Defense of infancy

Defense of infancy

The defense of infancy is a form of defense known as an excuse so that defendants falling within the definition of an "infant" are excluded from criminal liability for their actions, if at the relevant time, they had not reached an age of criminal responsibility. After reaching the initial age, there may be levels of responsibility dictated by age and the type of offense committed.

Under the English common law the defense of infancy was expressed as a set of presumptions. A child under the age of seven was presumed incapable of committing a crime. The presumption was conclusive prohibiting the prosecution from offering evidence that the child had the capacity to appreciate the nature and wrongfulness of what he had done. Children aged seven to fourteen were presumed incapable of committing a crime but the presumption was rebuttable. The prosecution could overcome the presumption by proving that the child understood what he was doing and that it was wrong. [1]Children fourteen and older were presumed capable of committing a crime. However, the child could rebut this presumption by establishing that because of his immaturity he was incapable of understanding what he had done or the wrongfulness of his conduct.[2]




Within England/Wales, criminal responsibility is considered the age of 10 years. This is when a child becomes criminally responsible for their actions and the consequences of their actions. From this age onwards, they can be prosecuted for any criminal offence in a Youth Court. In exceptional circumstances, most notably the case of the murder of James Bulger in Liverpool in 1993, children can be tried as an adult in an adult court.

From the age of 10 onwards, individuals are then considered an adult in the eyes of the law. Therefore, all punishment given by the courts or other law enforcement agencies will rest solely upon them.

The age of criminal responsibility

Governments enact laws to label certain types of activity as wrongful or illegal. Behaviour of a more antisocial nature can be stigmatized in a more positive way to show society's disapproval through the use of the word criminal. In this context, laws tend to use the phrase, "age of criminal responsibility" in two different ways:

  1. As a definition of the process for dealing with an alleged offender, the range of ages specifies the exemption of a child from the adult system of prosecution and punishment. Most states develop special juvenile justice systems in parallel to the adult criminal justice system. Here, the hearings are essentially welfare-based and deal with children as in need of compulsory measures of treatment and/or care. Children are diverted into this system when they have committed what would have been an offense in an adult.
  2. As the physical capacity of a child to commit a crime. Hence, children are deemed incapable of committing some sexual or other acts requiring abilities of a more mature quality.

Thus, each state is considering whether any given child has committed an offense, and given that answer, what the most appropriate measures would be for dealing with a child who has done what this child did. It is noted that, in some states, a link is made between infancy as a defense and defenses that diminish responsibility on the ground of a mental illness. Distinctions between children, young offenders, juveniles, etc. are used to denote matching levels of incapacity. The majority view is that this linkage is not constructive in that it implies that children are in some way mentally defective whereas they merely lack the judgment that comes with age and experience.


This is an aspect of the public policy of parens patriae. In the criminal law, each state will consider the nature of its own society and the available evidence of the age at which antisocial behaviour begins to manifest itself. Some societies will have qualities of indulgence toward the young and inexperienced, and will not wish them to be exposed to the criminal law system before all other avenues of response have been exhausted. Hence, some states have a policy of doli incapax (i.e. incapable of wrong) and exclude liability for all acts and omissions that would otherwise have been criminal up to a specified age.[3] Hence, no matter what the infant may have done, there cannot be a criminal prosecution. However, although no criminal liability is inferred, other aspects of law may be applied. For example, in Nordic countries, an offence by a person under 15 years of age is considered mostly a symptom of problems in child's development. This will cause the social authorities to take appropriate administrative measures to secure the development of the child. Such measures may range from counseling to placement at special care unit. Being non-judicial, the measures are not dependent on the severity of the offence committed but on the overall circumstances of the child.

The policy of treating minors as incapable of committing crimes does not necessarily reflect modern sensibilities. Thus, if the rationale of the excuse is that children below a certain age lack the capacity to form the mens rea of an offense, this may no longer be a sustainable argument. Indeed, given the different speeds at which people may develop both physically and intellectually, any form of explicit age limit may be arbitrary and irrational. Yet, the sense that children do not deserve to be exposed to criminal punishment in the same way as adults remains strong. Children have not had experience of life, nor do they have the same mental and intellectual capacities as adults. Hence, it might be considered unfair to treat young children in the same way as adults.

In Scotland the age of responsibility is twelve years, In England and Wales and Northern Ireland the age of responsibility is ten years and in the Netherlands and Canada, the age of responsibility is twelve years. Sweden, Finland, and Norway all set the age at fifteen years. In most of the US states, the age varies between states but is normally not lower than 7 years. In Belgium, it is eighteen years. As the treaty parties of the Rome Statute of the International Criminal Court could not agree on a minimum age for criminal responsibility, they chose to solve the question procedurally and excluded the jurisdiction of the Court for persons under 18 years.

Some states refuse to set a fixed minimum age, but leave discretion to prosecutors to argue or the judges to rule on whether the child or adolescent ("juvenile") defendant understood that what was being done was wrong. If the defendant did not understand the difference between right and wrong, it may not be considered appropriate to treat such a person as culpable. Alternatively, the lack of real fault in the offender can be recognized by rulings that dispense mitigated criminal sentences or address more practical matters of parental responsibility by adjusting the rights of parents to unsupervised custody, or by separate criminal proceedings against the parents for breach of their duties as parents.

Ages of criminal responsibility by country

The following are the minimum ages at which children may be charged with a criminal offence.

Country Age Reference Notes
 Mexico 6–12 Most states 11 or 12 years; age 11 for federal crimes.
 United States 6–12 [4] Age determined by each state; the minimum age is 6 (North Carolina),[4][5] however, only 15 states have set minimum ages,[4] which range from 6 to 12 years. States without statutory minimum ages rely on common law, which means that 7[6] is the minimum age in most states; for federal crimes the age has been set at 11.
 India 7
 Myanmar 7
 Nigeria 7
 Pakistan 7
 Singapore 7
 Sudan 7
 Tanzania 7
 Thailand 7
 Indonesia 8
 Kenya 8
 Bangladesh 9
 Ethiopia 9
 Iran 9–15 Age 9 for girls, 15 for boys
 Australia 10 [7] Age of criminal responsibility in Australia
Presumption of incapacity of committing crime: 14.[7]
England Wales England and Wales (UK) 10 [8][9] See youth justice in England and Wales
Northern Ireland (UK) 10 [10]
 Nepal 10
 South Africa 10 The Child Justice Act 75 of 2008 came into effect 1 April 2010. There is a rebuttable presumption that a child between the ages of 10 and 14 lacks criminal capacity.
 Switzerland 10
 Turkey 11
 Scotland (UK) 12
 Canada 12 [11]
 Ireland 12 [12]
 Israel 12
 Japan 12 [13]
 Morocco 12
 Netherlands 12
 South Korea 12
 Uganda 12
 Algeria 13
 France 13
 Austria 14
 China 14 Absolute minimum for acts that constitute the following crimes: homicide, wounding resulting in death, rape, robbery, arson, explosion, planting of toxic substances and trafficking in dangerous drugs. The minimum age for other crimes are 16. In Hong Kong, the minimum age is 10[14] and in Macau, 16
 Estonia 14
 Germany 14 [15]
 Hungary 14
 Italy 14
 New Zealand 14 Children in New Zealand can be charged with murder or manslaughter from age 10, several very serious offenses from the age 12, and all other offences from the age of 14. [16]
 Romania 14
 Russia 14 [17] 16 by default, 14 years specifically for crimes as listed in Section 20 of the Criminal code, like murder, rape, robbery, extortion, kidnapping, motor vehicle theft, terror attack, stealing restricted substances like explosives or narcotics, aggravated anti-social behaviour, vandalism, false report of a terror attack
 Slovenia 14
 Spain 14 [18]
 Ukraine 14
 Vietnam 14
 Czech Republic 15 [19]
 Denmark 14 [20] 14 as of July 1, 2010[citation needed]
 Egypt 15
 Finland 15 [21]
 Iceland 15
 Norway 15 [22]
 Philippines 15 The child in conflict with the law may be held liable if he or she is more than 15 years of age if he or she acted with discernment.
 Sweden 15
 Uzbekistan 15
 Portugal 16 Currently being studied the possibility of lowering the age of criminal responsibility to 14. From age 12 to 15 children are kept in juvenile correction centers.
 Poland 17 Official age of criminal responsibility; from age 12, children's actions are subject to juvenile legal proceedings.
 Argentina 18
 Belgium 18
 Brazil 18 [23] Official age of criminal responsibility; from age 12, children's actions are subject to juvenile legal proceedings.
 Colombia 18 Official age of criminal responsibility; from age 12, children's actions are subject to juvenile legal proceedings.
International Criminal Court 18 [24]
 Peru 18 Official age of criminal responsibility; from age 12, children's actions are subject to juvenile legal proceedings.
 DR Congo 18


  1. ^ In fact capacity was a necessary element of the state's case. If the state failed to offer sufficient evidence of capacity the infant was entitled to have the charges dismissed at the close of the state's evidence.
  2. ^ Essentially the defense was the same as the insanity defense with immaturity being the mental illness or mental defect.
  3. ^ Dalby JT. (1985). "Criminal liability in children". Canadian Journal of Criminology 27: 137–145. 
  4. ^ a b c "Children in the US Justice System". Amnesty International USA). 
  5. ^ Saving a generation of young people by Dr Don Brash, Justice, 2005
  6. ^ "Old enough to be a criminal?". UNICEF United Nations Children's Fund). 
  7. ^ a b Ages of criminal responsibility in Australian jurisdictions, Australian Governments official website
  8. ^ The Children and Young Persons Act 1933 (23 & 24 Geo.5 c.12), section 50; as amended by The Children and Young Persons Act 1963 (c.37), section 16(1) [1]
  9. ^ Young offenders section of the UK Governments official website
  10. ^ Report on the Draft Justice (NI) Bill of the Northern Ireland Assembly's official website
  11. ^ Criminal Code of Canada, s. 13; may received reduced sentencing under the Youth Criminal Justice Act until age 18.
  12. ^ Children and the criminal justice system in Ireland, Irish Government official website
  13. ^ Japanese Penal Code (Act No.45 of 1907), article 41 [2]
  14. ^ Section 3 of the Juvenile Offenders Ordinance 2003 (Chapter 226, Laws of Hong Kong)
  15. ^ StGB §19
  16. ^
  17. ^ [3]
  18. ^ Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores (Spanish)
  19. ^
  20. ^ Danish Penal Code §15 (Danish)
  21. ^ Penal Code 3:1 § (39/1889, as changed by 515/2003). Retrieved 10-31-2007.
  22. ^ Penal Code Almindelig borgerlig Straffelov (Straffeloven) § 46 (changed of law 12 Jun 1987 nr. 51). Retrieved 19/7 - 2007.
  23. ^ Federal Constitution (in Portuguese), Article 228. Retrieved 02-01-2011.
  24. ^ Rome Statute of the International Criminal Court Article 26.
  • Maher, Gerry. "Age and Criminal Responsibility. 2005 Vol 2. Ohio State Journal of Criminal Law. 493 [4]
  • CRC Country Reports (1992-1996); Juvenile Justice and Juvenile Delinquency in Central and Eastern Europe, 1995; United Nations, Implementation of UN Mandates on Juvenile Justice in ESCAP, 1994; Geert Cappelaere, Children's Rights Centre, University of Gent, Belgium.

March 2010 - High court ruling

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