Updated: Nov 18, 2022
If I was 9 years old, and murdered someone here in Canada, the Canadian law system can't put me in jail. Even if it known as fact that I indeed murdered another person, they just aren't allowed according to our laws. Hypothetical 9-year old me wouldn't even be prosecuted for the crime, and there is no juvenile detention nor facility that I would be required to go to. This seems a bit strange, nonsensical doesn't it? Is this really justice? Except there's several reasons why our laws regarding child criminals are the way they are.
A child in crisis, a child in trouble, a child who is involved in a crime, is still a child. This can be hard to keep in mind when crimes committed by children make news headlines. However, we must remember that these youth are physically and mentally in a developing stage and their young ages call for an appropriate response. The purpose of the legal system is to serve justice. According to the LDOCE (Longman Dictionary of Contemporary English), the phrase “justice has been served” means when someone has been treated fairly and has been given a punishment they deserve. Another definition states that it is the administering of deserved punishment or reward. Deserve is the key word here and to determine whether a person deserves a certain punishment or not is the controversy of this debate on criminal responsibility for children.
The age of criminal responsibility in Canada is currently 12 years old. Ages lower than 12 are presumed in law to be doli incapax (presumption in law that a child is incapable of forming the criminal intent required to be considered guilty of a crime) . The Youth Criminal Justice Act applies to those between the ages of 12 and 17 and grants special protections to those who are not adults. The age of 12 for criminal responsibility is the most reasonable considering many of the pieces of evidence that justify this decision.
A person deserves to be punished for a crime when he or she is fully aware of the consequences and implications of their actions on themselves and their victims while committing it with purposeful, malicious intent. Then the question arises of whether a child “criminal” has the capacity to comprehend those consequences while committing a crime. The prefrontal cortex of the brain, located at the front of the brain, plays a central role in cognitive control functions. This part of the brain is responsible for reasoning, problem solving, comprehension, and impulse-control. The frontal lobe, which the prefrontal cortex is a major part of, controls planning, self-control, memory formation, empathy, and attention. It must be noted that the prefrontal cortex only starts to mature during adolescence (usually defined as the age range of 12-24). This means that typically a child under 12 has an underdeveloped prefrontal cortex and frontal lobe that still has much progress to go through until its maturity. These children therefore lack the capacity for skills including impulse control, planning, and empathy. The same conclusion can be derived from a psychological lens. Jean Piaget, one of the most famous child development theorists and psychologists of all time, proposed that intelligence develops through a series of stages. His theory of cognitive development shows 4 stages, the last of which consists of the ages 12 and up. This stage is called the Formal Operational Stage and according to Piaget, thinking becomes much more sophisticated and advanced in this stage. This stage features the development of skills such as logical thought, deductive reasoning, and systematic planning. It should be understood that a child doesn’t biologically nor psychologically have the ability to competently control their impulses, control emotions or consider future planning and consequences. Therefore, a child cannot deserve retributive justice and be sentenced to the same sentence as compared to a fully matured adult who has committed the same crime. For a mature adult and a developing child to be treated as equals and get the same punishment is unfair. These pieces of evidence support that the age 12 is an appropriate number to set the minimum age for criminal responsibility.
To make sure that this number is acceptable, the arguments opposing this age should most definitely be considered. One of the arguments suggest that by keeping the age of criminally responsible at 12 (or increasing this age) will only encourage more youth to commit serious crimes knowing they wouldn’t be held accountable for it. Therefore, they propose that the age should be lowered to deter youth from committing crimes. According to the findings of a research conducted by AARHUS University, this claim is incorrect. Lowering the age of criminally responsible does not, in fact, deter youth from committing crimes. The researchers of this university analyzed the effects of when the age of criminal responsibility was lowered in Denmark from 15 to 14 in 2010 (until it was raised back up to 15 in 2012). After analyzing a set of a total of 512,369 children, the researchers concluded that they could “see no reduction in the share of 14-year-olds who commit penal code offenses.” (Anna Piil Damm, Professor at Aarhus BSS). Lowering the age would not only have little to no effect on deterring kids from committing crimes, but it would mean that younger and younger children are thrown into adult jails. The perspective of the victim or victim’s family must also be considered. The irreversible consequences of a child’s crime can devastatingly affect the victim or victim’s family. This is one of the strongest motivators to raise the age of criminal responsibility. The anger and sorrow from the victim or victim’s family that causes them to call for severe punishments for the offender is more than understandable. Nevertheless, for the greater good for the greater of society, the situation needs to be viewed objectively. Justice must address the question of what action will bring the greatest result for society. According to award-winning magazine Rethinking Schools, once thrusted into adult prisons, youth are “twice as likely to be beaten or to commit suicide and five times as likely to be sexually assaulted”. Moreover, those who finish their sentences and come out of prison have “higher recidivism rates than kids charged with similar offenses but kept under the supervision of juvenile courts”. A child who hasn’t even had a chance to develop fully nor better him or herself, does not deserve to be driven to suicide, assault, or sexually assault. Furthermore, higher recidivism ultimately means more crimes and more affected families, resulting in the opposite of what serving justice is meant to do.
The way youth who break the law are dealt with should always have reform and rehabilitation in mind. Children who develop serious antisocial behaviour and violence most often have a background of family instability, parental neglect or rejection, exposure to violence at home, poverty, and physical and sexual abuse. All of these factors can also affect how the child’s brain develops including poor impulse control, lack of empathy, and abnormal stress responses. Children who struggle with the legal system should then be treated as victims of violence or neglect or violation of their fundamental human rights. UNICEF states, “Children in conflict with the law are already victims of circumstance.” The solution to deterring children from committing crimes could be found in a larger investment in early identification of children at risk, timely interventions, family support programs and mental health services. As UNICEF says, “If we fail to understand the underlying reasons how and why children commit crimes, we as adults, fail our children.” The legal system is to promote justice for the greater good of society. The consequences sentenced by this system must be fair and just. By having a focus on rehabilitation and reform for youth who break the law, society can grow to be better. After all, a child in crisis, a child in trouble, a child who is involved in a crime, is still a child.