Criminal liability

THE AGE OF CRIMINAL LIABILITY FOR JUVENILE SEX OFFENDERS Š1996.

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.

I. Introduction

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 re-offend. In Europe we were shocked by the incident with Jamie Bulger. This four year old English boy, was stoned to death by two boys age eight and ten. As a reaction to these kind of cruelties committed by young juvenile offenders it was reconsidered whether or not the criminal law system should have a role in the reaction to these youngsters. An important question, the question of the `age floor' is than: "At which age a person can be held liable under criminal law for his actions? And if so what would be the appropriate reaction?"

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 England considered October 26th, 2000 that de boys should be released because they have served the minimum imprisonment for this crime and prolonging of imprisonment would mean transporting the boys to an adult prison.

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 by minors.

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 at 12 years for girls and 15 for boys. The French Code Pénal, which has had great influence on many criminal law systems in both Europe and America did not have a minimum age of criminal liability.

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 charged.⁽³⁾

From 1811 to 1886 when the Code Pénal was in force in the Netherlands, and in the period 1901 to 1965 this country did not have a minimum age.⁽⁴⁾ From 1965 to the present the minimum age limit is set at 12 years. Special juvenile procedures and sanctions are applicable till age 18, and in exceptional circumstances age 21. In North America, the minimum age of juvenile court jurisdiction varies from 6 to 12, with many states setting the lowest age of criminal responsibility at 10. Canada has a minimum age of 12.⁽⁵⁾ In some other countries there is no statutory minimum age. There it must be established in each case that the juvenile in question displayed sufficient intellectual and emotional maturity to justify a criminal conviction.

III. Upbringing and criminal liability

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 Netherlands, Menke Bol studied if the assumption is correct that below a certain age children are not yet sufficiently developed to be able to bear criminal responsibility, and the principle of reproachable guilt would therefore not apply to them.⁽⁹⁾ It appears that there are no clear indications in any of the psychological theories that a general minimum age exists as such that would make it pointless to prosecute an offender.

- 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 psychologists.⁽¹³⁾

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 submit.⁽¹⁵⁾ In different societies there are differences about whether rape is possible within marriage.

- 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 New York State it is always an offense, for instance, if an offender of 15 years has a consensual sexual relation with a person 13 years of age. In Canada the offender has to be at least 16 years of age at the time of acting before he or she can be charged.

- 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 offense.⁽¹⁷⁾ In other countries such as Canada individuals under the age of 18 who have consensual anal intercourse are guilty of an offense.⁽¹⁸⁾ In 1993 the European court of Human Rights decided that the existence of the prohibition of homosexuality continuously and directly affects a citizen's private life and therefore is a breach of Article 8 of the European Convention on Human Rights.⁽¹⁹⁾

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 harmful sexuality.⁽²²⁾

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.

VII. Conditions for the criminal law reaction towards juvenile sex offenders

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⁾

VIII. Conclusion

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 system.

Notes See also Boelrijk's thesis 1997.

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 USA'.

4. 1811 -1886 Code Pénal; 1901 Dutch Criminal law (law of February, 12th, 1901, S 63) has been changed in 1965 (law of November 9th, 1961, S 402)

5. Germany: 14 years; England: 10 years; France: 13 years. In Scotland and Sweden offenders are corrected by civil law till age 15. The Rumanian Penal Code -which is a culmination of the 1910 French Penal Code and to a certain extent, the 1851 Prussian Code- has 14 years age limit. Between 14 and 16 years the condition of liability will be required, according to the Rumanian Penal Code. South Africa: under 7 years of age the child is irrefutably presumed to lack criminal capacity. Between the age of seven and fourteen, the child is refutably presumed to lack criminal capacity (see Snyman, C.R., Criminal Law (Strafreg), Durban 1982, p.168).

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 of age.

9. Bol, Menke W., Leeftijdsgrenzen in het Strafrecht, bezien vanuit de ontwikkelingspsychologie. Arnhem 1991, Gouda Quint.

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 nr.2 februari 1976, p.23-34. With a reference to Denkers, F.A.C.M., Criminologie en Beleid, diss. Nijmegen 1975.

15. It is known as rape, sexual assault, and aggravated sexual assault.

16. Michael M. v. Superior Court, 450 U.S. 464 (1981).

17. Rumania appears to still have an active prosecution policy of homosexuals.

18. Bowers v. Hardwick 478 U.S. 186 (1985). In Canada a trial judge has ruled that Canada's Charter of Rights requires that the age of consent for anal intercourse should be the same as for any other sexual act, namely 14 (R. v. C.M, 75 Canadian C.C. (3d) 556 (Ontario General Division) (1992). In former days homosexuality for minors was prohibited in the Netherlands.

19. Modinos v. Cyprus, European court of Human Rights 22 April 1993 Series A: 259.

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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