A proposal to let Philippine criminal courts try nine-year-olds has drawn sharp criticism. But in 35 American states, children of any age can be convicted and sentenced
COMMON law has long held that committing a crime requires both a prohibited act and a “mens rea”, or “guilty mind”—the criminal knowing that the act was wrong. There is no global consensus regarding the youngest age at which a child can be deemed to have such intent, and thus can be tried and convicted of a criminal offence. Ten years ago the United Nations Committee on the Rights of the Child recommended an “absolute minimum” age of 12 for criminal responsibility, and urged countries “to continue to increase it to a higher age level”. The Philippines appears poised to move in the opposite direction: lawmakers there have proposed reducing the cut-off from 15 years old to nine. The bill has prompted sharp criticism both at home and abroad, and legislators are still arguing over its text.
Not long ago the Philippines earned a reputation for a relatively progressive stance on this issue. It introduced its current minimum age of criminal responsibility (MACR) in 2006, making it one of just 19 countries whose MACR is 15 or older. However, Rodrigo Duterte, the president, has adopted a harsh “tough-on-crime” agenda. The bill’s supporters say it would stop adult criminals from recruiting children under the age of criminal responsibility for drug-trafficking. Human-rights advocates counter that there is no evidence that this would reduce crime. Instead, says Leo Ratledge of Child Rights International Network, a British charity, it would punish victims of exploitation rather than those who exploit them.
The other members of the MACR-above-14 club are an incongruous bunch. Predictably, they include places like Norway and Sweden, which take a generally liberal approach to criminal justice. However, the top of the table is occupied by less developed countries that happen to have revised their juvenile-justice laws in recent years: in Timor-Leste and Mozambique, the MACR is now 16. Although most European states sit comfortably above the UN recommendation, there are notable exceptions. Scotland can hand out criminal records to eight-year-olds, though legislation is being mooted that will raise the minimum age limit to 12. In the rest of Britain, ten-year-olds can be tried for a crime. This British colonial legacy is reflected in the relatively low MACRs seen in South Africa, Australia and New Zealand. Similarly, Nigeria, India, Pakistan and Bangladesh are among the 21 countries that set a MACR of seven, the lowest national age globally.
In some cases the law is not clear-cut. The MACR in Comoros is based on puberty. It can differ by sex (as in Iran) or type of offence (Malaysia), while Poland and France entrust the issue to judges’ discretion. Nonetheless, even a vague minimum of “puberty” provides more protection than simply having no MACR at all. Just a handful of countries have no national MACR. The most striking is the United States. Although America sets a threshold of 11 years old for federal offences, the overwhelming share of crimes are policed at the state level. And 35 out of the 50 states have not set a MACR, putting them in a club with Cuba, Malaysia (exclusively for terrorism) and Sudan (for drug offences).