Nothing perfect about 10 when it comes to the law

We wouldn’t think of letting a 10-year-old vote, drink, drive, fly unaccompanied, have a Facebook account or consent to sex. However, we do consider it possible for a 10-year-old to form the mental capacity to commit a crime.

That strikes me as odd. The eight Australian state and territory attorneys-general, however, aren’t so sure. 

Last week they knocked back a concerted campaign by advocacy organisations including the Australian Medical Association (AMA), Law Council and National Aboriginal and Torres Strait Islander Legal Services (NATSILS) to raise the minimum age of criminal responsibility in Australia from 10 to 14, saying that more time is needed to examine “the need for adequate processes and services for children who exhibit offending behaviour”. Can kicked, down the road.

The push to raise the age has gained recent prominence, partly off the back of the Black Lives Matter movement. It is heavily focused on a peculiarly Australian issue: our insanely high rate of Indigenous incarceration. As the campaign points out, 65% of children aged 10 to 13 in prisons are Aboriginal or Torres Strait Islander. Most of them are in not for serious crimes of violence, but property offences such as stealing.

That’s the status quo, and it stupidity speaks for itself. We know that the only predictable consequence of early engagement with the criminal justice and prison system is the high probability of a broken life.

The specific practice of subjecting very young children to criminal justice engages an even more fundamental question than cause and effect or systemic racism, however. It asks us to face up to why we criminalise children’s wrongdoing.

In Australia, a child under the age of 10 cannot commit a crime: the principle of doli incapax dictates that they are incapable of forming criminal intent. Between 10 and 14, the principle turns into a presumption; the prosecution must prove beyond reasonable doubt that the accused child knew what they did was wrong (as opposed to just naughty).

The choice of these particular ages — 10 and 14 — was never scientific. In our inherited common law from England, the lower age was seven and the courts came up with the under-14 presumption as a kind of safety valve. Parliament later moved the minimum up to eight, then 10.

In Australia, it wasn’t until 2000 when all the states and territories were finally on board with the currently uniform minimum age.

The presumption of incapacity for children aged 10-14 has always been controversial, because of the inherently weird logic on which it is based: that “normally”, children that age don’t have the mental maturity to form criminal intent, but that there may be odd exceptions to that rule. As a matter of logic, that means that the children we feel okay about punishing are the abnormal ones. 

The issue crested in the UK after the horrific Jamie Bulger case in 1993, when a six-year-old was abducted and deliberately killed by two 10-year-olds, who were subsequently convicted of murder. One result of the case was that the doli incapax presumption was abolished, leaving children between 10 and 14 in the same position as adults.

A sensational case in Australia raised the same concerns: in 1999, a boy was prosecuted for manslaughter in NSW; when he was 10, he had thrown a six-year-old child into a river, knowing he couldn’t swim. 

The issues are obviously fraught when the debate centres on the extremely rare, aberrantly violent fringe of young offending exemplified by these cases, or the more recent incident in Sydney where a 13-year-old boy was accused of raping a small girl. However, as with much criminal justice conversation, the exotic obscures the more banal.

Better to focus on a universal question: why do we want to consider ever throwing a small child in prison? All of the justifications for punishment — rehabilitation, retribution, specific and general deterrence — relate specifically to the human brain. Except one: removal from society of the physical threat which that offender presents.

As the Royal Australasian College of Physicians has said, “impulse control, the ability to plan and foresee the consequences of one’s actions are vastly less developed in a 10-year-old than an adult”. Neurological science clearly establishes that the parts of the brain most relevant to appreciation of wrongdoing are among the last to mature, not fully developing until around 25.

Given that, the logic behind punishing young children is simply non-existent. If their brains are too immature to really form criminal intent, or even if that’s mostly the case (as the doli incapax presumption dictates), then none of the purposes of punishment will be served either. All it will achieve is an accelerated maturing of a different kind: towards, not away from, criminality.

That leaves society’s protection from deviant extremes: the few children who do truly horrific things. They exist, of course. They need help; they may even in some cases have to be institutionalised. Punishing them achieves nothing but satisfaction of an ancient blood lust; a residue of our more primal instinct to cast out the devil among us.

We can do better than this. It’s well past time to bring this law into line with both reason and humanity.

How do we address the age debate? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication in Crikey’s Your Say section