The Sydney Morning Herald Children of 12 may be tried as adults Date: 11/01/00 By LINDA DOHERTY The State Government is considering lowering the age where children are presumed to be innocent of crimes - from 14 to 12 - because of views that children of the 21st century are more sophisticated than their predecessors. The Attorney-General, Mr Shaw, yesterday released a discussion paper reviewing the criminal responsibility of children, which calls for scientific evidence to support the proposition "that today's children are more able to distinguish right from wrong than their earlier counterparts". The review was welcomed by the Opposition but criticised by legal experts, who warned that it would scapegoat children because there was no evidence today's youngsters understood the consequences of their actions any more than those of a generation ago. The most radical proposition from the Attorney-General's criminal law review division is to lower t he age at which doli incapax applies, from 14 to 12. The age of criminal responsibility - the minimum age at which children can be charged - is 10 in mo st Australian jurisdictions. But from 10 to 14, doli incapax is the common-law presumption that children are incapable of wrongdoing. This means the prosecution must prove beyond reasonable doubt that the child knew the criminal act was wrong, not simply naughty or mischievous. Mr Shaw said the Government would act cautiously on the sensitive issue, but he highlighted comment s made last year by the senior Children's Court magistrate, Mr Stephen Scarlett. "The children's magistrate, Mr Scarlett, has suggested that maybe the limit of 14 is too high, so i t may be that on the basis of material about the increasing sophistication of young people in our community that there's a case for fine-t uning this law, for lowering the age at which there's a presumption against criminal responsibility," Mr Shaw said. Mr Scarlett said last April: "It would seem obvious that children in the final stages of the 20th c entury are better educated and more sophisticated than their counterparts 200 years ago. "A child of 12 in Australia has access to television, radio and the Internet, and has a far greater understanding of the world than a 12-year-old in rural Britain in 1769." Doli incapax received widespread publicity in NSW last month when a 12-year-old boy was found not g uilty of the manslaughter of six-year-old Corey Davis. The president of the NSW Law Society, Mr John North, said he supported public debate but the "lack of maturity and development in children" should be taken into account "right up to the age of 14". "Just because they are bombarded with electronic information [and] the Internet ... doesn't mean th ey have any greater intellectual development," he said. The director of the National Children's and Youth Law Centre, Mr Louis Schetzer, said the proposal would "further scapegoat" children by a Government whose policies were having a "particularly harsh effect" on children. In 1997-98, 1,117 criminal matters involving children aged from 10 to 14 were finalised in NSW cour ts. The Opposition Leader, Mrs Chikarovski, "applauded" the Government's investigation of whether faster rates of maturation were having an impact on children's legal responsibilities. "I'm a mother of teenagers and I've got to tell you I think they're growing up faster," she said. This material is subject to copyright and any unauthorised use, copying or mirroring is prohibited. ***************************** The Australian Experts oppose lowering crime age By JOHN ELLICOTT and BERNARD LANE 12jan00 "SOME kids are South Park sharp, but others just aren't." That was one of the reactions yesterday to the attempt to review the legal concession that presumes children do not knowingly commit crimes until they are aged 14 or more. The NSW Government has called for empirical evidence it believes will show children are growing up faster than ever, and which could support a law change later this year. But the suggestion has caused a row in legal and medical circles, with many critics saying it is false to suggest children are growing up any faster than they were 100 years ago. Edgar Freed, a psychiatrist who sits on the board of the NSW Australian Medical Association, said even though modern children could be acquiring more knowledge or facts through the Internet and other sources, it did not mean they were gaining greater moral judgment. "Children don't develop an adult sense of maturity merely through the acquisition of knowledge," Dr Freed said. "To determine what is right or wrong takes time and experience through a number of influences, including at home or church groups. "One can't get that from the Internet". The NSW Government has issued a discussion paper looking at whether the law, called doli incapax (Latin for incapable of wrong), should be altered to cover only charges relating to manslaughter or murder, or be reduced from 14 to cover children only between the ages of 10 and 12. The law means there is a rebuttable presumption in criminal cases against children that they did not know their actions were wrong when they committed a crime. The onus is placed on the prosecution to show there was intent. Normally this means prosecutors must get school and psychiatric reports to prove a child had an ability to determine right from wrong. Michael Antrum, the chair of the legal issues committee of the NSW Law Society, said a law that required a prosecutor to make an extra effort was a "worthy and cautious step". "Reactionaries are always suggesting children should be dealt with toughly whenever there is a major issue around, but I am very suspicious of that view, " he said. "There is a great case that children aren't as mature as they used to be say 200 years ago, when they were sent down mines, were often the breadwinners and faced incredible hardships." NSW Law Society president John North said society would have to be reassured with hard empirical evidence that children were growing up quicker today before they would support a law change. Even if the proposed change had little practical effect on children's trials, it had symbolic importance, according to criminologist Chris Cunneen. "The broader question is whether we want to move to a criminal justice system that treats children more like adults," Associate Professor Cunneen, director of Sydney University's Institute of Criminology, said yesterday. He did not know of any evidence that today's children underwent more rapid moral, social or cognitive development as a result of education and media exposure. *************************** Letters to the editor at the SMH Letters: Lowering age limit not best solution Date: 13/01/00 I refer to the recent discussion relating to NSW Government plans to lower the criminal age (Herald, January 11). If the age of criminal responsibility is to be lowered, then the age of civic responsibility should likewise be lowered. The NSW Attorney-General points to recent medical and sociological research which indicates that the doli incapax rule no longer reflects the capacities and abilities of children over 10 years. By this reasoning, children should be granted the right to vote, the right to wage parity with adults, the right to start work at an earlier age and the right to consent to sexual relations. This is not an attempt to clarify the legal definition of the child: how could it be when a child could be held capable of committing a criminal act, yet deemed incapable of actively participating in the polity? - Darren Smith, Georges Hall. Like the Opposition Leader, Kerry Chikarovski, I am a mother. But I don't believe children are "growing up faster" than ever (Herald, January 11). I agree with the president of the NSW Law Society, John North, that children today may have greater access to superficial knowledge, and a wider range of fantasies to convince them (and others, it seems) that they are intellectually mature. But there is no scientific evidence to suggest the biological development of the contemporary brain and its ability to reason is an improvement over the brain of a body born in 1948. Frankly, I don't understand why children under 16 are in court at all. Don't the Scandinavians have better ways of dealing with children as victims of crime and children as perpetrators of crime? Whether victims or perpetrators, children don't need harassment by bullies in suits who claim to represent justice. They don't need the solemn naivety of the jury. Children under 16 should never go before an adversarial court. They should appear before some sort of tribunal consisting of psychologists, social workers and magistrates. And our community deserves a higher standard of youth refuge centre. - Carolyn van Langenberg, Glebe. The story "Children of 12 may be tried as adults" refers to the sophistication of children today, due to the influence of television, the Internet and radio. It's possibly not sophistication, but desensitisation to violence - so graphically depicted in films and video games - that encourages disturbed children to commit horrific acts. Our society has a lot to answer for when we feed violence as "entertainment" to our children, then think the solution to child violence lies in lowering the age of criminal responsibility. - Wendy Crew, Lane Cove. I do wish the NSW Government would think first before announcing one of its law-and-order knee jerks, because the ACT "toytown" Government always copies! The reality is that doli incapax (the rebuttable presumption that a child cannot form a criminal intention between the ages of 10 and 14 years) is just not an issue. It is similar to the "intoxication defence" in many ways as it is rarely relied upon by the defence and is even more rarely successful, and yet there was a great show by this Government in abolishing it. Although the onus is on the prosecution to disprove the presumption, the reality is that the defence lawyer collects evidence, where it is available, to show the court that a particular child in this age group was not capable of forming the criminal intention because of learning or intellectual disabilities or for some other valid reason. I think I have done it once or twice in the past five years, including one year as the Legal Aid Children's Court solicitor - so why introduce legislation to remove judicial discretion when it is appropriately applied in a very small number of cases? Give politicians one high-profile case and they really do go silly. - Jennifer Saunders, President, ACT Council for Civil Liberties, Canberra. ------------------------------------------------------- RecOzNet2 has a page @ http://www.green.net.au/recoznet2 and is archived at http://www.mail-archive.com/ To unsubscribe from this list, mail [EMAIL PROTECTED], and in the body of the message, include the words: unsubscribe announce or click here mailto:[EMAIL PROTECTED]?Body=unsubscribe%20announce This posting is provided to the individual members of this group without permission from the copyright owner for purposes of criticism, comment, scholarship and research under the "fair use" provisions of the Federal copyright laws and it may not be distributed further without permission of the copyright owner, except for "fair use." RecOzNet2 is archived for members @ http://www.mail-archive.com/recoznet2%40paradigm4.com.au/
