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2 Ohio St. J. Crim. L. 493 (2004-2005)
Age and Criminal Responsibility

handle is hein.journals/osjcl2 and id is 499 raw text is: Age and Criminal Responsibility Gerry Maher* Age is a relatively unexplored topic in the theoretical literature on criminal responsibility. The first part of this paper examines a project on the age of criminal responsibility conducted by the Scottish Law Commission, the official law reform body for the law in Scotland. A key finding of that project was that legal systems tend to use two distinct senses of age of criminal responsibility. One concerns the capacity of a child to commit a crime; the other relates to exemption of a child from the full or adult system of prosecution and punishment. The Commission recommended that for Scots law, emphasis should be given to the age of criminal responsibility in this second sense. The second part of the paper explores issues about the age of criminal responsibility at a more theoretical level. It argues that the more coherent theoretical accounts of the concept are at the level of criminal process rather than as capacity or attribution. This is certainly true of cases where age prevents a child from participating in a criminal trial. Furthermore, there are difficulties in conceptualizing the age of criminal responsibility simply in terms of the capacity or incapacity of a child to act with the appropriate mens rea for an offense. Problems also attend theories that consider children as not being the sort of persons to whom the norms of the criminal justice system are addressed. These theories tend to use an analogy between children and the mentally disordered, but this analogy is inaccurate. Instead, it is argued, children below the age of criminal responsibility have, at the least, a degree of responsibility for their criminal actings. Not holding children as criminally responsible is to some extent contrary to fact and is concerned with ensuring that children who commit crimes are exposed to the special social goals of juvenile justice systems. Does the fact that someone is a certain age affect his or her responsibility for criminal conduct and liability to punishment? If we look at the provisions of most legal systems, then the clear answer is Yes, for the vast majority of systems have rules on the age of criminal responsibility. I will examine some of these rules later, but what is important to note at this stage is that there is a considerable variety of types of such rules. There is a second question about age and criminal responsibility: Does the idea of age give rise to any interesting philosophical issues relating to the concept of criminal responsibility? If we consult the theoretical literature on criminal responsibility, it would appear that age is a topic that involves, at the most, only . Queen's Counsel (Scotland); Professor of Criminal Law, University of Edinburgh; Scottish Law Commissioner.

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