Doli Incapax: Why Children Deserve its Protection
AbstractThis article examines whether a young child in Australia should be considered incapable of committing a crime. The presumption of doli incapax, that a child cannot be convicted of a crime, is not a defence but something the prosecution must overcome beyond reasonable doubt in every case. For children under ten years there is little debate, but for children between ten and under fourteen years there is a rebuttable presumption. The author examines how the rule works and its background in legislation and English and Australian caselaw. He then considers the contemporary arguments for reforming the presumption, including that children are better educated now, that the criminal law is no longer as harsh as it once was, and that the rule is unfair and a hindrance to prosecution because sometimes the evidence is not available to rebut the presumption. The author concludes with a strong argument to maintain the rebuttable presumption. He refers to principles of international law, explains that while the rule may slow down prosecutions it does not stop them if there is proof of a guilty mind, and points out that the rule acknowledges that children develop understanding of right and wrong at different rates. |