Responsibility and the Young Person

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Responsibility and the Young PersonLisa Micucci

Introduction

In 1993, two young boys were convicted for the murder o a two-year-old tod-dler, James Bulger.Both boys were ten years old when the murder was committed.Such a violent act raises the timeless question: At what age shoulda child be heldf illyresponsible by a nation's criminal justice system for criminal conduct? Seriouscrimes are being committed by young persons' and the public seems to have theimpression that such acts are being committed at an increasingly young age.

Generally, the age o criminal responsibility (or legal responsibility) refers to

the age at which a person becomes subject to the full penalties provided by the crim-inal law and this age varies greatly from country to country. In the Bulger case,at the age o ten, both boys had reached the age of criminal responsibility inEngland. Yet in other countries, this would not have been the case. In Canada, forexample, the young persons would not have been subject to the criminal law sincethe minimum age of legal responsibility is twelve years. Historically, young personshave been given special treatment under the criminal law. Under the oli in p x(incapable o committing a crime) standard, a child's capacity to commit a crimewas questioned when attempting to affix criminal responsibility. Some countriesstill adhere to this common law oli inc p x ule. In the first section of this paper,I will outline both the historical and present diversity

between countries in relationto the age o criminal responsibility,as well as the associated advantages and dis-advantages o these various systems.

In the second section of the paper, I will question what constitutes the properminimum age to attach moral responsibility to a child. In this paper, I am assumingthat moral responsibility is a necessary precondition to finding someone criminallyresponsible. Both our legal and moral norms presuppose that most of us have thecapacity to feel, think, and act like reasonable and moral persons and the criminallaw is addressed primarily to agents who possess these capacities. If a person cannotbe considered a moral agent, he or she cannot be held responsible for his or her

acts. At issue then is what constitutes a moral agent and whether or not a child isindeed a moral agent, and if so, at what age. Even if an age can be established atwhich a child becomes a moral agent, does it represent the appropriate age to whichwe would want to affix criminal responsibility? That question will be addressedin the final section o the paper.

1 Throughout this paper, the terms child and young person will be used interchangeably. Formy purposes, persons below the age o eighteen years are deemed to fall into that category asthey do not generally havemost adultprerogatives such as to own and manage property, studyat a higher level o education, have full contractual capacity, vote. and legallyget married without

parental consent.

anadian Journal of Law and Jurisprudence Vol. X, No.2 July 1998)



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Part I Diversity in Establishing a Minimum Age of riminal

Responsibility

a The Criminal aw in Relation to Young Persons

As a general principle, it can be said that the criminal law seeks to blame andpunish those who have violated the defined rules of lawful conduct. The crininalsystem also serves a communicative role in our society by separating and labelingcertain behaviour as morally condemnable '2 The criminal process also inflicts stig-matisation. 3 Those fundamental purposes and goals of the criminal law explain itsdistinction from civil (tort) law: criminal liability signals moral condemnationof the offender, while civil liability does not. '

There is also a suggested distinction to be made between parental punishmentand criminal punishment. Most parents are constantly involved in the punishmentof children, regardless of age, and children are routinely held responsible for wrong-doing by their parents. RH. Bradley commented that:

We must distinguish between punishment and discipline, or correction; the formeris inflicted because of wrong-doing, as desert, the latter is applied as a means ofimprovement. It is right to inflict the former only in the case of a being either whollyor partially accountable. The application of the latter (which is not punishment) isa practical question for parents or tutors, both in respect of the occasion and amount.Pedagogic punishment (proper) differs from judicial in admitting greater latitude ofparticular considerations in the individual case.'

Is this not, however, a question of the degree of transgression? When toddlers com-

mit a bad act, parents will punish the transgression to teach them the differencebetween right and wrong. Yet after a certain age, when a child knows right fromwrong and as the transgressions become more serious, why should he be protectedfrom judicial punishment?

It has generally been accepted that children, in the context of the criminal law,benefit from special rules since they do not necessarily have the same mental capac-ity and moral competence as adults. In fact, that philosophy has been translatedin the criminal law with, depending on circumstances, the rebuttable or irrebuttablepresumption of responsibility (the doli incapax doctrine) and also in the fact thatthere is a line below which (the age of criminal responsibility) children are not con-

sidered capable of truly criminal behavior because they are incapable of the requisitemoral and cognitive processes. 6

When attempting to deal with children in the criminal law, it appears to be a

2. P. H. Robinson, 'The Criminal-Civil Distinction and the Utility of Desert (1996) 76 Bos. U.L. Rev. 201 at 202. The term moral is intended as I accept the idea that moral responsibilityis tied to legal responsibility.

3. UK Government's proposal contained in White Paper, The Child the Family and the YoungOffender(1965) Cnmd. 2742, para. 10 (U.K.).

4. Supra note 2 at 206.5 F H. Bradley, The Vulgar Notion of Responsibility in Connexion With the Theories of Free-

Will and Necessity in thical Studies(Oxford: Clarendon Press, 1927) 1at 31 fn 2.6 S. Asquith, Justice, Retribution and Children in A. Morris & H. Giller, eds., ProvidingCriminal

Justice or Children (London: Edward Arnold, 1983) 7 at 14.



Responsibility and the Young erson

balancing test between punishing a child because he did wrong and not punishinghim because of the function and mechanics of the criminal law. Hyman rossexplains:

There isalso an exculpatory aspect to the defense of infancy. It derives from

the limited ability that children have both to appreciate the risks of doing certain thingsand to appreciate the significance of the resulting harm. Knowing what the risks are,and having regard for the interests of others, requires a social intelligence that theyoung are only in a process of developing; and because of their more meager capac-ities it would be wrong to treat the young as fully responsible. Some of our assump-tions in this regard have recently been brought into question by the prevalence ofcriminal behavior among young peoplewho show full appreciation ofwhat they aredoing and who exhibit adult capacities of understanding and planning in deliberatelychoosing to commit crimes. As a result there is a conflict between humane consid-erations which inclineus toward exempting the young from normal criminal liability,and our revised judgments of responsibilitywhich incline us toward holdingyoungoffenders to higher standards of liability than those that now prevail.

A concern of applying too generous a standard toward children is typified bythe following comment by Nigel Walker:

The modempreference for systems with high minimum ages needs a close and criticalexamination. It is sometimes based on the traditional assumption that under-age chil-dren are not as responsible for their conduct as adults are, in the sense that they arenot fully aware of its wrongness or illegality, or are less able to withstand temptation.But the higher the minimum age the more artificial this assumption becomes. Onlysomeone who has never had personal dealings with children could believe that a men-tally normal boy of say, twelve is unaware that theft is an offence or is unable torestrain himself from thieving, at least until he thinks he can get away with it. Asfor moral wrongness of thieving, if he does not feel this at twelve he will not feelit as an adult.'

Perhaps our reticence to enforce substantial legal penalties against young personsis found in the following quote from T. Morris:

The age of responsibility is, in effect, not the age at which the child can tell rightfrom wrong-most five years old can do that-but the point at which society feelsit can unashamedly punis [emphasis in original].

Given this lack of certainty in regards to the appropriate minimum age of crim-

inal responsibility, let us now examine how the issue has beenaddressed in practice

by various countries.

b The Present Response by Various Countries

The policy of treating age as a relevant criterion in assessing criminal respon-

7 H. Gross, Theoryof CriminalJustice (New York: Oxford University Press, 1979) at 151. P.J. Fitzgerald, 'The Child, theWhite Paper and the CriminalLaw. Some Reflections (1966)Crim.L. Rev. 607 at 609 expresses the same idea.

8. N. Walker, Sentencing in a RationalSocieny (London: Penguin, 1972)at 215.

9. T. Morris, "Struggle for the JuvenileCourt" (1966) 7 (176) New Society 17 at 17.



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sibility andthe difficulty in determining the minimumage ofcriminal responsibilityhas a substantial history.' It appears to date from the distant firstattempt at cod-ifying societal law in the Hammurabic Codein 2270 B.C. Under Roman law, bythe fifth century B.C., only those children, for example, who were incapable ofspeech were spared punishment. By the fifth century A.D., this view started tochange and childrenunder the age of seven were exempt from criminal liabilityand the question of responsibility was decided with the use of biological markersofpuberty, with prepubertal children not held responsible.The legal age ofpubertywas fixed at fourteen for boys and twelve for girls. For children between the agesof seven and puberty, they were held criminally liable if they had the capacity tounderstand between right and wrong.

This debate continues today. Throughout the years, various organizations havevoiced their opinion as to the appropriate age of legal responsibility. In 1965, theEnglish

Government proposed the extinction of the doli incapax doctrine by raisingthe minimum age of criminal responsibility to sixteen. The members of theJuvenile Justice Standards Project, comprising of various American organizations,concluded that ten was the appropriate age. Without formulating any concreteage limits, the United Nations recommends throughRule 4 of the Beijing Rulesthat [i]n those legal systems recognizing the concept of the age of criminal respon-sibility for juveniles, the beginning of that age shall not be fixed at too low a level,bearing in mind the facts of emotional, mental and intellectual maturity .

The practical responses to the issue of the age of assuming criminal responsibilityreflect these variousviews. In some countries suchas Belgium and Luxembourg,

the age ofcriminal responsibility has been raised to eighteen years, whereas inothercountries, Ireland and Switzerland,it is as low as seven years with many countriessuch as Greece (twelve years), Italy (fourteen years) and Spain (sixteen years)between the extremes. There are even distinctions within countries such as theUnited States and Australia wheredifferent political states have settled on differentage guidelines. A trend towards increasing the age of legal responsibility has alsosurfaced. For example, in Queensland, Australia, the age of criminal responsibilitywas raised from seven to ten'5, in Canada from seven to twelve 6 and in England

10. For more details see A. W . Kean, The History of the Criminal Liability of Children (1937)

53 L. Q. Rev. 364; S. M. Cox & J. J. Conrad, Juvenile Justice: Guide to Practice nd Theory4th ed. (New York: Brown & Benchmark, 1996) at 1-13.

11. Supra note 3.12. B. Flicker, Part : ational Standards for JuvenileJustice in J Hall, ed., Major Issues in Juvenile

Justice Infornation and Training OH: Academy of Contemporary Problems (New York: Spinger,1981) 1 at Standard 2.1, Juvenile Delinquency and Sanctions.

13 United Nations Standard Minimum Rules for the Administration of Juvenile Justice BeijingRules) (New York: Department of Public Information, 1986), Part 1,General Principles at 4.

14. House of Lords Hansard, 27 February 1995, col. WA82 (Penal Affairs Consortium, The DoctrineofDoli Incapax INRC, November 1995) at 7.

15 The age was seven and was raised to ten under the Criminal Code Amendment Act 1976 (Qld.),section 19, and remains at that age under the Criminal Code 1997 Qld.), section 29.

16 The age was seven under the Criminal Code 55-56 Vict. C. 29, 1892 section 9). Now theCriminal Code R.S.C. 1985, c. C-46 provides for a minimum age of twelve years (section 13





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above the common law age of seven.2 In New Zealand, the rebuttablepresumptionoperates between the age of ten and fourteen.' Although not codified in any of theChildren and Young Persons Acts, the rebuttable presumption against criminalresponsibility is also applied in England/Wales with the lower age limit being leg-islatively raised to ten years old.? Very recently, however, the common law pre-sumption was put into question in the case of C AMinor v. Director of PublicProsecutions4 and then reexamined by the House of Lords.' In Canada, the doctrinehad been statutorilyprovided for in Canadian legislation, but has since been elim-inated.2 As for the American position, although the courts initially endorsed thedoctrinen, its availability is dependent on the state. Other countries, such as France,Germany and Spain appear to have presumptions similar to doli incapaxin relationto young persons above their age of legal responsibility.29

Earlier, if the prosecution sought to show that a child under the age of fourteenwas responsible,it had to provide the court with evidence ofwhat was called mali-cious intention : a guilty knowledge that the child knew the act in question waswrong. In England, the decision in Rex v. Gorrie 3 suggested that a stricter for-mulation of the rule (by then called mischievous discretion ) should be appliedin that the prosecution had to establish that the child knew that his act was gravelywrong, seriously wrong as opposed to merely what was wrong . Now, in additionto such a test of establishing the child's mental state, the prosecution must also provethe ordinary mens rea required for the offence charged. If, for example, a youngperson aged thirteen is charged with stealing, the prosecution must do more thanestablish the presence of his intention to steal. It must also prove that the youngperson knew that it was (seriously) wrong to act in such a manner.

The courts have also attempted to define the nature of the knowledge that mustbe established. It appears that the knowledge of seriously wrong relates to awrongness of the offence charged in the moral sense,32 although it is argued that

21. For example, the relevant age is eight in the Australian Capital Territory (Children s ServicesAct 1986 (A.C.T.), s. 27) and ten in New South Wales (Children Criminal Proceedings) Ac t1987 (NSW), s.5 , Queensland (Criminal Code 1997 (Qld.), s.29), Victoria (Children and YoungPersons Act 1989 (Vic.), s. 127), Western Australia Criminal Code (W.A.), s. 29) and SouthAustralia (Young Offenders Act 1993 (S.A.), s. 5). In Western Australia, Queensland and theAustralian Capital Territory, the rule has been given statutory form.

22. Crimes Act 1961 (NZ), ss. 21 and 22.23. Children and Young Persons Act 1933, s. 50 (as amended by 1963 Children and Young Persons

Act s. 16(1)).24. [1994] 3 W.L.R. 888 (Q.B.).25. In Re C AMinor) A.P.) (16 March 1995) (H.L.).26. Sections 9 and 10 of the 1892 Criminal Code [55-56 Vict., c. 29] codified the English common

law, but now the Young Offenders Act, R.S.C. 1985, c. Y 1 (as amended) denies young offendersover the age twelve (minimal age of legal responsibility) of benefiting from the common lawpresumption.

27. Carr v. State, 7 S.W. 328 (Tex. C.A. 1888).28. J. C. Weissman, Toward an IntegratedTheory of Delinquency Responsibility (1983) 60 Denver

L. J. 485 at 491-501: the doctrine was endorsed In Re Gladys R., 1 Cal. 3d 855 (Cal. S.C. 1970),but the state of Illinois, for example, has repudiated the rule.

29 Supra note 14 at 6.30. Supra note 19.31. (1919), 83 J.P. 136.32 A v. DPP [1992] Crim. L. Rev. 34 (D.C.) [hereinafter A ]; G L. Williams, The Criminal

Responsibility of Children [1954] Crim. L. Rev. 493 at 494.



Responsibility and the Young Person

it could be understood in a legal sense. - As for the standard of proof, the prose-cution must prove by clear and positive evidence that the child knew his or her actwas seriously wrong and that he or she possessed normal mentalcapacities. Forexample, in the case of A. it was mentioned that the justices were not entitled to

conclude merelyfrom the appellant's appearance that he was normal in the respectsnecessary for the purposes ofascertaining criminal responsibility.- In other cases,the courts have held that there must be discrete evidence of the child's state ofknowledge. Evidence concerning factsother than the crime itself, such as the child'supbringing and all his or her circumstances , the child's previous convictions andthe child's behavior before and after the alleged act (the surrounding circum-stances)p wereall regarded as important for the purposes of rebutting thepresump-tion. It is generally held that the closer the young person's age is to full criminalcapacity, the lower the evidence would be required to rebut the presumption.

Just as the more arbitrary age-based legislations have detractors, the doli incapax

doctrine alsohas its proponents and opponents. Some authors suggest that the doc-trine should remain39 and the British Government, in 1990, made it clear that it didnot intend to change the laxw Firstly, the rule relating to criminal responsibilitydoes embody an important criminal l w principle-criminal liability should beimposed only on thosewho are fully responsible. As we shall see, the doctrine alsocorrectly recognizes that children's moral awareness, knowledge, understanding,and reason develop as they get older and that they mature overdifferent time spans.Furthermore, the doctrine acknowledges that there is no moral justification inimposing a criminal sanction to punish a young person who does not appreciatethe wrongness of his or her conduct.

Yet the rule has been strongly criticized in the academic, governmental, and judi-cial realms.' Glanville Williamscalled it is an archaic rule of the common law nthat can be considered as legally obsolete 3 It was also recommended for abolish-ment by the Ingleby Committee(UK) in 1960 and throughout the recent years,many judges have raised doubts in relation to the rule and applied it with reluctance

33 Williams, ibid. at 494; J. M. A Minor) v. Runeddes (1984), 79 Cr App. R. 255 D.C.) hereinafter M.] per Goff LJ t 260: I do not however feel able to accept the submission that the criterionin cases of this kind is one of morality.

34. Supra note 32 and. B. H. J. H. (Minors) . Connell, 1981] Calm L Rev. 632 (D.C.) [here-inafterJ. B. H.]. But see I.P.H. v. ChiefConstable o South iales [19871 Crim. L Rev. 42 (D.C.).

35 B. v. R. (1958), 44 Cr. App. R 1 (D.C.); F v. Padwick, [1959] Crim. L Rev. 439 (D.C.).36. Reg. v. B. [1979] 1 W.L.R. 1185 (C.A.).37. M. supra note 33; Tand others v. D. P.R. [1997] Crim. L. Rev. 125 (D.C.).38. R. v. Coulburn (1988), 87 Cr. App. R. 309 (C.A.).39. M. Grove, Are You Old Enough? In Defence of Dali Incapax (1996) 70 L Inst. J. 38 at 41;

Supra note 14 at 3; T. NWilkinson, Doli Incapax Resurrected 1995) 139 Solicitors J 38 at339.

40. White Paper Crime Justice and Protecting the Public 1990), Cmnd. 965 at para. 8A (U.K.).41. J K. Bentil, Juvenile Offenders and the Rebuttable Presumptionof Doli ncapae' 1990) 106/107

Law & Justice 14 at 21; J. Seymour, Dealing ith Young Offenders (Sydney: The Law BookCompany, 1988) at 185.

42. G. Williams, Textbook of Criminal aw 2nd ed. (London: Stevens Sons. 1983) at 639.43. Wtlliams, supra note 32 at 494-97.44. Ingleby Commitee, Report of the Committee on Children and Young Persons 1960) Cmnd. 1191

at 36, para. 94 (U.K.).



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since it seems to lead to results inconsistent with common sense.Some of the recurring arguments against the doctrine are as follows: gathering

evidence necessary to rebut the presumption is not always easy to obtain; it is easyfor some courts to pay little attention to the presumption; the meaning of wrongis unclear, whether it requires knowledge that the act is legally or, more likely,morally wrong; the requirement of seriously wrong is also conceptually obscure;the burden of proof placed on the prosecution is equally unclear as some courtsinsist on detailed evidence in rebuttal whereas others tend to lower the standardof evidence needed to rebut the presumption of criminal incapacity. Another argu-ment is that the rule is divisive because it tends to attach criminal consequencesto the acts of children coming from good homes more readily than to acts of oth-ers and perverse because it tends to absolve from criminal responsibility the verychildren most likely to commit criminal acts. Thus, in effect, it creates the situationwhereby the worse a child's home, the less likely it is that the court will be ableto interfere, for the less developed will be his moral sense.

As previously noted, the common law presumption was examined in the caseof C AMinor . 6 Laws J., citing most of those arguments, concluded that the doc-trine was no longer part of the law of England as it was unreal and contrary to com-mon sense. However, on appeal to the House of Lords, the lower court decisionwas overruled. It was held that the rebuttable presumption of doli incapax was stilluniversally recognized as an effective doctrine. 7 Yet Lord Lowry did acknowledgethat the time had come to examine further a doctrine which appears to have beeninconsistently applied and which is certainly capable of producing inconsistentresults, according to the way in which courts treat the presumption and dependingon the evidence to rebut it which is available in each case 43 In his opinion, [tihisis a classic case for Parliamentary investigation, deliberation and legislation '9

Faced with this disparity as to the minimal age of criminal responsibility andthe applicability of the doli incapaxdoctrine, we are no closer to determining whatis the appropriate minimum age of legal responsibility.However, the doli incapaxdoctrine does introduce a more flexible means of assessing criminal responsibilitywithout sacrificing stringency or leniency as the individual case requires. While

45. A., supra note 32 (Bingham L.J. ; J B. H., supra note 34 per Forbes J.46. Supra note 24.47. Supra note 25, per Lord Lowry at 9.48. Ibid. at 24.49. Ibid. at 24. This is in fact the case. In the fall of 1997, a Consultation Paper entitled 'Tackling

Youth Crime sought views on the Government's proposal to abolish the application of the doliincapaxdoctrine (Part : Taking Responsibility). In November 1997, the Home Secretary pub-lished a White Paper called No More Excuses A New Approach to Tackling Youth Crime inEngland and Wales that sets out theGovernment's program of reform for the youthjustice systemin England and Wales. In Part III-Responding to Youth Crime-Chapter 4: ReinforcingResponsibility of the White Paper, the Government restates its position of abolishing the pre-sumption of doli incapax. This measure has been taken forward through the Crime and DisorderBill which was passed by the House of Lords and was recently introduced in the House ofCommons on April 1, 1998. Section 31 of the Bill reads as follows:The rebuttablepresumptionof criminal law that a child aged 10 or over is incapable of committing an offence is hereby abol-ished. The issue has also been reported in various newspapers, for example, F. Gibb & S. Tendler, Labour Promises to Prosecute Offenders Under 14 The 7imes (4 March 1997) 8; P. NV avies, Labour Redefines the Age of Innocence The Independent (4 March 1997) 4.




more subjective than a strict legislative standard, and not without its own flaws aspreviously described, it does appear to address the concern surrounding a morefixed arbitrary standard and in that respect, seems to more accurately reflect theintention of our criminal law by punishing those who are appropriately deserving

of sanctions. It remains, however, to determine appropriate ages within which thedoli incapax standard (or indeed any other system of justice) might operate. Foras we have seen in the case of England and Australia, even the ages at which thedoli incapax ule is applied have been modified. Is it possible to find an appropriateage of criminal responsibility? Before attempting to answer such a question, how-ever, it is important to determine the various prerequisites involved in the conceptof criminal responsibility.

Part L Moral Agency

A) The ttributes a Person Must Possess o Qualifyas a MorallyResponsible Agent

Withouta doubt the concept of responsibility is elusive and thus brings abouta number of distinguishabledefinitions of the word. In the criminal context, theadjectives morally and/or criminally/legally often precede the term respon-sible As previously mentioned, legally responsible refers to being liable to legalconsequences. As for the former concept, [t]o say that someone is morallyresponsible for what he does may be to say that he can legitimately be praised orblamed if either of these responses is appropriate to the action in question.

Like many theories of punishment, such as retributive, moral responsibility isa necessary element for a justified legal/punitive response and therefore is a nec-essary pre-condition to affixing criminal responsibility. This assumption is alsobased on the relationshippreviously explained between the criminal law and moralcondemnation and the moral element expressed in the doll incapax doctrine. Infollowing such a path with respect to children, I agree with Stewart Asquith whenhe explains:

The perception of the offender in retributive thinking is rational and responsible andthis poses particular problems for any social institutions dealing with those whosestatus s morallyautonomous agents needscareful consideration. The extent to which

50 H L. A. Hart, Punislunentand Responsibility:Essays in the Philosophyof Law (New York:Oxford University Press, 1968) at 210-30; NV neale, The Responsibility of Criminals in H.B. Acton, ed., ThePhilosophyof Pwmislment:A Collectionof Papers London: Macjillan 1973)172 at 172-96; C. T Sistare, Responsibilityand riminal Liability The Netherlands: Kluwer.1989) at 13-23.

51 Supra note 42 at 640.52 3 Glover, Responsibility(London: Routledge Kegan Paul, 1970) at 19.53 Peter Arenella also explains that the criminal law ties legal to moral blame for serious mala in

se crimes, those behaviours that breach community moral norms independent of its illegality.See P. Arenella, Convicting the Morally Blameless: Reassessingthe Relationship Between Legaland Moral Accountability (1992) 39 UCLA L. Rev. 1511 at 1513; P. Strawson. FreedomandResentment(London: Methuen, 1974) also discusses the link between moral blame and the crim-inal law.



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children can be considered criminallyor morally responsibleor both is a crucial ques-tion The mental capacity of the individual has always been singled out as a primefactor to be taken into account when determiningthe character of retributive sanctions

n this respect, the issues involved in dea lingwith juveniles parallel very closelythe debates about the punishment of the mentally ill since both involve questions ofmoral agency and moralcompetency.-'

The passage illustrates the following three points. First, to be subject to criminalsanctions, the actor must be a moral agent. Second, certain mental capacities areneeded to be considered a moral agent. Third, children are not necessarily thoughtto be moral agents. In the words of one author:

From the moral standpoint, it is intelligible and it may be morally fitting to judgea responsible agent for his deeds and to ascribe such qualities to him as guilt or inno-cence, blameworthiness or praiseworthiness, viciousness or virtuousness. It may befitting to call on him to repent, to condemn him or honour him, to punish him orreward him. But where the individual is not a responsible agent,as in the case of smallchild, he is not a fit subject of moral judgment at all. Of one who is a responsibleagent, we may say, after reviewing the facts, that he did not have a criminal intentin doing what he did, and we may therefore judge him not guilty. But of one whois not even a responsible agent, though we may say he is not guilty, we mean by thisnot to express a moral judgment of him but to indicate thatone must abstain fromjudging such a person morally.

Herbert Fingarette's view is consistent with the general intent of various legislationswhere in most countries young persons below a certain age are not regarded asmoral actors or at best, must be proven to be so when the doli inc p x doctrine

is applicable. However, in discussing moral responsibility, Williams called it a mystical theory whereby the only persons capable of acting wrongly are thoseof a certain intelligence or intellectual accomplishment. A lunatic has no moralresponsibility, and neither has a very young child. This involves defining insanityand youth for the purpose of responsibility, and somewhat arbitrary lines have tobe drawn. ' This statement, particularly with its use of the word mystical displayshow the theory behind responsibility is as intangible as the present basis for leg-islatively affixing an age for legal responsibility.

Children, animals, and incompetents are said not to be genuine agents becauseof their limited capacities. What are these capacities that allow us to establish thata person is a moral agent? As with the notion of responsibility, the concept of moralagency is elusive and subject to various interpretations. In this next section, someof the recurring elements will be examined in an attempt to identify a minimumthreshold account of what is needed to be a moral agent.

54 Supra note 6 at 11; Williams, supr note 32 at 494-95.55 H. Fingarette, Criminal Insanity in P. A. French, ed., The Spectrumof Responsibility(New

York: St. Martin's Press, 1991) 242 at 243.56 Williams, supr note 32 at 494.57 In this section I will be examining what conditions are necessary to be considered a morally

responsible agent in thesense of moral agency. I will not be discussing responsibilityin respectof particular outcomes or actions. Although the terms culpabilityand blameworthiness will bementioned, I will not be discussing these issuesany further than is necessary in attempting toestablishagency.




a The Capacity Theory

In his book uishnent and Responsibility H.L.A. Hart explored the meaningof responsibility and distinguishedfour types. In the first meaning, role-respon-

sibility, responsibility is connected to the rules and obligations attached to tasksand roles. As for the second meaning, causal-responsibility,' attribution of respon-sibility almost always includes a purely causal element, whereby there is a rela-

tionship between the individual'sbehavior and the consequence. The third category, liability-responsibility, refers to when a person has a general capacity to followthe general rules and has allegedly failed to satisfy a general norm or specific ruleof role behavior, the person may be called upon to answer as to why he or she failedto follow the norm. Until the answer is given, it is usually not known whether orhow much to blame someone for their wrongdoing. There are different types ofanswers that, if successful, will excuse or mitigate a finding of responsibility. If

a person is unable to provide a satisfactory answer, he or she may be held liableand be subjectedto sanctions. The fourth category, capacity-responsibility:' is par-

ticularly important for our purposes since as previously mentioned, children are

often thought to lack the capacity to be responsible moral agents. This category

appears equally important in Hart's mind when referring to punishment: What

is crucial is that those whom we punish should have had, when they acted, the nor-mal capacities,physical and mental, for doing what the law requires and abstainingfrom what it forbids, and a fair opportunity to exercise these capacities:

Hart explains capacity-responsibility in the following manner.

In most contexts, as I have already stressed, the expression he is responsible for hisactions is used to assert that a person has certain normal capacities.These constitutethe most important criteria of moral liability-responsibility,though it is characteristicof most legal systems that they have given only a partial or tardy recognition to allthese capacities as general criteria of legal responsibility. The capacities in questionare those of understanding,reasoning, and control of conduct: the ability to understandwhat conduct legal rules or morality require, to deliberateand reach decisions con-cerning these requirements,and to conform todecisions when made.... responsiblefor his actions in this sense refers not to a legal status but to a certain complex psy-chological characteristics of persons

Legal systems left to themselves may be very niggardly in their admissionof therelevance of liability to legal punishment of the several capacities,possession of which

are necessary to render a person morally responsible for his actions.

Based on this passage, the relevant capacities are those of understanding, rea-

soning and control of conduct. In relation to children it can be inferred that whenthey have developed the capacity to understand what conduct moral norms require,the capacity of reasoning and the ability to control their conduct, then they wouldbe considered morally responsible agents.

58 Supra note 50 at 210-30.59 Ibid. at 152.60. bid at 227-28,218.



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b The Choice Theory

The choice theory is perhaps the most straightforward of the various theoriesand builds on the capacity theory explained by Hart. Choice theorists accept the

same capacities for moral agency as does Hart; however, they further require theelement of choice in respect to determining if a person is blameworthy. For choicetheorists, a person is culpable when he or she made a rational and a voluntary choiceto commit a wrongful act. As expressed by Michael S. Moore, we are responsiblefor wrongs we freely choose to do, and not responsible for wrongs we lacked thefreedom (capacity and opportunity) to avoid doing '6 ' In the context of children,they would be held to be moral agents when they display the capacity for reasoning,the capacity to understand what conduct moral norms require and the capacity to

control their actions, and given these criteria would then be blameworthy or praise-worthy based upon the choice of action they selected. For the purposes of this paper,

this additional aspect of choice is not of concern as it is pursuant to having estab-lished moral agency on the basis of understanding, control of conduct, and rea-soning.

c The Character Based Theory

An alternative conception of responsibility is the one stemming from DavidHume which is based on character.As explained by Michael D. Bayles, a proponentof this theory:

Blame and punishment are not directly for acts but for character traits. On this view, character trait is not, as in the Aristotelian view, restricted to traits which peoplecan voluntarily control possessing or manifesting in behavior. Instead, it refers toany socially desirable or undesirable disposition of a person. Acts may or may notindicate character traits. If an act does indicate an undesirable character trait, thenblame is appropriate; if it does not, then blame is inappropriate although measuresto prevent such conduct in the future might be taken.6

This theory of culpability differs from the choice theory in that the choice mayin fact be p redetermined by the character of the actor and as such is a subjectiverather than an objective basis of assessing responsibility. Though based upon thesame capacities as the choice

theory, the character-based theory is more complex.For example, Peter Arenella, another character-based theorist, has expressed a dis-satisfaction with a choice theory's thin account of a moral agent's necessaryattributes 63 because it never addresses the threshold question concerning theattributes one needs to make moral choices about whether to engage in criminalconduct. '64 Instead, he articulates a normative, character-based conception ofmoral

61 M. S Moore, Choice, Character,and Excuse in E Paul, F D MillerJr. & J Paul, eds., Crime,Culpabilityand Remedy (Oxford: Basil Blackwell, 1990) 29 at 29.

62. M. Bayles, Character,Purpose, and Criminal Responsibility (1982) 1 Law & Phil. t 7.63. Arenella, supra note 53 at 1524.

64. Ibid. at 1610.




agency by enumerating the minimumattributes a person must possess to qualifyas a morally accountable agent:

the capacity to care for the interests of otherhuman beings;the internalization ofoth-ers' normative expectations, including self-identificationas a participant in the com-munity's blaming practices; the ability to engage in moral evaluation of one'scharacter andacts [;]the capacity to respond to moral normsas a motivation for one'schoices; andthe power to control those firmly entrenched aspectsof character thatimpair one's ability to act in accordance withone's moral judgments. Thesecharacter-based moral agency attributes presuppose a far more robust account of knowledge,rationality, and control than that required by the criminal law's rational choice con-ception of moral agency.

Such an account of moral agency is problematic forthe following reasons. First,the theory seems to assume that a person can or wants to change his or her character.It could be argued that we do not choose our characters or that we always have

the option or the necessary capacity to mouldour characters. In discussing suchan idea, Moore noted that:

We do have some such capacity. We do form second-order desires or ego-idealsabout what kind of person we would like to become, andwe have some causal powerto effect changes in ourselves inconformity with such desires or ideals. et the socialscience on this issue gives little encouragement to thinking that we have much ofthis power.1

Therefore, on such a deterministic view, we would have little control or choice tochange our characteristics. The description by Arenella would therefore be in ques-

tion where he assumes that to be a moral agent a person has the capacity to controlhis or her unacceptable trait. Again, i an individual does not choose to change,why should he or she not be held an accountable moral agent, especially whenwefactor in the criteria thathe or she has the capacity to understand what conductmoral norms require and is a rational being? In relation to the capacity to changeone's attributes, a subjective analysis is perhaps warranted. Yet the question ofcapacity returns onceagain to the psychological criteria o understanding and rea-soning. Such an assessment might be done in the context o mental impairment,but unless an individual's mental state is beyond our normative conception, canwe not expect that individual to control his or her actions within these normative

standards?More specifically, anotherproblem is the question o internalizing others' nor-mative expectations which includes self-identificationas a participant in the com-munity's blamingpractice. Who does he consider as others ? Which community,the whole of society or a group o friends? Such a criteria could easily be used asan excuse where an individual can claim that he or she never sufficiently graspedor internalized moral norms, even i in his or her mind he or she behaved for self-interested reasons.

65 ]bid at 1525 16 966

upra note 6 at 45.



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The question of caring for the interests of others is equally problematic. Adultswho do not care how their actions affect others are still considered morally respon-sible agents. For example, if a person kills someone and feels no guilt it does notimply that he or she will not be considered a moral agent. In fact, the person is stillliable for punishment. Why is more demanded of young persons? A child whogrows-up lacking the capacity to care or refuses to care about the interests of othersbesides himself or herself would still be considered a responsible moral agent ifhe or she committed a murder when he or she was an adult. Even if a person feelsno remorse or guilt for their action, he or she still possesses the capacity for moralunderstanding: that society views certain acts as immoral and others as moral.Anyone who can rationally deliberate and make a choice as to whether or not tocommit an act based on self-interested reasons qualifies as a moral agent. Thusif a person knew the act was wrong, was rational and could control his or her acts,the question of character is irrelevant.

In a previous article, Arenella once again criticized the rational choice accountof moral agency and more importantly for our purposes expressed a more extensiveopinion as to why young persons do not qualify as morally responsible actors:

consider why we do not treat young children as full moral agents. We certainlytreat them as potential addresses of moral norms, because we assume most childrenwill gradually develop the capacity to understand their normative significance andabide by their dictates. And when they make a rational and voluntary choice to engagein morally objectionable conduct ( I knew it was bad to take her toy from her butI really wanted it and I didn't think you'd catch me Daddy because I thought youwere upstairs ), we may hold them accountable to some sanction to teach them thesignificance of the rule they have broken.

But we do not treat young children as full moral agents, despite their capacityfor practical reason and their freedom to act on the basis of their reasoned choices.The six-year-old who took the toy while knowing it was a bad thing to do madea practical judgment about whether the satisfaction of getting it outweighed the riskof getting caughtand punished. He has nothad sufficient time and experience to inter-nalize moral norms as something worthy of his respect. Nor does he have sufficientempathy and understanding for the feelings of other human beings as separate selvesthat would provide him with the moral comprehensionand motivation to act on thebasis of moral reasons that place constraints on his self-interested acts.

Young children do not qualify as moral agents because they have not yet fullydeveloped this capacity to respond appropriately to moral reasons for action. Thiscapacity for moral responsiveness presupposes that moral agents appreciate the nor-mative significance of the moral norms governing their behavior. It also assumes thatmoral agents can exercise mor l udgment about how these norms apply in a particularcontext. Acting on the basis of moral judgment also requires mor l motivation thecapacity to use the applicable moral norm as the basis for acting.67 [emphasis in orig-inal]

Obviously, Arenella's account of moral agency as it relates to children will sufferfrom the same problems previously expressed in relation to the character-basedtheory itself. Specifically his discussion of parental punishment is problematic.

67. P. Arenella, Character, Choice and Moral Agency in E. F. Paul, Fred D. Miller Jr. J. Paul,eds., supr note 61, 59 at 67-68.




In his first sentence,he mentions that we do not treatyoung children as full moralagents, yet in the same paragraphwrites that we may hold them accountable tosome sanction As previously pointed out, persons cannot be held accountableor responsible if they are not first considered moral agents. He also appears to accept

the choice model's conception of agency when it relates to parental punishment.Why should that concept not apply to the criminal law? Obviously the sanctionsare different, yet the notionof the capacities of moral agency do not have to change.In fact, parents often treat their children as i hey were accountable agents whenthey violate certain obligations. Thisis probably due to the fact that parents dobelieve that after a certain age a child should know the difference between rightand wrong or that treating him or her as responsible is an effective way to stimulatethe development of such knowledge. Finally,the idea that we do not treat youngchildren as full moral agents could be based on other factors than what heexpresses. For example, a six-year-old might not be considered a full moral agent

by the law because of the impact of the criminal law, such as stigmatisation. Thisshould not preclude the ability to identify children as moral agents, but may impactupon the legal sanctions imposed.

The character-based theory, both as it is described and how it relates to children,appears to be too demanding and too subjective.In my opinion, as long as children'smental capacities are within the psychological normativebounds, their failure tocontrol their character traitsbecomes a question of choice. Consequently, a thresh-old conceptionof moral agency should not include the character-based attributesdescribed by Areneila. Instead, as expressed by R.A. Duff:

Some [capacities] can be defined in purely cognitive terms that do not threaten t

attempts to retain a clear distinction between choice and character'. Someone whois to be held responsiblefor his choices mustat least be capable of recognizing t

relevantempirical aspects ofhis actions and its circumstances, andof foreseeing itsconsequences; he must also have the kindof instrumental rationality which enableshim to determine whichactions will serve whateverends he has. But thepossessionof such capacities is not a feature of what we would normally call the agent's char-acter, thus, in holding that a person is criminally liable only if he had and was ableto exercise these capacities, we are notfounding liabilityon character .1-

d The Reflective Theory

A further theory of responsibility and hence moral agency is the reflectiveor freedom of the will theory whichhas been extensively exploredby philoso-phers. 9 Traditionally, an individual w s said to have acted according to his freewill if with respect to a certain act, he couldhave acted otherwise. Such a definitionwas understood to include the freedom to choose from among competingcoursesof conduct. Since then, some philosophers have focused more on the internal

68 R . Duff, Choice, Character, and Criminal Liability (1993) 12 Law & Phil. 345 at 356.69 B. Williams, How Free Does the Will Need t be? The Lindley Lecture (Lawrence, K.:

University of Kansas, 1985); G. Watson, Free Agency in G. Watson, ed.. ree Will (New York

Oxford University Press, 1982) 96.



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elements of the decision-making process,such as Harry G Frankfurt. In his opin-ion, there are essential conditions that a person must possess prior to discussingfreedom of the will.

Frankfurt's theory can be summarized in the following manner1 : (1) Humanbeings, like many animals, are capable of having desires and motives, and of makingchoices. They all have thecapacity for what he calls first-order desires or desiresof the first order, which are simply desires to do or not to do one thing oranother. (2) Human beings also have thecapacity to form second-orderdesires'to evaluate desires in order to form preferences among their first-orderdesires. (3)The distinguishing feature between persons [moral agents] and nonpersons ( wan-tons ) is the former's ability to make their second-order desires the basis that willmove them all the way to action. In Frankfurt's opinion, the presence of these sec-ond-order volitions or volitions of the second order is the essential attribute ofpersonhood which occurs when an individual wants a certain desire to be hiswill 73 (4) The person exercises freedom of the will when he or she [secures] theconformity of his will to his second-order volitions. 7 5) Moral responsibilityrequires the ability to act according to one's second-order volitions. As we shallsee, young persons fail to satisfy one of these necessary pre-conditions and thusa wider discussion of freedom of the will is not necessary.

Frankfurt's reference to wantons is important for our purposes since heincludes within it the very young children:

I shall use the term wanton to refer to agents who have first-order desires but whoare not persons because, whether or not they have desires of the second order, theyhave no second-order volitions.

The essential characteristic of a wanton is that he does not care about his will.His desires move him to do certain things, without its being true of him either thathe wants to be moved by those desires or that he prefers to be moved by other desires.The class of wantons includes all nonhuman animals that have desires and all veryyoung children.

To illustrate his position, the author distinguishes between two narcotics addicts,the unwilling addict and the wanton addict. Both addicts have conflicting first-orderdesires: to take the drug and to refrain from taking it. The unwilling addict, however,has a volition of the second-order because it is the latter desire and not the formerthat he wants to constitute his will. He is not neutral with regard to his conflictingfirst-order desires. Unlike the unwilling addict, however, the wanton addict

does not prefer that one of his conflicting desiresshould beparamount over the other;he does not prefer that one first-orderdesire rather than the other should constitute

70. H. G. Frankfurt, Freedom of the Will and the Concept of a Person in The Importanceof h t

We Care About Philosophical Essays (Cambridge: Cambridge University Press, 1988) 11

71. Derived from a summary by R. C. Boldt, The Construction of Responsibility in the CriminalLaw (1992) 140 U. Pa. L. Rev. 2245 at 2257.

72. Supra note 70 at 12.73. Ibid at 16.74. Ibid at 20.75 Ibid at 16.




his will The wanton addict cannot or does not care which of his conflicting first-order desires wins out.His lack of concern is not due to his inability tofind a con-vincing basis for preference. It is due either to his lackof the capacity for reflectionor to his mindless indifference to the enterpriseof evaluating his own desires andmotives. When a person acts, the desire by which he is moved is either the willhe wants or a will he wants to be without. When a wanon acts, it is neither. [empha-sis in original].

Furthermore, the author indicated that a person must also possessrational capac-ities, [flor it is only in virtue of his rational capacitiesthat a person is capable ofbecoming critically awareof his own will and of forming volitions of the secondorder. The structure of a person's will presupposes, accordingly, that he is a rationalbeing m

Very young children wouldtherefore lack the capacity for reflective self-eval-uation that is essentialin the formation of second-order volitions.Frankfnurtexplains:

Besides wanting and choosing and being moved to do this or that, men may alsowant to have (ornot to have) certain desires and motives.They are capable of wantingto be different, in their preferences and purposes, from what they are. Many animalsappear to have the capacity for what I shall call first-orderdesires or desires ofthe first order which are simply desires to do or not to do one thing or another. Noanimal otherthan man, however, appears to have the capacity for reflective self-eval-uation that is manifestedin the formation of second-order desires. '

Before being considereda person, a child would have to display rational capacitiesand a reflective awareness of the desires that moves him to action.

The terminology employed by Frankfurt, such as the capacity for self-evaluation,7' displays an account of personhood that is grounded in character.Consequently, his theory indicatesthat humans have the capacity to change theircharacter, to be different from what they are, which distinguishes themfrom non-humans who do not possess this capacity. According to Frankfurt's description,we have the power to mould our own characters depending onwhich second-ordervolition is expressed into action. Since his theory appears character-based, it willalso sufferfrom the same problems as those expressed when discussing Arenella'saccount of moral agency. Specifically, the claims of the Humeans regardingchar-acter, as well as those ofFrankfurt and Watson with respect to self-evaluative mentalprocess, are immune from measurement,objective study, or proof. Such obstacles

would be hard to overcome in the criminal law, especially withjudges trying toevaluate such internal components.

The general issues in respect of moral agency are, in some form, consistentacross various theories. Though other theorists have either attempted to clarify the

76 /biL at 18-19.77. bid at 17.78. bid at 12.79 Many theoristsfocus their analysis upon thereflective component of the decision-makingprocess,

for example, Watson, supra note 69; P. Russell, Freedom and Moral Sentiment ume°s Wayof Naturalizing Responsibility (New York: Oxford University Press. 1995): R. J Wallace,Responsibilityand the Moral entiment (Cambridge, MA: Harvard University Press, 1994).

80 Supra note 71 at 2262.



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meaning of these capacities or have added further elements to the criteria establishedby Hart, their views continue to revolve around the elements of understanding, con-trol of conduct, and reasoning. For the purposes of this paper, I will accept thesethree capacities as constituting the basis of a responsible moral actor, subject toestablishing workable definitions of each term.

In the context of this paper, moralunderstanding or knowledge refers to knowingthat society views certain acts as wrong/immoral or right/moral. What is at issueis whether or not the child has the capacity to distinguishbetween right and wrong.In relation to the doli incapaxdoctrine, it means the child can distinguish betweenright and wrong in order to be aware of the wrongful nature of the act in question.

Reasoning focuses essentially on the person's reasoning abilities: the capacityto engage in practical deliberation about what to do. According to Michael M.Moore, to act for reasons is to act on a belief/desire set of contents of which forma valid practical syllogism. ' The major premise of the syllogism is the person'sgoals, desires, ends, wants, emotions, values, and moral beliefshe or she may have.The minor premise contains the actor's factual beliefs about the situation he or sheis in and his perceptions about his orher abilities and options to achieve the majorpremise [desire, goals, etc.] through some particular action. It therefore involvesthe formulation of ends and the selection of means to the attainment of those ends.As a constraint, Moore adds that reason implies that a person is acting reasonablyand logically to meet an end in light of rational beliefs. In applying such a capacityto children, it would mean that they would be sufficiently rational to reason aboutlegal standards and act accordingly.

The question of control is not as easily defined as the other two terms. The notionof control does cause difficulty as it is a term used by different authors in differentcontexts. In one sense, it is used in a more subjective internal sense, such as the power to control those firmly entrenched aspects of character that impair on s

ability to act in accordance with one's moral judgments.8 In another sense, controlis equated with freedom of choice. That idea would construe control essentiallyby reference to the range of alternatives with which agents are presented in par-ticular situations. To be in control of one's actions, on this account, is to have thecausal power to determine which of these various alternatives is realized, so thatwhen responsible agents act, it is always true that they had alternatives available,that they could have done otherwise. The conflict between these two accounts

of control are displayed in the following quote from Hart wherein he explainscapacity o control behavior :

For one thing, it is clear that not only lawyers but scientists and plain men differas to the relevance of some excusingconditions, and this lack of agreement is usually

81. M. Moore, Law and Psychiatry:Rethinkingthe Relationship(Cambridge: Cambridge UniversityPress, 1984) at 101.

82. R. A. Schopp, Automatism Insanity and the Psychology of Criminal Responsibility:Philosophical nquiry (Cambridge: Cambridge University Press, 1991) at 190-91 offers a similardefinition, without discussing the process in terms of a syllogism.

83. Arenella, supra note 53 at 1525.84. Wallace, supra note 79 at 86.85 Supra note 50 at 32.




expressed as a difference of view regarding what kind of factor limits the humancapacity to control behavior. Views so expressed have indeed changed with theadvance of knowledge about the human mind. Perhaps most people are now per-suaded that it is possible for a man to have volitional control of his muscles and alsotoknow the physical characterofhis movements andtheir consequences for himselfand others, and yet be unable to resist the urge or temptation to perform a certainact; yet many think this incapacity existsonly if it is associated with well-markedphysiological or neurological symptoms or independently definable psychologicaldisturbances. And perhaps there are still some who hold a modified form of thePlatonic doctrine thatVirtue is Knowledgeand believe that the possession ofknowl-edge (and muscular control) is p r se a sufficient condition of the capacity to complywith the law.

[AInd in all systems the fargreater prominence isgiven to the more easilyprov-able elements ofvolitional controlofmuscular movement and knowledge of circum-stances or consequences than to the other more elusive elements 5 [emphasis in

original].

On the question of the knowledge of circumstances or consequences, Hart addsthat in relation to self-control,evidence that a personis able to attend to, examinethe situation, or to assess its risks must be examined prior to determining i heshould be held culpable. Infants, in his opinion,would not be held responsible asthe evidence would probably show that they are unable to attend to, or examinethe situation, or to assess its risks.? It is important at this stage to again differentiatebetween responsibility and moralagency. Although therequirements of knowledgeof circumstances or consequences is important to determine whetheror not an agentis responsible, be it criminally or morally, such an inquiry is beyond thequestion

at hand. What must firstbe determined are the factors which constitutemoralagency. Consequently, when discussing capacity for control, the inquiry will belimited to questions such as resisting urges or temptations to perform acertain act.

In considering the various schools of thought, I would come to a conclusion sim-ilar to the one espoused by Hart that to be a moral agent, a person has to possessthe following capacities: control of conduct, reasoning, and understanding betweenright and wrong. The other theorists do not appear to add substantiallyto the under-standing of these basicprinciples. Adults are generally assumed to be rational agentswho possess the capacities of understanding, reason, and control of conduct, unlessthere is a mental disorder whichmakes them altogether absent. The young, however,

are often thoughtto lack the capacity to be morally responsible actors. What does young signify? In relation to children, it is important to determine at what agesuch capacities are thought to be sufficiently developed in order to find moralagency and thus possibly affix moral responsibility.

86 bil at 33 The moreelusive elements Hart is referring to are the excusing conditionsthat canbe invoked to deny self-control,such as provocation. Sincethe mental elements involved in suchdefences are harder to prove, he explains that many systems willgive prominence to the twomental elements listed. For my purposes, it is sufficient to analyse whether or not a young personhad thecapacity for control without discussing excuses that go to mens rea

87. bid. at 151.



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B) Can a Young Person be Considered a Morally Responsible Agent? f so, at What Age?

Since moral agency presupposes that a person has acquired certain capacities,the findings from scientific research on human development will have an applicationto legal questions of competence. With that in mind, it is possible to examine thecriteria for moral agency, reasoning, understanding, and control of conduct whichare elements of cognitive development. Cognitive development refers to a numberof mental processes including using and understanding language, learning, memory,thinking, and perceiving. According to the author J. Thomas Dalby, a person's abil-ity to be aware of the rightfulness or wrongfulness of an act may be compromisedif these faculties are insufficiently developed.

The most widely accepted and recognized approach in the area of developmentalpsychological research about children's cognitive competence is Jean Piaget's gen-eral theory whereby the interaction between the active internal forces and the envi-roument in which the individual lives allows for cognitive development. Accordingto Piaget , there are four basic stages of cognitive development89 :

1. Sensorimotor Stage (birth to 2 years): The child is in physical contact withobjects around him and is actively discovering their operations.

2. Preoperational Stage (2 years to 7 years): Knowledge advances from simpleactions to the use of representations such as images, language and symbols.

3. Concrete Operations (7 years to years): Children develop logical thinkingand concepts. Many aspects

ofa

situation, rather then just one, may be taken intoaccount when drawing conclusions.

4. Formal operations (after years): Children become able to form abstract andhypothetical thought which is not bound by physical reality.

These developmental stages are said to be universal in the sense that there isno deviation from the sequence with which the structures are found to evolve, butnot all people will proceed to the conclusion of all stages.

Building on Piaget's work, Lawrence Kohlberg, a leading theorist in the fieldof moral development, established qualitatively different stages ofmoral reasoning. 'He describes six stages of moral development embedded in three levels :

Level 1 (stages 1 and 2)--Preconventional Morality: External control is recognizedand behavior becomes dependent upon the motives to avoid punishment and reaprewards.

88. J. Piaget, The Theory of Stages in Cognitive Development in D. R. Green, M. P. Ford G.B. Flamer eds., Measurement and Piaget New York: McGraw-Hill 1971) at 1.

89. Summary by J. T. Dalby, Criminal Liability in Children (1985) 27 Can. J. Crim. 137 at 140.90. H. Rosen The Development of Sociomoral Knowledge: Cognitive Stnictural Approach (New

York: University Press 1980) at 5.91. See L. Kohlberg Stage in the Development of Moral Thought and Action (New York: Holt

Rinehart and Winston 1969).92. Supra note 89 at 141.




Level 2 (stages 3 and 4)-Conventional Morality: Moral behavior becomes livingup to the expectations of existing social order and, in particular, of important figuressuch as parents and teachers.

Level 3 (stages 5 and 6)-Postonventional Morality: Self-accepted moral prin-ciples are asserted. Control is internalized and there is independence from theauthority of social groups.

As with Piaget s theory, Kohlberg also adheres to the sequence of moral devel-opment as being progressive, but may not always be fully attained. '

In examining the interplay between the law and developmental psychology,

Stephen Bates Billick opined that:

The average 12-year-old child has achieved the minimal mental capacity and moralreasoning that is expected of all adults. It [sic] terms of Piagetian development, the12-year-old child has achieved concrete operationsand can do averageadult reason-

ing. The acquisition of abstract reasoning or Piagetian formaloperations occurs onlyin approximately one third of the population. Clearly,this could not be a minimalstandard for adult responsibility. Although less established, Kohlberg'sstudies withboys and Gilligan's studies with girls support the age of 12 as the time when mostchildren have achieved a morality that recognizes thatsociety makes rules and reg-ulations for the greater of society. This same level of moral development is the pre-dominant in the adult population. This is a point that is lost on most cliniciansexamining the development of adolescents and is an obvious contribution to legalunderstanding fromapplied clinical child psychiatry and forensic psychiatry. Althoughdevelopment may proceed to universal ethics or to extensive abstract reasoning, theoverwhelmingmajority of functioning adults in even a literate society do not achievethese levels. The average adulthas concrete operational cognitionand conventional

morality of society. Because these are adequatefor adults, I believe that they shouldalso be acceptable as a standard forjuveniles. When juveniles achieve these levels,in my opinion, there should be a presumption of developmental competency.Overriding this presumption should carrythe burden of proof and explanation in judi-cial settings.

When one closely examines Piaget, Kohlberg, and other theorists findings, itis clear that at twelve years old, a child has achieved the minimal mental capacityand moral reasoning that is expected of all adults. In fact, the age may be as lowas seven.

a Reasoning

In his book Law and Psychiatry Moore wrote:

It is easy to understand the long-lasting historical tendency of the criminal law toanalogize the mentally ill toinfants and animals. For we do not think of these beingsas engaging in practical reasoning to the same extent as normal, adult human beings.Only when an infant develops sufficiently that his actions are regularly explicable

93 upra note 90 at 66-67.94. S. B. Billick, Developmental Competency (1986) 4 Bulletin Am. Aca. Psychiatry Law

301 at 304-5.



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by rationalizing practical syllogisms do we begin to see him as a moral agent whocan justly be held responsible. The same is true of the mentally ill.9

It is true that as legal concepts, infancy and insanity have a good deal in common

since both often benefit of special rules based on the notion that they are not fullyresponsible.' Should children be considered in the same manner as legally insanedefendants, psychopaths, or sociopaths since it can be fairly and rightly assumedthat young persons are, at some stage in their life, rational persons who possess normal capacities? A child and a psychopath, for example, are dissimilar in thesense that at a certain age, a child is presumed to have acquired the same capacitiesas normal, adult human beings. Whereas in the case of psychopaths, there are con-flicting views as to whether or not they should ever be considered moral agents.'For children, the question is at what age can they be considered sufficientpracticalreasoners in order to be seen as morally responsible agents.

According to Robert F. Schopp:

Any agent capable of selecting an act expected to satisfy some want in light of therelatively comprehensive set of wants can be understood as exercising some levelof practical reasoning. Certain agents, including the very young children and seriouslyretarded adults, are capable of engaging in some level of practical reasoning, althoughthey are not usually considered appropriate subjects of moral blame or criminal cul-pability.

Although these agents may qualify as practical reasoners at some minimum level,effective practical inference involves reasoning from wants and beliefs to necessaryand sufficient conditions for satisfying those wants. Such reasoning requires at leastsome unspecified degree of competence at recognizing intuitive implication andinconsistency. A competent practical reasoner, then, is one who has the capacitiesnecessary to engage in practical inference at a level of effectiveness sufficient forsome identified purpose; in the context of criminal liability, this purpose is the jus-tification of conviction and punishment....

Admittedly, it is difficult to specify the type and level of competence that isrequired to justify liability to criminal sanctions. Traditionally, however, infants andthose who suffer serious mental retardation or psychological dysfunction have notbeen considered subject to such liability.

It can be inferred from Schopp's description of the higher degree of competencethat he is referring to Piaget's formal operation stage of cognitive development.Beginning at about age eleven or twelve, during the formal cognitive phase, formalthinking emerges which is ... a particular type of thinking, namely, logical thoughtor logical reasoning. Specifically, this is the type of thought usually understoodas rational thought, thought whose main hallmarks are its coherence, its consistency,its precision, and its lack of contradictions. 9 However, it has been shown that the

95 Supra note 81 at 245.96. They are often classed together as excuses: Gross, supr note 7 at 149-51. In the Model Penal

Code, supr note 18, both mental disease and immaturity are discussed under the heading ofResponsibility.

97. See Arenella, supr note 67 at 65-69; see Duff supr note 68 at 356-57.98. Supra note 82 at 192-93.99. W. F. Overton et al. Formal Operations as Regulatory Context in Adolescence in S. C.

Feinstein, ed., AdolescencePsychiatry vol. 18 (Chicago: University of Chicago Press, 1992)502 at 503.




formal phase of cognitive development may never be fully achieved by all ado-lescents or adults: In Western countries only about 50 percent of adults attain theformal operationalperiod. Further, even those who have arrived at this period donot always function with it. Indeed, many of the demands of everyday life can be

met adequately with the use of concrete operational thinking. If that is correct,why should childrenhave a higher standard?

It appears that as young as the age of three, children are able to exercise somelevel ofpractical reasoning, but it is only by the age of six or seven that they reachthe concrete operational stage where most adults can be found 191 As explained byHugh Rosen: The emergence of concrete operational thinking brings the rigor orgenuine logic to the developing child. Although he is not consciouslyaware of it,his thinking is now governed by a rich interlocking network ofsystematically orga-nized cognitive structures ' onsequently it can be logically assumed that by theage of seven, children exhibit the same type of practical reasoning skills as normal,

rational adults.Although Schopp mentions a higher degree of competence, it remains unspec-ified. If he is referring to Piaget's formal operation stage of cognitivedevelopment,then the capacity of reasoning necessary to be considered a moral agent would bea higher standard for children than for most adults. After examining the psycho-logical data, it seems plausible and appropriate to state that a personpossesses thenecessary rationality to be considered a moral actor by the age of seven, at whichpoint he or she begins to take on the concrete level of reasoning beyond which manyadults do not develop.

b Understanding he Difference Between Right and WrongAs previously noted, much of the scientific knowledge in regard to the devel-

opment of moral thinking is owed to Piaget and Kohlberg. In Piaget's opinion,t lchildrenbegin to make moraljudgments when they shed their egocentric view oflife (ability to see things from another person'sperspective-role-takng). Therefore,a natural shift occurs in moral development which coincides with or shortly afterthe cognitive transition from preoperational to operational thought at about ageseven.

10

4

As for Kohlberg's stages, researchers do not seem to agree on the mean ageswhich separate these levels. Kohlberghimself has suggested that the ages of attain-ment are ages four to ten years for Level 1, age ten to thirteen for Level 2 and thir-teen and above for Level 3 11 Yet research done by E. Peisach and M. Hardeman

100. Supra not 89 at 12; Ralph Gemelli, Normal Child and Adolescent Detelopment Washington.DC: American Psychiatric Press, 1996) at 455 expresses the same idea.

101. Gemelli, ibid. at 309,392; H. M. Velman, The Child s Theot, of Mind (Cambridge, MA: MITPress, 1990) at 188.

102. Supra note 90 at 9; Gemelli, ibid. at 395, 398.103. See J. Piaget, Moral Judgmentof th hild (New York: Macmillan, 1955).104. R. M. Liebert, What Develops in Moral Development? in NV M. Kurtines J Gewirtz

eds. Moralithy Moral Beluavior and Moral Development (New YorL ohn Wiley Sons, 1984)177 at 179.

105. L. Kohlberg, Moral Stage and Moralization:The Cognitive-Developmental Approach in T.

Lickona, ed., Moral Development and Behavior New York: Holt. 1976) 31.



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has documented a trend to find children at younger ages responding at higher levelsof development. ° Rosen found that the postconventional level is not arrived atbefore age twenty and even among an adult population relatively few people everachieve it.' The results of a 20-year longitudinal study of moral judgment devel-opment confirms such a proposition whereby only about one-eight to one-sixthof a sample aged mid-20s and up scored at Level 3 1 1

In my opinion, the inconsistency as to what age a person reaches a higher levelof moral reasoning than Level 1 (preconventional) is of no consequence to the ageat which a child can be said to know the difference between wrong and right. Dalbycorrectly states that:

Regardless of this debate [over the mean ages which separate the levels of moraldevelopment], the relationship between moral reasoning and lawful behavior is notclose. Indeed, it could be argued that children at the preconventional level may behavemore lawfullythan children at the postconventional

stage. The postconventional rea-soning child, while acknowledging the general need for social laws, may in particularinstances contravene these laws if they conflict with internalized standards. The prob-lem in relaying these ideas to the legal context is that young offenders may displaywell developed knowledge of moral values and reasoning, yet their behavior maybe contrary to these verbalizations.'1 [emphasis in original].

What is important is attempting to determine if there is an age when childrenpossess the knowledge of moral values and reasoning sufficient to be consideredmoral agents.

It appears that as children develop their self-awareness (eighteen months to age

three years), they have the ability to appreciate right from wrong and thus allowingthem to choose between a right and a wrong behavior. One researcher explains:

After about age 18 months, toddlers become increasingly cognizant of the existenceof standards that dictate whether a behavior is good or bad, and begin to constructtwo separate categories within their mind for these two types ofbehaviors. In theprocess of producing highly valued behaviors for their parents, toddlers are assistedin being biologically prepared to acquire standards. In essence, toddlers do not alwaysneed to learn through a direct assimilation or accommodationexperience that a behav-ior is bad or harmful before they will inhibit the behavior. For example, 3-year-oldtoddlers will often experiencejealousy and anger when a new baby sister or brotheris brought home. However, despite the many opportunitiesavailable for the toddlerto inflict bodily harm on his or her new sibling, most toddlers appear to maintain thestandard that hitting a person much smaller than themselves is bad. '

In his article, Norvin Richards' refers to a study cited by another author to the

106. E. Piesach & M. Hardman, Moral Reasoning in Early Childhood: Lying and Stealing (1983)142 J. Genetic Psychiatry 107.

107. upra note 90 at 72.108. A. Colby & L. Kohlberg, Invariant Sequence and Internal Consistency in Moral Judgment

Stages in W. M. Kurtines & J. L. Gewirtz, eds., supr note 104, 41 at 47.109. upra note 89 at 141.110. Gemelli, supr note 1 at 225-26.111. N. Richards, Criminal Children (1997) 16 L. & Phil. 63 at 77.




effect that children are shorton reflective understanding -2 but long on an intu-itivemoral competence that displays itself in the way they answer questions aboutmoral rules and in the way they excuse their transgressions and react to the trans-gressions of others ; as young as four, children have an intuitive grasp of the dif-

ference among prudential, conventional,and moral rules Arenella summarizedthe same idea in one of his articles:

[b]y the age of three, most children appearcapable of appreciating the differencebetween convention [ Don'tslurp your food while eating ] and moral nor s [ Don'thit another ]. Three-year-olds show their moral understanding in part by displayingstronger feelings of obligation to moral norms than to conventions and by exhibitingfar greater emotional intensity when they violatemoral norms than when theybreachconventions. '

It has even been suggestedthat toddlers possess an innate sense of morality, a needto chose the goodbehavior as goals in themselves over the bad, not only as a meansof having their survival needs met. '

According to Ralph Gemilli ':

Before the age of 7 years, children have what Stillwell et al. ' abeled an externalconscience meaning that theyknow how to label their behaviors as good or bad andhow to obey rules. However, they have yet to view the rules as their own. They obeyauthority and expect others t monitor theirbehavior, often looking shamefullytowardadults to see if there is going to be a reaction to a misdeed.

Consequently, in his opinion, it is by the age of seven or eight that children beginto regulate andcontrol their behavior relatively independent of external restraintsand have their own internalizedset of rules andethical and moral -alues.9 Kohlberghas set this age at about ten 19 and Rosen might set this age at nine.'-

As previously argued, internalization of the rules is not a requisite of moralagency. It is sufficient for a person to know the difference between right and wrong.What is important is that at the upper limit, somewhere between the ages of sevenand ten, a child wouldor at least should be expected to know the difference betweenright and wrong. As aptly stated by Rosenin discussing the first stage of Level 1

of moral development: It is not the case that the child has no realization thatthere is a right and wrong at this embryonic stage, but that his notion of it pivots

112. Which means being aware of certain strengths and limitations inherent in the structure of humanpsychology as defined in D. Schmidtz, ational Choice and Moral Agency (Princeton, N

Princeton University Press, 1995).113. M. Pritchard, On BecomingResponsible (Lavrence, KN.: University Pressof Kansas, 1991

at 22.114. Arenella, supra note 53 at 1594.115. Noted by Gemelli, supra note 100 at 283 in referring to J agan, he Nature of he Child New

York: Basic Books, 1984).116. ]bid. at 432.117. Stillwell,B.M. et al Conceptualization of conscience innormal children and adolescents, ages

5 to 17 1991) 30 J. Am. Acad. ChildAdolesc. Psychiatry 16.118. Gemelli, supra note 100 at 299.119. Supra note 105 and supra note 108 at 47.

120. Supra note90

at71.



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around the desire to avoid punishment ' Which age however, appears mostappropriate?

I tend to agree with Dalby's opinion as he recalls Piaget's development theory':

In cognitive development, the age of seven is a significantplateau. InPiaget's scheme,most children at this age shift from an egocentric view to a comprehension of conceptsand fundamental laws of nature (cause and effect). Our society recognizes that bythis age large vocabularies have been developed, memory processes are in operationand children are considered able to participate in formalized education. With theseskills, they are typically able to fulfill the legal criterion of knowing the wrongfulnessof most illegal acts.

It is also interesting to note that seven years of age appears in another moraldevelopment context. Another widely recognized theory of morality is Martin L.Hoffman's work which emphasizes society's transmission of moral norms through

internalization, and sees empathic affect and related emotions (i.e. sympathy, guilt,caring) as the basis for moral motivation. 24 Although these attributes have beenrejected as necessary to form a moral agent when discussing Arenella's character-based conception of moral agency, it appears that by the age of three, a child feelsempathy for another's feelings.' RichardBarnum found that [t]he cognitive aspectof guilt develops most basically as a function of ordinary cognitive development,and is present in neuropsychiatrically normal children by the age two or three.'' 6

As for the second part of guilt, the emotional part, where we want a person toknow what he or she did was wrong and to feel bad about having done it, heexplains that although it develops through socialisation, primarily in the form ofpunishment, [a] child who has experienced enough of the right kind of punishmentfor misdeeds, so that he is thus prevented by his own emotions from doing wrong,is said to possess internalized or effective inhibitory guilt. This development usu-ally takes place by five to seven years of age. ' [emphasis in original]. Citing onestudy, Gemelli explains that by age two years, toddlers are able to infer the emo-tional state of another in their efforts to understand the effects of their behavioron that other person.He adds that this is a precursorto true empathy which developsbetween the ages of six and eight years'8

In a legal context, it is obvious that the reasons for obeying laws will vary, fromavoiding punishment to believing in the validity ofuniversal moral principles and

121. Ibid at 75.122. Supra note 89 at 140.123. In his article, ibid at 139, Dalby equates wrongfulness of an illegal act tomens rea. As previously

stated, since moral agency presupposes criminal responsibility, if a child meets the criminalresponsibility criteria, he or she is obviously considereda morally responsible actor.

124. M. L. Hoffman, Empathy, Social Cognition, and Moral Action in W. M. Kurtines & J. L.Gewirtz, eds., Handbookof Moral ehavior and Development vol. 1 (New Jersey: LawrenceErlbaum Associates, 1991) 275.

125. Ibid at 279.126. R. Barnum, The Development of Responsibility: Implications for Juvenile Justice in F. X.

Hartmann, ed., The Role of he Juvenile Court: From Children to Citizens vol. II (New York:Springer-Verlag, 1987) 67 at 68.

127. Ibid at 68.128. Gemelli, supra note 100 at 223.




a sense of personal commitment to them. Yet the issue at hand is that by the ageof seven, a child knows or at least is expected to know what actions society con-siders as right/moral versus those that society considers wrong/immoral.

c ontrol of Conduct: The A bilityto ontrol and Resist Impulses

It is often assumed that children are unable to resist temptation to the samedegree as adults and thusnot able to exhibit self-control. Research into this issuedisagrees with this proposition.

One type of research thatdirectly confrontsthe question of impulse control is

the research on the delay of gratification paradigms. In these studies, a childmustchoose betweenan immediate reward and a delayed reward of higher value. Onestudy has found that children as young as three years choose to delay gratificationto maximize reward and, like adults, are sensitive to the anticipated length of

delay.'2

Gemilli found that beginning at age eighteen months, toddlers do notalways immediately act but sometimes delay their action to thinL - They are com-paring the newly perceived object or behavior with their internal representations.As they delay, toddlers have time to listen to their parents' verbalized directionsabout whetheror not it is correct for them to act in a particular way. Delay of grat-ification increases as the child ages, but there is no well defined limit where achildreaches the adult level of delay. As noted byDalby, however, such research wouldbe quite difficult since the value of a particular reward would vary across ages. ,

Perhaps a more apt question would be the following:

The moreappropriate question would ask, whendoes a child develop sufficient self-

control abilities in a legal context? Typical inhibitory mechanisms are clearly evidentin most seven year olds and this is closely tied to the development of cognitive andmoral abilities. In egal framework,many more adults display poor self-control despiteadequate cognitiveability.There are recognized disinhibitoy syndromes in childrenand adults (e.g.psychopathology, attention deficit disorders, alcoholism) but theseare rarely successful defences for complete dismissal of criminal responsibility.Debates about self-control inevitablybecomes mired in confusion.'

It would thus appear to be untrue to state that, after the age of seven, a child's abilityto control impulses is not as fixed or as absolute as an adult's. Other researchers,however, state that it is not until a young person has reached what Piaget calledthe formal operational stage (after eleven years) that impulses can be controlled.In their words:

knowing that early nonformal adolescent behavior tends to be dominated byimpulses,it is not surprising that the achievement of a level of formal reflection pro-vides the adolescent with botha method of distancing himselffrom the impulses and

129 L C Schwarzeta ., Delay ofgr tific tion y preschoolers:Evidence forthe v lidityof thechoiceparadigm (1983) 54 Child Dev. 620.

130 Gemelli, supra note 100 at 239.131. Supra note 89 at 142.

132 ]bid at 142.



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unwanted affect and a structure for their self-containment. Here, Bion s metaphorof the container and the contained is useful. It is only at the level of formal reflectionthat the individual can truly, herself, operate as a container for the contained impulsesand affect. That is, impulses and affect can now be projected onto this level, processedthere, and introjectedback in a metabolized form by the self as a whole (ie., this mightbe thought of as an internalized form of projective identification)...

The outcome of this process of developing both a distance and a containing struc-ture is both a greater sense of self-control and the further development of self-iden-tity.1

33

Although the first quote appears in contradiction with this second one, it could alsobe said that they complement one another. In the former, it is indicated that typicalinhibitory mechanisms are clearly evident in most seven year old; in the latter, theauthors write about a method and a structure that develops at the formal operationalstage. Thus although a particular mechanism of self-control does not develop untilapproximately the age of twelve, it does not mean that by the age of seven, childrenhave not developed other types of inhibitory mechanisms or do not have the capacityto control their impulses. It appears that by the age of twelve, however, they shouldbe in a betterposition to exercise control over their impulses as they now have botha method and a containing structure. Obviously, self-control is also learned:

It develops as a consequence of growing up. As the young child ages, he developsa more complex neural system that is better able to manage instincts, learns fromexperience what consequences flow from what actions, acquires from his parents aset of rules by which to predict and judge those consequences, and by watching otherpeople begins to model his behavior on theirs. Most of us are naturally inclined tolearn about consequences both because we value the good opinion of our parents andbecause we come to recognize that the world is arranged so that many of the mostvaluable experiences result from controlling our proclivity to immediate gratifica-tion.

It should be noted that James Q Wilson specifically wrote that there has been farless attention given to the sources of self-control than to the sources of sympathyand that in his opinion, some of the leading books on the issue of development ofmorality in children make no reference to self-control or impulsivity.' However,as noted in the earlier quote from Dalby, by the age of seven, children have thecapacity to control their impulses. In the end, although children might typicallyexhibit less self-control, this does not mean that they do not

have the capacity toexhibit such control or have not had sufficient time to learn. Even with age andexperience, some people acquire very little self-control. Consequently, when chil-dren attain the age of seven, they reach the third and final capacity that forms amorally responsible agent.

Obviously the capacity of an individual child is debatable as there is disagree-ment among child psychologists as to the age they reach certain capacities.However, it is possible to draw an arbitrary line as close to the developmental norm

133. upra note 99 at 507.134. J. Q. Wilson, The Moral ense (New York: The Free Press, 1993) at 90-91.

135. Ibid at 85.




as possible. From the above discussion, it seemsappropriate to say that childrenhave acquired the relevant capacities to be considered moral agents by the age ofseven, as they have attained the basic principles of understanding, reasoning, andcontrol of conduct to allow them to govern their conduct according to moral and

legal norms. Consequently, it appears to be the appropriate minimum age to attachmoral responsibility.

As moral agency/moral responsibility must be established prior to discussingcriminal responsibility, when a child is seven years old or more, and therefore amoral agent, should he also be held criminally responsible at that same age?

art The Appropriate Standard to Affix Criminal Responsibility

Based upon the foregoing examination, it appears that the arbitrary ages set forcriminal responsibility in mostcountries are based upon mistaken or misrepresented

differences between the capacities of adults and young persons. Yet total arbitrari-ness and reliance on an erroneous image of developmental sequences is not nec-essary when one takes into account the vast amount of data available ondevelopment factors (reasoning, understanding, and control) relating to competence.As seen in the previous section, at the age of seven, a child's psychological devel-opment has reached a point at which he or she would meet the criteria for moralagency and would thus be susceptible to being held morally responsible.

Should the criminal law follow the psychological data and have a low minimumage of criminal responsibility? Obviously countries are aware of the availableresearch on this subject, but as explained by Irene Sagel-Grande:

here is no need for the law to follow precisely the prescriptions of science. Lawhas its own task and thatmainly is o provide for a justand rational socialorder. yfulfilling this duty, law necessarily must create its own institutions, regulations, guide-lines etc. using only the knowledge that is helpful in realising its own tasks.The factthat developmental psychology cannot providea convincing justificationfor any agelimit does not mean that the law, for its own needs, is not allowed to set special lim-its.1

36

Yet, as seen, psychology can assist in establishing an age limit. One could justas easily ask, given the success of using age as a standard, why the law should notfollow theprescriptions of science. If a child, by the age of seven, has the requisitereasoning, understanding between right and wrong and control of conduct, whyshould he or she not be subjected to the criminal law when he commits a criminalact? Indeed, this appears to be the problem we face today, that while we generallyhold that children should be dealt with differently in the eyes of the law, recentoccurrences such as the Bulger case incline us to take stock of that idea. Is it stillan appropriate approach to dealing with young persons?

One argument is that they are too young to form the criminal intent necessary

136. 1 Sagel-Grande, Looking for One Age in T Booth. ed.. uvenile ustice in the eir uropeSocial Services Monographs: Research in Practice (Joint Unit for Social Senices Research. 1991

66 at 68.



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to fulfill the mens rea requirement. Such a proposition cannot be sustained. In myopinion, whether or not a child knows the seriousness of a crime is not importantfor, as the research shows, children at a substantially younger age are well awareof the wrongfulnessof their acts, often as aware as they might ever become as anadult. As with an adult, is it not sufficient that a child knows that a crime was wrongand was intentionally committed?

Research has been done in relation to cognitive development and the conceptof mens rea This research has focused on children's views of motives and inten-tionality in wrong-doing. One research reported that children as young as five yearsunderstood both the concept of a motive as a reason for acting and the accidental-intentional distinction; however, applying the intentional-accidental distinction tosomeone else correctly takes several more years after the distinction itself is under-stood.'3 7 In another study, it was accepted that by age of six most children have theability to reason about other's intentions to do harm and it was elucidated that, at

a younger age, children are capable of considering intentionality in hypotheticalsituations involving themselves.' Based on such types of researches, Dalbyaccepted that children at about the age of seven not only possess the cognitivecapacity for a guilty mind, they are also able to make judgments about this inothers. '39 Robert M. Liebert wrote:

Both Piaget's own data and many subsequent studies, including a study by Bandurafrom a different theoretical perspective, indeed seemed to show that very young chil-dren tend tojudge the naughtiness or wrongness of acts solely on the basis of con-sequences and that a significant shift occurs between the approximate ges of 6 an d o that the intentions of the actor and related subjective considerations come to be

given some weight for the first time.'°

[emphasis added].

Indeed, these researches support the view that children can form the necessarycriminal intent between the ages of five and eight.

Another objection would be that the role of the criminal law and its mechanismsare too harsh for such a young age, for example, children should be spared thestigma of criminality or that substantial penalties are available for young personsfound guilty ofcommitting a crime. If a child of seven years displays criminal oranti-social behavior, according to developmental psychology, he or she knows orshould know that it is wrong, he or she can engage at a sufficient level of reasoning

and he or she has the capacity to control his or her actions. As mentioned byStephanie J. Millet, one perverse effect of a high age of criminal responsibility is

the following'4 1 : i a society fails to punish those who commit wrongs, the childwill continue to not understand the difference between right and wrong. Should

137. T. J. Berndt E. G. Berndt, Children's Use of Motive and Intentionality in Person Perceptionand Moral Judgment (1975) 46 Child Dev. 904.

138 C. B. Keasey, Young Children's Attribution of Intentionality to Themselves and Others (1977)48 Child Dev. 261.

139. Supra note 89 at 140.140. Supra note 104 at 179.141. S illett, The Age of Criminal Responsibility in an Era of Violence: Has Great Britain Set

a New International Standard? (1995) 28 Vand. J ransnat'l L. 295 at 346.




a juvenile justice system, above all, as one of its functions, instill and reinforcein the minds of children an understanding of right and wrong? If a nation sets a

high age of criminal responsibility, such a system may fail to achieve that goal. f a criminal system s primary goal is to focus on the victims of crimes, societyhas a right to be protected from violentcriminals, regardless of their age. The harmoccasioned by violent crimes is the same regardless of age. In order to ensure soci-ety s safety, the age of criminal responsibility should be lowered enoughto appre-hend these criminals.

Moreover, there is no reason to assume that a child must automatically face a

criminal court and its proceedings or that sentences could notvary depending onage. Though a discussion of punishment is beyond the scope of this paper, it is fairto note that as in several countries, for example England, Scotland, Canada, andSweden, systems specific to young offenders can exist in an effort to ensure thatthe measures taken fit not only the crime, but the individual, and this is the key.

While society may not wish to deal harshly with the typical minor transgressionsof youth, it is increasingly demanding effective response to those crimes whichclearly display a more serious nature.

This inclines me to consider thedoli inc p xdoctrine as a workable and effectivemeans of addressing these various concerns. The doctrine, though providing anexceptionally lowage for criminal responsibility in its traditional common law form(seven years of age), it was in fact considered a means of protecting young personswho had transgressed. It reflected the evidence as previously shown that childrenhave the capacities to be held responsible atage seven, but accepted that some vari-ation in development exists and accommodated that through a rebuttablepresump-

tion of incapacity until age fourteen.My concerns related to the doli inc p xdoctrine are firstly, that the rebuttable

presumption shouldbe reversed. The evidence shows that children should be awareof the wrongness of their acts by the age of seven, therefore, why s it not assumedthat criminal responsibility canbe affixed to them, subject tobeing proven an excep-tion? Consequently, the burden of proofshould not reston the prosecution to showthat the child did possess the necessary conditionsof moral agency, but rather onthe defence to prove an incapacity. Such a rule would make it possible for com-petency in criminal matters to be examined on an individual basis. In light of ourknowledge of child development, I believe that it is a sensible approach.

Secondly, would suggest that my proposalfor the rebuttable presumption alsohave an age cap less than those that presentlyexist. If we follow Piaget s view oncognitive development, which appears to be generally accepted, by age twelve a

youn person would have fully developed throughthe concrete operational stage.This stage, as noted earlier, is as high a degree of attainment as most persons achieveand it is unreasonable to assume that young persons would or in fact should developany further. Therefore, they have all the necessary requisites to be held criminallyresponsible by age twelve without needing to provide the benefit of a rebuttablepresumption. It should be made clear that while we may sometimes refer to a child

142. Seymour, supr note 41 at 85 expresses the same idea.



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as immature, that is not to say that mentally, they do not possess the capacities dis-cussed earlier in this paper upon which responsibility rests.

Conclusion

As demonstrated, countries are constantly attempting to set appropriate agesof criminal responsibility and as is equally clear, the results are so varied as to con-firm nothing more than confusion on this point. This need not be the case.

Starting with the proposition that criminal responsibility implies that a personcan also be held morally responsible, I first attempted to determine what conditionsare necessary to establish moral agency. After examining different positions onthe idea, I determined that the criteria as elucidated and defined by Hart weretheappropriate ones. They consist of understanding the difference between right andwrong,

reasoning,and

controlof

conduct. With the help of developmental data,I was able to conclude that after the age of seven years, a child has the generalcapacities and competencies of the normal adult to be treated as a morally respon-sible agent.

We must then consider whether criminal responsibility can attach as soon asone has attained the status of a responsible moral agent. The issue is best expressedby Williams:

Of course any age must be arbitrary. The governing considerations are pragmatic.At what age does one wish to be able to administer legal punishment to a juvenile?Even if it is only a fine, or sending him to an attendance centre or detention centre,

still if the outcome is to be punitive in intent this implies that the offender mustbe

legally responsible Even if punitive sanctionsare intended to be used only for par-ticular bad offenders, they still imply that criminalresponsibility mustbe attributedto offenders of that age.

4

In my view, the age of seven years is a reasonable minimum age at which toaffix criminal responsibilityprovided that a system such as the modified doli inca

p x doctrine that I have proposed is implemented.The psychological research also displayed that children at the age of seven are

able to form the requisite knowledge and intent that in an adult would be sufficientfor criminal responsibility. There can be no real justification fortreating such young

persons differently unless it is to propose a different justice system for dealing withthem in such a way that the wrong is still dealt with and recognized. My proposalfor a modified doli inc p x doctrine allows for legal responsibility to attach to a

child as young as seven, but also permits those who can demonstrate a lesser degreeof awareness of their acts to be excused, thereby limiting punishment to those whoknowingly and willingly committed a crime. It further recognizes that at the ageof twelve, children s relevant mental development is comparable to that of a typicaladult and no longer allows an exemption from full responsibility.

By this means, we are capable of addressing society s concern by dealing with

143 Williams supr note 42 at 638 39



Responsibility and the Young erson 309

crimes committed by young people, but our attention is focused only on those whowere aware or should be aware o the wrongness o their acts. A further benefitis that this in no way infringes upon a nation s ability to implement separateprocesses or punishments for these offenders.



Documents

Responsibility and the Young Person