Child Law International Alliance (CLIA) and Beijing Children’s Legal Aid and Research Center (BCLARC) has co-hosted its second webinar series for “International Child Protection Focal Points” on Minimum Age of Criminal Responsibility and Juvenile Justice on 210th Stp. 2020. Key highlights of the webinar are presented as follows.
Ann Skelton is a Professor of Law at the University of Pretoria, where she holds the UNESCO Chair in Education Law in Africa. She was Chairperson of the Advisory Board of the United Nations Global Study on Children Deprived of their Liberty, and is currently a member of the UN Committee on the Rights of the Child, starting from 2017.
Professor Skelton gave a thorough interpretation of general comment No. 24, which was introduced in 2019 and replaced general comment No. 10. She discussed the rationale behind the replacement which pinpoints the issue of the minimum age of criminal responsibility. It simply says that States must set a minimum age, but it does not stipulate the specific age at which the minimum age of criminal responsibility should be set. While the Convention on the Rights of the Child doesn’t seem to provide sufficient guidance, general comment No. 10 tried to articulate an international standard. The Committee on the Rights of the Child concluded that the minimum age of criminal responsibility below the age of 12 was too low, and it did not meet the international standard. Any State that had a minimum age of criminal responsibility below 12 must raise it to 12 and continue to raise it. In the decade followed, a large number of States in the world raised their minimum age of criminal responsibility to at least 12. For instance, South Africa once had a very low minimum age of seven, and had raised it to 10. Now, South Africa has raised the minimum age to 12, and it will consider raising the age again within five years.
However, Professor Skelton noted that there were a few examples of States going in the opposite direction, such as Georgia, Hungary and Denmark, somehow as a probable result of misunderstanding general comment No. 10 to be an invitation to lower the minimum age. They received stern feedback from the Committee, and Denmark, for example, brought the minimum age back to 15 years old, which was where it had been before. Professor Skelton also expressed her concerns in countries where there is an ongoing conversation about possibly lowering the age. She restated that States should not lower the minimum age of criminal responsibility. Instead, they should consider raising it if it is low. This is in line with the Committee’s standing in general comment No. 24.
Under general comment No. 24, the Committee no longer views 12 as an appropriate minimum age of criminal responsibility. The committee applied documented evidence in the field of child development and neuroscience, which indicates that maturity and capacity for abstract reasoning is still evolving in children aged 12 and 13. Therefore, they are unlikely to understand the impact of their actions or to comprehend criminal proceedings. They are also affected by their entry into adolescence, which is a unique defining stage of human development, characterized by rapid brain development, affecting risk taking, certain kinds of decision making, and the ability to control impulses. Children at this stage cannot always make good decisions. The Committee is asking States to publish and take into consideration new knowledge in neuroscience and developmental psychology, and increase the minimum age accordingly to at least 14 years of age.
Professor Skelton emphasized that States should not reduce the minimum age of criminal responsibility under any circumstances in accordance with Article 41 of the Convention which says that States having a higher level than the standard in the convention should not lower it. Besides, Professor Skelton also points out another interesting area addressed by general comment No. 24. There are some children whose chronological age might be above the minimum age of criminal responsibility. However, because of their certain specific features, they might not have criminal responsibility. For example, children with autism spectrum disorders, fatal alcohol spectrum disorders, or acquired brain injuries. After all, age is not everything. Even if the stipulated minimum age is 14 and a child is 15 years old, that particular 15-year-old may not have a mental age enabling his/her to understand the difference between right and wrong and act in accordance with that knowledge or even to follow the proceedings.
Professor Skelton also asked the key question: what are States doing with children who are below the age of criminal responsibility when they commit crimes? In practice, a number of children have been sent to care and protection system, even into the residential care centers. The Committee does not support such action. Professor Skelton points out that, if the States already have a minimum age at the right approach, they should focus on improving the criminal justice system for children in line with general comment No. 24.
Mr. Tong is the president of Child Law International Alliance and the Director of Beijing Children’s Legal Aid and Research Centre. He has been a public interest lawyer and child rights advocate for more than 20 years. During the panel discussion, he pointed out that the minimum age of criminal responsibility is not “stable”, a few countries have lowered it in the past years. There are many complicated reasons for that. Mr Tong visited multiple US and Australia law school as a visitor scholar. He talked about two different juvenile justice systems, one exemplified by the US with its specialized juvenile justice system, the other, represented by China, where a unique juvenile justice system has yet been formed. Tong mentioned how the American system is far from perfect as American experts shared with him that children taken into the juvenile justice system at an age too young can be problematic.
Mr. Tong discussed in detail the Chinese system where juvenile delinquency is incorporated within the adult criminal justice system. This is big difference between China and many western countries’ legal systems. The lack of juvenile justice system has led to an awkward situation where not reached the minimum age of criminal responsibility commit serious offences, yet little protection or correctional measures are provided.
Although Chinese law stipulates children in conflict with the law can be take into governmental rehabilitation. In practice, there is no policies or regulations implementing governmental actions. Most children will only be disciplined by their guardians. Most of the times, their behaviors do not get rectified as parents do not have the relative knowledge and skills to educate their kids.
Mr. Tong cited a recent incident in 2019 where13 year-old boy killed a 10-year-old girl. Because the boy is below 14 years old, he could not be held accountable under the criminal procedure. Such incidents have sparked public demand for lowering the Minimum Age of Criminal Responsibility.
Mr. Tong stressed his objection to lowering Minimum Age of Criminal Responsibility but offered consolation to public concerns. He emphasized that finding a balance between reassuring the public and protecting children’s interests becomes the inevitable challenge all child protection NGOs and professionals have to face.
In the midst of China’s overhaul of the “Law on the Protection of Minors” and the “Law on the Prevention of Juvenile Delinquency”, BCLARC hosts this webinar to bring more insights to China and the global community. On the journey of exploring the best practices and methods to advocate child rights, BCLARC recognizes the crucial value and importance of child law. It hopes to work with child protection experts and professionals around the world to advocate, promote and perfect the child law systems within different countries. So that CRC and other international child law regulations can be better implemented. BCLARC is committed to strengthening legal protection for the healthy growth of our children among international countries.
Jeremy Daum is a senior research scholar in law and senior fellow at the Yale Law School Paul Tsai China Center. Addressing the issue of the minimum age of criminal liability, he recognizes the importance and difficulCties of the topic. The general theme, he stressed, is to have a discrete justice system for juveniles. Compared with the adults’ system, it should be mostly civil with more informal procedures and separate sentencing patterns. For juveniles, the emphasis is on TREATMENT, not PUNISHMENT. However, over the last several years, many states in the US have made the discrete juvenile justice system a quasi-criminal system, or even authorized the transfer of children to the adult system with increasing frequency. Juvenile offenders of serious violence in some states even begin their procedure in the adult system and can only be transferred to the juvenile justice system upon judges’ affirmative decision. This results in the shocking image of a 10-year-old boy, who had murdered his grandfather’s girlfriend, wearing an unfit prison uniform. The prison has nothing for children. They’d kept him in a separate cell until his trial. The guards did not receive any reasoning how to deal with them. Putting him alone to keep him isolated from the adult population just means he’s in solitary confinement. The boy was given coloring books since he was too immature to understand where he was.
Mr. Duam pointed out that lowering the minimum age of criminal liability requires rational proves. The burden should be laid on those who argue a change is needed, not on those who advocate to keep the minimum age of criminal responsibility as it is. They should be able to articulate the goals of the proposed policy, and that the goal is likely to be achieved by the change. The goals of a criminal justice system generally can be deterrence, incapacitation, rehabilitation, retribution, and restitution. There should be data to show which of these goals is served by prosecuting a child or criminalizing more children, so as to quantify the gains and loss of adjusting the minimum age of criminal responsibility.
Mr. Duam stressed that criminalizing children hurts the children as well as the society. Development in neuroscience and cognitive science has showed that children are less mature and are less able to form moral judgments. They are less capable of controlling their impulses and are less aware of the consequences and nature of their acts. Concerns have been raised that since children are committing more serious offences, they’ve already grown up. But there is no correlation between the harmfulness of an offence and a child’s maturity. It doesn’t necessarily mean that children are growing up faster. In fact, it might show their immaturity and their inability to understand how vile their acts are and how horrible the consequences are. Many people would also ask this question —— where is the sympathy for the victims of severely violent crime committed by children? However, vengeance or retribution is not what successful criminal policy based on. Hence, the point of view from the victims’ side is different and should not be the sole base of law-making. Therefore, the minimum age of criminal liability should not be lowered just to mollify public opinion or echo the increasing number and severity of juvenile offenses.
The legitimacy of any criminal punishment rests on the culpability of the offender, and punishing those who are not culpable is an offense itself. The offence committed by children is less appalling than that of an adult. Children are less responsible and less blameworthy than adults, their diminished responsibility means that they deserve lesser punishment than adults who commit the same crime. Ultimately, the crimes of children are also not purely their own. They’re not the product of individual rational choices, but the society also share some of the blame because we create conditions that lead to juvenile delinquency —— violence at home, lack of opportunities for school and employment, unstable neighborhoods, rapid urbanization, and organized crime. This is why the emphasis should be on treatment and rehabilitation rather than punishment in the development of the juvenile justice system.
Jeremy Daum stressed that policy should be driven by data. Data can show that the instincts on these policies are wrong, even when we mean to do well by the children. If the goals of juvenile justice are deterrence or rehabilitation, the crime rates of recidivism should be quantified. With regards to juveniles, the data has shown that the key to deterrence is the certainty of punishment, but not the severity. That means it isn’t harsher penalties that scare children away, it is knowing that they will be caught, even if the punishments aren’t severe. It’s knowing that they cannot get away with the offense. If the goal is rehabilitation, there’s ample evidence showing that criminal punishment model isn’t working and could even make the problem worse. Contrary to the expectations, data in the US have shown that for most young offenders, the situation is worsened by minimal contact with the criminal justice system, even where the sole punishment is to have to maintain contact with a probation officer periodically. This can make a mild or low risk offender more likely to offend again. In the environment of jail, they gradually learn to be harsher criminals. Besides, incarceration can lead to rampant abuse of children, including violence, sexual abuse, and also increased risk of suicide. After all, treating kids like criminals makes criminals, and makes the problem worse.
Kiiya is chief executive of C-Sema, and he has over 15 years of experience in this area of work. Over the years he has worked with teams to develop an elaborate strategic plan aiming to give a voice to children through evidence generated data. He has been instrumental in building synergies important to advance children’s agenda in Tanzania. He pioneered the formation of National Child Helpline in Tanzania, Tanzania Child Online Protection Taskforce and Missing Children Tanzania. Kiiya holds a Bachelor’s degree in Law (LL.B.) and a Master’s degree in Social Innovation.
In his presentation, Kiiya discussed the agreeable legal age of criminal responsibility in Tanzania. It essentially follows the CRC comments and instruments, the constitution, and the penal code, the law of the child act in the mainland, and the law of the child in Zanzibar. Tanzania has a population of about 50 million, and half of it is children of 18 and below. This is an important background information regarding the discussion of the minimum age of criminal responsibility. Tanzania is a union of two parts, Zanzibar and the Mainland, thus there are two children’s laws which differ slightly, but they almost follow the same suit. In Tanzania, the minimum age of criminal responsibility is 10 years old. But in Zanzibar, that age is 12. There are specific provisions in both Mainland’s and Zanzibar’s law, prescribing that boys of 12 (or 14, in the case of Zanzibar’s law), are not capable of having sexual intercourse. Provisions as such prevent certain boys from being prosecuted of sexual offences.
Then, Kiiya briefly exhibited what the juvenile court system is like and how that works for a child above the minimum age of criminal responsibility, which was also the core concern and area of work for a child’s rights organization. In accordance with the bill of rights, there is a requirement for a child to either be represented by their parents or a lawyer if they can afford. Most importantly, the law requires that special courts should be in place for children, that children should be tried in separate rooms with enhanced privacy protection, if possible. The mandate to set up special courts for children are held by the chief justice. Until 2017, there had been only one such court, but between 2017 and 2020, the number reached 130. However, there are 178 districts across the country, and there are numerous children, meaning that there are still 48 districts lacking the children’s court. As stipulated, a child is required to be taken to court within 24 hours. But in practice, this is rarely followed. Nevertheless, this requirement is especially important because sometimes the child is held with adult offenders, making the situation more complicated.
If children above the minimum age have committed offenses, they would be in custody in retention homes when they are waiting for trails. These retention homes are set only for children, and no adults are supposed to be there. There are about five retention homes built across the country. This number is far less than the number of districts, meaning that most of the places in the country do not have these structures. When a child is sentenced, he/she is supposed to be taken to an approved school, but not jail. But unfortunately, there is only one approved school. In an approved school, children go back to normal classes and learn to become good citizens. The core idea is not to put children in adult prisons, but to let them have their own space where social welfare officers, teachers and guards are all in place for them.
Deepika is a practicing lawyer in India. Her practice focuses on a broad spectrum of cases ranging from child rights to civil litigation. She mapped out the law in India with respect to the minimum age of criminal responsibility. Section 82 of the penal code set the minimum age of criminal responsibility at 7. It is presumed that children below this age does not have the mental capacity to commit crimes. Section 83 lays down that nothing is an offence which is done by a child above 7 years old but under 12 years old, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. Thus, there is an exception of criminal liability for a child between 7 and 12, where they can be also tried. However, the age of 7 is set in 1860 Penal Code, which has a history of nearly 200 years. There is rising voice of bringing the minimum age up in accordance with the current international standards set in UNCRC and relevant general comments.
Deepika introduced that there had been a juvenile act 2000, but in 2015, bowing down to the public pressure partly due to children’s involvement in rape cases, the new juvenile justice act was brought in. The 2015 Act is not in line with the CRC comments, because a preliminary board was set to assess juvenile who are in conflict with law in the age group of 16 to 18 years old. If it has shown that they had the mental and physical capacity to do this crime, then they can be tried as adults in a regular criminal justice system. However, Deepika pointed out that this was wrong at many levels because children cannot be put to prisons where adults are also placed. They cannot be subject to the same criminal justice system as adults. Nevertheless, there have been a few prosecutions under the new law.
After giving a brief overview of the stipulation in law in India regarding juvenile justice, Deepika moved to the introduction of relevant court practice. So far, the Indian courts’ view is more in line with what the UNCRC and the general comments. It is not swayed by any public pressure just because one particular case had a minor as perpetrator. In the case of Salil Bali v. Union of India, the Supreme Court recognized that the 2000 Juvenile Justice Act was restorative but not retributive, providing for rehabilitation and reintegration for children in conflict with law into mainstream society and that the biological/physical age of 18 years as the criterion for determining juvenility was fixed by experts in child psychology and behavioural patterns and that up until the age of 18, children in conflict with law can still be redeemed and restored into mainstream society instead of becoming hardened criminals.
However, as a knee jerk reaction of minors committing heinous crimes in recent years, Section 15 of the 2015 Juvenile Justice Act lays down that an assessment board should be set up. This board consists of psychologists and child rights experts as well. And what they do is they assess the child’s physical and mental capacity. If it was shown that certain criteria were met, the child could be tried as an adult for heinous crimes. However, such assessment may be very subjective, and it may not stand the test of time. The setting up of such board was problematic and has been met with public concerns.
At last, Deepika shared a good practice set by the Supreme Court in the Case of Shilpa Mittal v State (NCT), where the court noted that vague meaning of “heinous crime”, and interpreted the law in favour of a child. As the closing remark, Deepika calls for an increase of minimum age of criminal liability, and also more juvenile justice practices to be in line with the current international standard.
Ms. Guangxing Zhu is an assistant professor of Criminal Law at the School of Criminal Justice at China University of Political Science and Law. She has gained ample research experience in the filed of child sexual offense, gender-based legal issues, and comparative criminal law.
To begin with, Ms. Zhu gave an introduction on relevant laws within Chinese criminal justice system regarding minimum age of criminal responsibility. In China, the minimum age of criminal responsibility is 16, but a juvenile who has reached 14 but not 16, is also responsible for several severe crimes, including intentional killing, intentionally injuring another person, the crime of rape, robbery, drug trafficking, arson, explosion, and poisoning. Besides, a person who has reached the age of 14 but not the age of 18 who commits a crime shall be given a lesser punishment or a mitigated punishment. When a person is not criminally punished because he has not reached the age of criminal responsibility, the head of his family or guardian is to be ordered to subject him to discipline. When necessary, he may also be given shelter and rehabilitation by the government.
Other provisions relating to juvenile justice include the stipulations of recidivism, probation, and reporting duty. These provisions provide additional protection to the rights of juveniles. Article 65 of the Criminal Law sets heavier penalty for certain recidivists, but it is not applicable to juveniles. Hence, if a juvenile under 18 commits two or more crimes before he/she turns 18, no matter how many crimes he/she commits, he/she is not regarded as a recidivist by the law. The second relevant clause is the probation. For juvenile under the age of 18, the court shall announce probation if they meet certain conditions. This means the court does not have discretion on this issue, which further protect juvenile’s rights. The third relevant clause is about the reporting duty. According to Article 100 of the Criminal Law, when people join the military or seek employment, those who have received criminal punishments according to law shall factually report to the relevant units the punishments they had received and shall not conceal them. However, whoever is given a penalty lighter than imprisonment of 5 years for a crime committed under the age of 18 shall be exempted from the reporting obligation.
The above-mentioned clauses regarding juveniles in the context of recidivism, probation and reporting duty were all added to the Criminal Law in 2011. Ms. Zhu commented that these clauses contribute a lot to the protection of juvenile criminals from heavy punishment.
However, China faces lots of challenges in dealing with juvenile delinquents. There are cases where children under 14 committed horrible crimes, knowingly taking advantage of the stipulated minimum age of criminal responsibility. Cases like this increase public support to lower the minimum criminal responsibility. For instance, in 2019, a 13-year-old boy murdered a 10-year-old girl because she had when he tried to rape her. The 13-year-old were very clam after performing the killing. He claimed that he was not yet 14, thus the Court could not punish him. Recently, the Court ruled that this 13-year-old boy were not a criminal, but he should be sent to the rehabilitation center for three years.
Ms. Zhu then expresses her concerns on the execution of rehabilitation in China. The Criminal Law does not define specifically who should be subject to rehabilitation, nor does it specify what kinds of rehabilitation measures will be taken, and how should we evaluate the outcome. There is no further legislation, either. Looking at the practice, lots of Chinese scholars have criticized that the current rehabilitation centers are more focused on the deprivation of liberty, rather than focusing on the education of juveniles. In some places, juvenile offenders are even put in the same place with adult criminals, exposing these children to risks of stigmatization, as well as access to criminal network. Now, there are on-going discussions in China regarding how to improve the rehabilitation system so that we can best protect those children who are under the minimum age of criminal responsibility, as well as reduce juvenile delinquency. This is not an easy job.
At last, Ms. Zhu notes the tension between the public discussions on the age of sexual consent and the age of criminal responsibility. When a case of sexual abuse occurs, there would be voices to raise the age of sexual consent. People would be saying that children are vulnerable and immature. They are not capable of making decisions regarding sexual activities, and the age of sexual consent should be raised to protect more children. However, when a juvenile commits a severe crime, people would be saying that these children are as mature as adults, and should be held criminally liable as an adult. These two arguments understand children from distinctive perspectives, and further research is needed to reconcile them.