One may say that the United States of America is used to gun violence even in schools. But a new instance of gun violence occurred in a Virginia Elementary School which shocked everyone.
Over a month ago, a six-year-old boy carried a gun to school in his back-pack, had an altercation with his teacher and shot her. The teacher was hospitalised but the injury was not fatal.
Last week, a 13-year-old girl was stabbed by two classmates aged 12 and 13 years in Germany. The offenders have confessed to have conducted this act apparently over a fight over a boy in their class.
In any other case, the response would be the normal one: arrest and prosecute the offender. But this time, the age of the perpetrator of the violence was just chilling in inverse proportion to the seriousness of the action he had committed. Many were surprised by the bewilderment with which the law enforcement officials approached this issue.
This is because the law of the state of Virginia, like the laws of most countries in the world, prohibit the trial of a child of that age for a crime. Under Virginia law, a child who does something that would be a crime is tried in a juvenile court. But even under Virginia’s law, a child younger than 11 years may not be convicted and sentenced to a prison sentence. In this scenario, it appears that no criminal consequences can be visited upon the child, even for the heinous act of shooting a teacher.
The same is the case with the two girls who murdered their classmate in Germany: Despite confessing to the crime, the law in Germany states that children under the age of 14 cannot be prosecuted for crimes. This means that the girls who killed their classmate will not face the full force of law on account of their age.
A similar occurrence was in February, 2000 when another six-year-old boy fatally shot a girl in his class after uttering the words “I don’t like you”. Most legal persons acknowledged the reality that the child cannot be tried for any criminal offence. But his parents could be held responsible. This was because the gun belonged to his mother and it appears that it was kept carelessly in the home under circumstances that made it possible for the child to take it to school.
The reason for this is simply that under criminal law, it is taken that a child of tender years is not deemed capable of conceiving the thought of committing a criminal offence and acting upon it in the same way an adult would.
But the reality is that children have and do commit heinous acts that shock many people the world over. One such case was in the United Kingdom. About 30 years ago, two-year-old James Bulger had accompanied his mother to a shopping centre. He lost his mother and was abducted by two boys, each aged 11 years old. They tortured and murdered James Bulger in a way that was described even by the Judge who heard the case as “unparalleled evil and barbarity”. In 1993 the two were convicted of the murder and sentenced to be detained at her Majesty’s pleasure until the Home Secretary determined that they would no longer be a danger to the community.
Despite the heinous nature of the crimes, the two were still treated as children, tried and sentenced fairly moderately as opposed to adults who may have had long prison sentences if not capital punishment altogether for the same barbarity. This was confusing to many especially in view of the fact that the victim was himself a much younger child.
But this has not always been the case. Historically, child offenders were subjected to the same processes as adults in the criminal justice system. In Australia, for example, children were even subjected to the same penal sanctions as adults, including capital punishment.
In India, even if children are perpetrators, whether solely or even in partnership with adults, of all kinds of offences including robbery, rape and murder, the law is clear: however, egregious their involvement in law-breaking, children cannot be treated in the same way as adults in criminal proceedings.
This explains why in most jurisdictions, the age of the accused person is one of the first issues a court hearing a criminal case must ascertain. This is to ensure that if the accused is a child, then he or she is then taken for trial at a specialised court known as juvenile court.
The differences between children’s and adults’ trials give its own challenges to courts where people who are otherwise adults may claim to be children in the hope of avoiding the penalties that would otherwise accrue for a convicted adult. The courts are clear about this and in a case in India, a person who had been involved in a gang rape and murder of a young girl claimed that he was a minor. He was tried separately from his adult co-perpetrators.
But the court ordered a medical examination to ascertain his age and said that it had misgivings about his claim to being a minor. The reason for this was that if the conduct of an accused person and manner of the offence shows a level of foresight and planning that a child is normally not capable of, then the court will not consider him to be an innocent lawbreaker and will treat him as an adult and try him accordingly.
This is the case in South Africa too where the criminal justice law states that a child below 10 years is not to be considered to have the capacity to plan and execute a crime. Therefore, a child below that age may not be arrested or prosecuted for a criminal act. Instead, if the child commits an act that is heinous, the reference will be made to the Department of Social Development for correction and guidance by means other than trial.
However, children above the age of 14 years are to be treated as being able to distinguish right from wrong and may therefore be arrested and prosecuted for committing crimes. Even then, if such a child is convicted, he may not be sentenced to more than 25 years in prison.
In Egypt, the children’s legislation states that a child under the age of 12 can be held “criminally responsible” as defined in national legislation, but the juvenile court is empowered to order children to be “reproached”; delivered to parents, guardians or custodians, placed in a specialised hospital; or placed in a social care institution from the age of seven if the child has committed a felony or misdemeanour.
In Kenya, the view about children and capacity to commit crime is similar to that of the other countries. The Penal Code is clear that a child below the age of eight years may not be criminally liable for any action or inaction even if that were otherwise an offence. The law states that any child under 12 years may also not be considered criminally liable unless it can be proved that the child had the capacity to know that he should not have done what he did.
More controversially is that with regard to the offence of rape, the Penal Code has a presumption that a male under 12 years is incapable of carnal knowledge and therefore may not be held liable for or tried for any sexual offence such as rape or defilement.
All of these examples show a reasonable attempt at acknowledging the fact that children cannot be deemed to have the same capacity in their minds to plan and execute crimes in a manner that would lead to wrong-doing being attributed to them as crimes.
The approach, and rightly so, is that even as wrong-doers, they need more care and protection rather than punishment. But the reality is that sometimes, as in the case of James Bulger, children’s actions do defy this thinking by committing acts that leave even adults shocked.
Mr Owino is Head of Legal at Nation Media Group PLC
