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Katherine Covell

Considering the age of criminal responsibility

Katherine CovellOn August 21, 2013, 6–year-old Lee Bonneau was beaten to death by another child in the First Nation community of Kahkewistahaw in Saskatchewan, Canada. Lee was living in a foster home at the time of his death. He had been in the home for only 3 weeks and was playing alone outside a Bingo Hall.

The child responsible for Lee’s death is described as a troubled boy, either aged 10 or 11 years. He was well-known to police and social services, but too young to be charged with a crime. He is also known to be a boy with very adverse early experiences and a history of involvement in child protection services. 

When the media reported this tragic event, predictably, the public, and even some legal experts, responded with calls to lower the age of criminal responsibility. The age of criminal responsibility in Canada is 12. Children as young as 10, critics said, should be arrested, charged, and tried as young offenders when they commit a serious crime. We cannot have young children committing such heinous crimes and “getting away with it.”

Public demands for lowering the age of criminal responsibility to 10 years or even lower typically follow the reporting of such cases. But the calls are misguided and the focus misplaced.

Criminal responsibility assumes that the individual is able to fully control and understand his or her actions. To suggest that this can be the case even at age 12 is untenable – any earlier is preposterous. In fact, a growing body of evidence from developmental neuroscience and psychology tells us that the age of criminal responsibility should be significantly higher. The age of 15, as in Sweden and other Nordic countries, is more reasonable.

The child’s brain, although developing most rapidly in the early years, undergoes substantial development through adolescence into early adulthood. The prefrontal cortex – the part of the brain that allows for behavioral control, planning, and risk-assessment – develops later than the area associated with sensation seeking and reward. This pattern of neural development means that adolescents are vulnerable to being impulsive and guided by potential rewards rather than always being rational decision-makers.

By late adolescence or early adulthood there is improved ability for impulse control, interpersonal and social understanding, emotion regulation, and rational decision-making. But the early-teen and the late-teen brain are very different. As psychologist Lawrence Steinberg’s argued, teenaged children must be considered to be ‘less guilty by reason of adolescence’; a stance that was influential in efforts to have the US Supreme Court end the use of the death penalty for juveniles.

The teenage brain is also highly susceptible to environmental influences. When we treat young teens, or pre-teens, as criminals and institutionalize or incarcerate them with their deviant peers, we exacerbate any problems they have. We also increase the likelihood of continued criminality.

A further consideration in determining the appropriate age for criminal responsibility – particularly for young children who commit more serious crimes such as the beating death of Lee Bonneau is the child’s history of rearing. We know little about the early life of the child who killed Lee; his identity is protected because of his age. But we do have extensive knowledge on the characteristic backgrounds of such children.

Children who engage in serious antisocial behavior and violence most often have a history of family disorganization, parental neglect or rejection, exposure to violence in the home and or community, economic insecurity, physical and sexual abuse. This too affects the development of the brain. When children receive inappropriate or insufficient attention and affection in infancy and early childhood, their brains become wired in maladaptive ways. They show abnormal stress responses, poor impulse control, and impulsivity, and have difficulty appreciating the humanness of others.

Young children who do come into conflict with the law, then, should be treated as victims, whether of neglect, violence, or the violation of their fundamental human rights. Early identification of children at risk, comprehensive and timely interventions, and universal programs of family supports, mental health services, and parent education would do much to lessen the adversity in children’s lives and prevent their criminal involvement.

Older children who come into conflict with the law are best responded to with the many diversionary, restorative justice, and educational programs that have been demonstrated effective in helping them maintain a prosocial developmental pathway.

Punitive approaches and a lowered age of criminal responsibility are not the answer to youth violence. A focus on prevention and rehabilitation would be a much better legacy for Lee Bonneau.

 

Katherine Covell, Child Rights Expert in Residence, Society for Children and Youth of British Columbia

 

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