HOMICIDE DEFENSES: Incapacity, Immaturity and Infancy by Adeyemi Oshunrinade


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As part of the consideration for fair justice, it is essential for the judicial system to recognize criminal incapacity based on immaturity and infancy. For the justice system to serve its purpose, there must be criteria for finding one culpable and liable for a criminal act; but to find a child criminally culpable for a crime requiring a mental state which normally exists at maturity, signifies a delivery of justice too harsh. Irrespective of the harm caused by one of tender age, there must be other ways for the administration of justice besides that established for criminal prosecution.

At common law, attention was focused on two ages; a child under the age of seven is thought to have no criminal capacity. It is presumed that one of such age is incapable of a criminal act; there is an irrebuttable presumption of incapacity on the part of one so young. Also, one who has reached the age of fourteen has criminal capacity unless incapacity is proved based on other legally applicable grounds such as insanity. In essence, this means the physical age and not mental age.

Between the ages of seven and fourteen, there is a rebuttable presumption of criminal incapacity, a child between these ages may be found liable only when it is proven and established that there is a clear and real appreciation of the wrongfulness of the act or conduct. The common law of England in some instances, privilege one under the age of twenty one as to minor misdemeanors so as to escape fine, imprisonment and other serious penalties; but where a notorious crime is committed such as battery, aggravated assault, and the like which infants when full grown are as liable as others to commit; for such crimes, one above the age of fourteen, would be found equally liable to suffer as a person of age twenty-one.

In some cases, the law will look at the consciousness of the guilt and discretion to determine between good and evil, in deciding whether the defense of infancy or incapacity is proper in the case. However, when it comes to serious crimes, the law has been careful in choosing the degrees of age to be exculpated or subject to criminal sanction. For example, homicide by a boy of ten was held not to be murder on the ground that one of his age, was not shown to possess the mens rea needed for murder. (See State in Interest of S.H., 61 N.J. 108, 293 A.2d. 181 (1972))

On the other hand, a 13-year-old boy was convicted of murder in the second degree; and in affirming the conviction, the court reiterated that “Poole hid the murder weapon as well as other pieces of evidence; he fabricated stories in attempting to establish an alibi and claimed the shooting had been accidental. He testified that he knew killing people was wrong, and there was ample evidence that Poole knew the wrongfulness of his act.” (See Poole v. State, 97 Nev. 175, 625P.2d 1163, 1165 (1981))

In such cases however, the evidence of malice required to provide age must be strong and clear beyond reasonable doubt, for criminal liability to stand or be recognized. The age of complete criminal incapacity, varies according to statute and the applicable jurisdiction in the United States. Some statutes have incorporated the common law rule that children under the age of fourteen are incapable of a crime, in the absence of clear proof that at the time of the crime, they knew its wrongfulness.Others have abolished the common law rule as to the capacity of a 14-year-old, leaving the presumption of incapacity to apply only to children under the age of seven. Except for cases where the age for capacity is raised by statute, it has always been possible in legal theory to rebut the presumption of incapacity of a 7-year-old though, the cases are rare.

In rape cases for example, common law does not allow one under the age of fourteen, to be found capable of such crime; a boy under the age of fourteen is presumed to lack the capacity for the crime of rape. ‘Where two indictments were found against a 13-year-old boy, one of rape and the other of murder; the prosecution of the rape case would be stopped once the age of incapacity is established however, the murder case would proceed with an instruction on the prima facie presumption of incapacity of a child under the age of fourteen to commit such crime’. (See Rollin M. Perkins, Criminal Law and Procedure; (1984) p. 565)

As earlier indicated, the age of capacity has been established according to statute in different jurisdictions of the United States, based on the principle that no one shall be deprived of life by reason of an act done before reaching a specified age, to be determined by the law of each jurisdiction. This responsibility, has been assumed by the Juvenile Delinquency Statutes of each jurisdiction according to state; and in the recent years, there has been changes to its procedure for example, some statutes provide that what is considered a crime, if committed by an adult of legal age, is not a crime but a misbehavior known as “Juvenile Delinquency” if perpetrated by a “Juvenile.”

There are many factors to be considered in finding culpability for criminal offenses, most especially in homicide cases; the age of one charged may stand as a defense, based on incapacity and lack of required mental state even though, he may have committed the most outrageous crime such as taking a human life. However, the available statute and the circumstances of each case will determine the direction of justice.

Dr. Adeyemi Oshunrinade [E.JD] is an expert in general law, foreign relations and the United Nations; he is the author of ‘Murder of Diplomacy (2010), ‘Wills Law and Contest’ (2011), and ‘Constitutional Law-First Amendment’ (2012). ‘Homicide Defenses’ is an excerpt from his next publication ‘Criminal Law-Homicide.’ Follow on Twitter @san0670

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Categories: Criminal Law

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2 replies

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