about sex offenses in criminal law and
about the impact these have on juveniles who are starting to explore their
sexuality. At the end of the discussion I will take the position that the
criminal law has a very important task in responding to sex offenses committed
II. The various ages of criminal liability
The age of criminal liability
diverges in different places and in the course of time. In most countries the
age reference date is the moment that the alleged offense was committed. In the
past many different age limits have been in force. In ancient times minors
where not seen as a special group of human beings and therefore treated as
adults. Nevertheless, in the 5th century, youth was used as grounds for
exclusion from criminal prosecution.(2) In Grotius'
time (17th century) a person was declared of age
Nowadays three different approaches exist in the Western world. One
approach is of setting a special minimum age of criminal liability &
responsibility. This is what the Convention on the Rights of Children
stipulates in article 40 part 3 sub a. The article requires that State Parties
to the Convention establish a minimum age below which children shall be
presumed not to have the capacity to infringe the penal law. In most societies
this age is around twelve years of age. The other approach is to let criminal
liability depend on the answer to the question whether the minor has acted with
sufficiently intellectual and emotional maturity to understand the wrongfulness
of his behaviour or not.
A number of states know absolute age-based minimums and discretionary
jurisdiction for youths between certain ages, such as 7 to 13. In this age
range, a youth may rely on the immaturity defense if it cannot be proven that
he had sufficient mental capacity to appreciate the consequences of the act
From 1811 to 1886 when the Code Pénal was in force in the
The discussion of having a minimum age or not and, if so, which minimum
age, was concentrated on the question which reaction to wrongdoing would be the
most effective for prevention of re-offending.(6)
To punish is a way of upbringing so it is a choice between upbringing by the
parents and upbringing by means of criminal penalty.(7)
Psychologists have proved that upbringing is most effective if done by loving
and caretaking parents. On the other hand, committing criminal offenses by
juveniles is an indication that the upbringing has not been completely
successful. Therefore it has been argued that from the moment the upbringing is
influenced by people other than the parents - the moment children go to High
school - it would be the most suitable time to activate criminal law
enforcement if indicated. The entrance of High school, around the age of 14, is
a stage of development in childhood in which the bonds with parents are
loosened and as such the right moment to put more personal responsibility on
the juvenile. Note that this age in general is also the start of puberty.(8)
- In the cognitivistic approach, no specific age can be designated at
which a person has reached a certain level of development such that he can be
considered susceptible to criminal liability.
- The psychoanalytic theory also knows no particular age at which the
transition to the next phase is necessarily completed.
- According to the social learning theory there is no specific age at
which a person develops the capacity to learn.
- Nor does the personality approach give an age at which the personality
is considered matured.
The author concludes that it is not possible to indicate a certain age
at which people become morally sufficiently developed to be held (fully or
partly) responsible for their deeds.(10) Because no
chronological age can be indicated, Bol argued in 1991, it is preferable that
the judge - not the legislator - determines in each individual case to what
degree the suspect can be held responsible.(11)
Another argument she gives for abolishing the Dutch minimum age limit (for
criminal liability) is: `precisely for the instillment of a sense of guilt and
responsibility, punishment itself is an indispensable instrument. It is logical
and most intelligible for the person being punished, that the punishment of
criminal behaviour from a young age on is applied on the basis of criminal law
rather than civil law or welfare work.'(12)
IV. Conditions of the penalty
Article 37 sub c of the Convention on the Rights of the Child states
that every child deprived of liberty shall be treated with humanity and respect
for the inherent dignity of the human person and in a manner which takes into
account the needs of persons of her or his age. Criminal prosecution and
punishment therefore do not have to be cruel; it is reasonable to respond
leniently to a juvenile offender but it has to be very clear that a social norm
has been violated and society does not accept this.
If we really want to take into account the needs of the minor, the
penalty should have to meet some conditions.
1. The reaction should not be too mild, because if punishment begins at
a very low level of intensity and gradually increases, it may evoke new
criminal behaviour rather than suppress it; this is the opinion of some
2. I would like to add that dismissing the case of a first offender
could evoke new criminal behaviour also.
3. It should stress the re-education of harmonious behaviour to
society(rules) which, in my opinion, will include improving the level of social
skills. Lack of social skills can result in loss of commitment, attachment,
involvement and beliefs in society which, for the criminologist Hirschi, is the
main reason individuals start offending.
4. Another condition for the penalty should be that it is implemented as
soon as possible after the offense.
5. It should be a rule that it is explained why the act of the offender
is wrong and why he will be punished.
6. Last but not least there should be a relation between offense and
penalty. The correlation between the two should be both the severity(14)
and the re-educational aspect of the penalty.
To meet the needs of these conditions, understanding of what precisely
sex offenses committed by juveniles are is necessary, therefore I will
concentrate my discussion on sex offenses committed by juveniles now.
V. Sex offenses committed by juveniles
In order to pursue a sound argument, it is important to know that sexual
offenses in different countries are defined differently. Therefore the
following is a survey of these offenses.
- In almost every country, touching the genitalia of another person for
a sexual purpose is a criminal offense unless the other person freely consents.
- Sexual intercourse is everywhere a crime if one person is forced to
In different societies there are differences about whether rape is possible
- Sexual intercourse with a child below a certain age -(the age of consent)-, is in most jurisdictions an offense
even if the child had allegedly consented to.
- In some states, there is a statutory minimum age for certain types of
sexual offenses. A juvenile below a specified age is regarded as legally
incapable of committing such an offense. In
- In some jurisdiction the sex of the offender also plays a role in
determining whether the act is a criminal act or not. A male, regardless of his
age, who is involved in consensual sexual relations with a female under a
specific age commits a crime, even if the male is of the same age or younger. However
it may not be an offense for a female over an age of 18 to engage in sexual
relations with a male under that age.(16)
- In several American states as well as in many European countries,
individuals who engage in private consensual homosexual acts are guilty of an
In other countries such as
In my opinion the sexual offenses should meet the following conditions.
1. If in a sexual contact one or more of the parties do not agree to it,
it should be an offense. In that perspective, rape as described as sexual
intercourse without the consent of both parties should be prohibited.
2. If there is some sort of force, threat or other clear action that
stimulates a person to do something he or she would not do without these means,
it should also be considered a sexual offense.
3. If two or more persons commit a consensual sexual act where every
party agrees, it should be free from the threat of criminal prosecution. For
decriminalization it is important to know which sexual acts are not determined
as neurological illness by the DSM-IV norm.(20)
Homosexuality is nowadays not determined as an illness, nor is sex between
children. This means that children having consensual sexual contacts together
should be accepted. If in a society homosexuality is accepted for adults it
should equally apply for juveniles as well.
VI. Criminal prosecution of juvenile sex offenders?
As a community we have the task to give a framework for what acts are
accepted and what individual acts - no matter what age of the offender - are
unacceptable. It is in the interests of both society and the individual that
each person learns as early as possible what his family, peers and other
members of the community expect of him. I have said that it seems to be more
effective if a caring and loving close person corrects the offender, but indeed
if an individual commits an offense at least internalization of right and wrong
has failed. Without wanting to blame parents there seems to have been a
shortcoming in the upbringing. Let the criminal law, criminal liability and
prosecution then have a role in the upbringing in societal norms.(21)
For the juvenile it is more clear that he violated an important social
norm if been penalized in a criminal trial than to be punished by a civil child
protection measure. The latter must not be used for something else than
protecting the child against his parents. To use a child protection act to
punish the juvenile offender is an abuse of that competence and would also be
less educative to the minor. Treating a juvenile sex offender as a non-criminal
would encourage the offender and his family in their denial and minimization of
In different times and different places, more than one approach has
evolved towards the question of the age of criminal liability. Very likely, one
approach is no better than an other and, if so, any age limit is arbitrary. As
I said before according to some psychologists it is not possible to indicate a
certain age at which people become morally sufficiently developed to be held
(fully or partly) responsible for their deeds. This could lead to the
conclusion of abolishing the age floor. If there are nevertheless reasons to
have an age under which juveniles is irrefutable presumed to lack criminal
capacity that can be accepted. For me the question -What to do with the juveniles
who bear criminal liability for their deeds?- is more important to be answered.
1. We should look for effective ways to distinguish between deviant
sexual development and child development where they explore kinds of sexual
behaviour in order to find their own harmonious sexual drive without anyone
feels victimized to the act of the juvenile.
2. The juvenile sex offender has to be shown that his acts are not
acceptable. Demarcation behaviour has to be done both in cases of first
offending and in cases of less harmful behaviour, such as exhibitionism. I
propose that it is reasonable that every child that has passed the age floor
will be confronted with a criminal charge of their sexual offense.
3. After conviction the juvenile should not be sentenced to
incarceration without treatment because this only strengthens the loss of
commitment with society and will encourage future sexual offenses. The offender
should be `punished' by a sentence to immediately specialized compulsory (but
not necessary residential) treatment.(23) In this
programm there should be no taboo on talking about sex (offenses). The sanction
should be focused solely on rehabilitation of the offender, and within that on
diminishing the risk of recidivism. The goal is to let the offender get on
control of his unacceptable urge.
4. Sex offenses are seen by most psychologists as the result of a mental
illness. Although the reaction will be focused on cure or at least on
improvement of controlling the urge to commit sex offenses, the result in most
cases is not that the urge completely disappears. Herein I find an argument for
labelling and continuing monitoring after release of treatment over a period of
several years. For the more psychological distressed persons it is the only way
in order to help them to avoid re-offending. This check by labelling, and
registration in a legal database is in my opinion more justified within the
framework of criminal law than in civil law.(24)
Article 40 of the Convention on the Rights of the Child states that a
variety of dispositions shall be available such as educational and vocational
training programmes and other alternatives to institutional care, to ensure
that children are dealt with in a manner appropriate to their well-being and
proportionate both to their circumstances and the offense. As a society,
therefore, we have the obligation to give judicial acceptable compulsory
treatment to sex offenders in which they can learn to avoid re-offending. It is
not the severity of the punishment that gives result but the clearness of the
reaction. It is reasonable that the criminal law gives a clear reaction to
juveniles starting age 12 years. For these children not incarceration but help
by means of compulsory treatment is important to keep them from re-offending. Below
this age floor it is acceptable if the parents continue the upbringing of a
juvenile who committed a sexual crime. Hopefully the parents will ask for
specialized treatment of the children but it is not justified to enforce this
by asking for a child protection measure. Compulsory treatment of juvenile sex
offenders is in my opinion only justified if sentenced by the criminal law
Notes See also Boelrijk's thesis
1. See Article 40 of the
Convention on the Rights of the Child, ratified by 190 nations (update 1998).
2. Lex Salica (5th century);
according to this law, majority started at the age of 12, and therefore no
special juvenile criminal law system was needed.
3. Bala (1993) p.27 `a number of
states in the
4. 1811 -1886 Code Pénal; 1901
Dutch Criminal law (law of
6. Sheldon and Eleanor Glueck, One thousand juvenile delinquents, p.96:
`It is obvious that some organized attempt must be made to cope with the
anti-social behaviour of children as soon as it manifested itself. Treatment of
offenders would be much easier, if the process began nearer the time, when
misbehaviour first revealed itself.'
7. Opinions of Dutch criminal law
professors, Glastra van Loon (1961): The parents should raise their children. Only
if they have proven incapable of raising children and the juvenile is
threatened with physical or moral ruin would child protection acts be
reasonable. Hazewinkel-Suringa (1961): as early as possible a short, sharp
reaction by the criminal system is best. More recently Bartels and Fokkens
stated that punishment can be an element of a pedagogic approach. Bartels, J.A.C. en J.W. Fokkens, Het
jeugdstrafrecht in discussie, Proces,
jrg. 56, nr. 7/8, juli/augustus 1977, p.167-176, m.n. p.170.
8. Puberty -although not strictly
defined by psychologists- is the period between approximately 12 and 18 years
9. Bol, Menke W., Leeftijdsgrenzen in het Strafrecht, bezien vanuit de
10. Bol (1991) p. 146.
11. Bol (1991) p. 136.
12. Bol (1991) p. 148.
13. Bol (1991) p. 106 and 129.
14. See Bartels, Han, and Jan Watse
Fokkens, Het Jeugdstrafrecht in discussie, Proces
15. It is known as rape, sexual
assault, and aggravated sexual assault.
16. Michael M. v. Superior Court,
18. Bowers v. Hardwick
19. Modinos v.
20. American Psychiatric
Association, (1994), Diagnostic and
Statistical Manual of Mental Disorders, (DSM-IV).
21. See also Bol (1991) p.107. (A
different opinion: R.W. Jongman.)
22. National Adolescent Perpetrator
Network (1988), assumption 127.
23. Barbaree (1993) p. 243-263.
24. see Hazewinkel-Suringa (1936)
p. 330. and (1961) p. 268, also Barbaree (1993) p. 251.
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