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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