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ADOPTING THE ‘REASONABLE CHILD’ THEORY IN REFERENCE TO MINIMUM

AGE OF CRIMINAL RESPONSIBILITY: INDIAN AND GLOBAL ANALYSIS

“The only effective way to prevent and reduce juvenile crime is to balance tough enforcement
measures with targeted, effective and interventions initiatives.”

-Janet Reno, Attorney General of the United States

ABSTRACT

Substantive criminal law continues to depend on adult standards and test of mens rea as
measuring of juvenile guilt. Based on the objectives of the juvenile system, notable advances in
adolescent development and research with regards to various judicial pronouncements on
juvenile culpability, the juvenile codes should be amended to deal with a reasonable child test for
measuring elements of mens rea in criminal culpability for a juvenile who relies on n adult
reasonable person. In Part II, the author has thrown light on the age of criminal responsibility in
the context of Juvenile justice system with respect to considerations of court of India and other
nations. Part III of the paper describes as to why a test of reasonable child aids the objectives of
the juvenile justice system. It also deals with alternatives as to how to change the adult
reasonable person standard to adopting reasonable child standard. Lastly, in Part IV, the paper
concludes that a standard test of reasonable child should be used as the primary proof of
understanding elements of mens rea for juveniles, and explicit legislative amendments and
changes must be done to prevailing criminal and juvenile codes.

 INTRODUCTION

Juvenile when charged as an accused of a criminal offense, places the responsibility on the
prosecutor and the defense to prove and disprove the element of mens rea in the alleged crime.
The lowest degree of criminal responsibility typically institutes the test of “reasonable person” as
the standard of evaluation for the prosecutor and the defense to use to see whether the child is to
be held criminally liable. Criminal law statutes make no special understandings for children who
are accused of negligence offenses, nor do they describe the characteristics which the accused
must or may be ascribed to the reasonable person against which the evidence of mental state of
the actor is to be compared.1 The drafters of the Criminal Statutes of India provide minimum
guidance in attributes that might not erode the objectivity of the reasonable person standard.
Instead, this responsibility has been left to the courts to determine whether the reasonable person
in the criminal sense takes on personal attributes of the defendant, and the results for juvenile
defendants have been mixed. Despite the recent irregularities drawn by courts, overall
substantive criminal law continues to depend on adult standards and test of mens rea as the
appropriate positioning of juvenile guilt.2 Without express advice to do otherwise, courts put
their judgment of a juvenile’s criminal liability in their own adult processes of decision making.3
The result of this process is that courts end up finding juveniles criminally responsible for not
acting like reasonable adults. This standard is highly ill-suited and irrelevant.4 Given what
science describes about the functioning of the brain of children and what the Supreme Court has
held in several high profile cases about juvenile liability, unfairly inclines youth into juvenile
system.5 Improper prosecution of children, including dependence on an inappropriate standard of
reasonable person, is dangerous to the individuals and society.6

 AGE OF JUVENILE CRIMINAL RESPONSIBILITY: CONSIDERATIONS OF


COURTS

A bunch of petitions7, have been considered together by the Supreme Court of India for taking in
view the commonality of the grounds and reliefs prayed in such petitions. One of the factors
which contemplated with these legislation in fixing the age of criminal responsibility at
eighteen years is based on the scientific data that shows that the brain continues to develop and
1
Michael Vitiello, Defining the Reasonable Person in the Criminal Law: Fighting the Lernaean Hydra, LEWIS &
CLARK LAW REVIEW 1436, October 2010, p. 2
2
Jenny E. Carroll, Brain Science and the Theory of Juvenile Mens Rea, 94 N.C. LAW REVIEW, 2016, p. 13.
3
LARRY J. SIEGEL, BRANDON C. WELSH, JUVENILE DELINQUENCY: THE CORE, CENGAGE
LEARNING, p. 25 (6 ED. 2016).
4
VED KUMAR, THE JUVENILE JUSTICE SYSTEM IN INDIA: FROM WELFARE TO RIGHTS, p. 121 (2D
ED. 2010).
5
FRANKLIN E. ZIMRINGAMERICAN JUVENILE JUSTICE, OXFORD UNIVERSITY PRESS, USA, p. 213 (1
ED. 2005)
6
The Centre on Juvenile and Criminal Justice, Diversion Programs: An Overview,
https://www.ncjrs.gov/html/ojjdp/9909-3/div.html, last visited December 11, 2017.
7
Saurabh Prakash vs. Union of India, Writ Petition (C) No.14 of 2013; Vinay K. Sharma vs. Union of India, Writ
Petition (C) No.90 of 2013, Krishna Deo Prasad Vs. Union of India, Writ Petition (C) No.85 of 2013; Kamal Kumar
Pandey & Sukumar Vs. Union of India, Writ Petition (C) No. 42 of 2013; Hema Sahu Vs. Union of India, Writ
Petition (C) 182 of 2013, Shilpa Arora Sharma vs. Union of India, (Crl.) No. 6 of 2013, Ms Shweta Kapoor vs.
Union of India, Writ Petition TC (C) No. 82 of 2013, Salil Bali vs. Union of India & Anr., Writ Petition (C) No.10
of 2013.
the growth of a child continues till the age of eighteen years and it is at that point that the child
can be held responsible for his acts.8

The recent famous Pradyuman Thakur Murder Case9 highlighted the nature of juvenile offences
and how they must be treated. The Juvenile Justice Board on 20th December 2017 held that
juveniles will be treated as an adult and will undergo a regular trial in a court. The Supreme
Court of the United States, since 2005, has issued a variety of considerations that have moved the
world of juvenile law.10 In Roper v. Simmons11, the Court held the death penalty unconstitutional
and disproportionate punishment in juvenile crimes. Age must be a factor in the inspection of the
seriousness of sentencing, reasoned the US Supreme Court, because it affects the gravity of the
punishment.

A juvenile passing their life in prison will be committed for a larger part of their life than an
adult and the rehabilitative possibility of the offender.12 When a juvenile is not discharged of
responsibility for his acts, his offences are “not as morally disgraceful as that of an adult.”13 The
Court now recognizes that children, as a group, are less mature, more reckless, highly influenced
by peers and, at times, incapable of removing themselves from horrific crimes.14

 TEST OF ‘REASONABLE CHILD’ IN CRIMINAL JUVENILE JUSTICE SYSTEM

It is a underlying principle of due process that for proving its case, the prosecution must prove
every element beyond a reasonable doubt of the crime.15 While the juvenile justice system has
embraced special features growing around adjudication processes, the norms for determining
guilt in the criminal system and juvenile system are similar.16

8
Salil Bali vs. Union of India & Anr., Writ Petition (C) No.10 of 2013, Date of Judgment July 17, 2013.
9
Barun Chandra Thakur vs. Union of India & Ors, 2017
10
Elizabeth Scott, Thomas Grisso, Marsha Levick & Laurence Steinberg, The Supreme Court and the
Transformation of Juvenile Sentencing , Sept. 30, 2015, http://modelsforchange.net/publications/index.html, last
viewed 13th December 2017.
11
Roper v. Simmons, 543 U.S. 551, 574 (2005)
12
Model Penal Code § 2.02(2)(d), 1985.
13
Graham v. Florida, 560 U.S. 48, 68 (2010)
14
STEVEN M. COX, JENNIFER M. ALLEN, ROBERT D. HANSER, JOHN J. CONRAD, JUVENILE JUSTICE:
A GUIDE TO THEORY, POLICY, AND PRACTICE, SAGE PUBLICATIONS, p. 98 (8 ED. 2013).
15
In re Winship, 397 U.S. 358, 362 (1970)
16
Terry A. Maroney, THE FALSE PROMISE OF ADOLESCENT BRAIN SCIENCE IN JUVENILE JUSTICE, 85
NOTRE DAME LAW REVIEW 89, 132-33 (2009).
Firstly, the decisions of various Courts on comparing children to mature reasonable adults to
measure their culpable responsibility would invalidate the rule of the juvenile justice system.
Secondly, the law typically depends on the circumstantial evidence as proving the intent.
According to the Courts and the scientific data, children are more impulsive and likely to be
influenced by outside pressures.17 Therefore, the actions of a child and any surrounding
situations simply cannot be understood, nor inferences may be drawn upon them in the similar
way that we make for adults.18 Thirdly, a declaration that a person has the necessary intent to
commit an offense shows that the person possesses the capacity for responsiveness, choice and
control of the act.19 Children have less authority and control over their surrounding environment,
and they lack the freedom to withdraw themselves from criminal circumstances.20 The
reasonable person theory should depict the age-relevant capacity for consciousness and control
of the accused. Lastly and fourthly, due process persuades that persons will not be held
criminally liable unless they had awareness of the illegality of their acts.21 To the contrary,
knowledge of social standards and expectations can sufficiently provide a person with answers
about what will and will not be an acceptable behavior. But a reasonable adult will not possess
the same social consciousness as a reasonable child. Children lack strong views and perspective
to identify and avoid circumstances that could be harmful and detrimental to them,22 which again
points to the need for the reasonable child reference.

 CONCLUSION

The shift to a test of reasonable child is fundamental to society’s continual commitment to treat
juveniles differently and society’s conjectures for the role of mens rea in the definitions of
crimes. The society tends to handle the average juvenile as less guilty than the average adult.23
A clear reference to a reasonable child in the criminal statutes would be a step towards retrieving

17
WILLIAM BUSH, WHO GETS A CHILDHOOD? RACE AND JUVENILE JUSTICE IN TWENTIETH
CENTURY TEXAS, UNIVERSITY OF GEORGIA PRESS, p. 128 (2010)
18
In re William G., 963 P.2d 287, 293
19
Elizabeth Nevins-Saunders, NOT GUILTY AS CHARGED: THE MYTH OF MENS REA FOR DEFENDANTS
WITH MENTAL RETARDATION, 45 U.C. DAVIS. LAW REVIEW 1419, 2012
20
Laurence Steinberg & Elizabeth S. Scott, LESS GUILTY BY REASON OF ADOLESCENCE:
DEVELOPMENTAL IMMATURITY, DIMINISHED RESPONSIBILITY, AND THE JUVENILE DEATH
PENALTY, 2003.
21
NANCY E. DOWD, JUSTICE FOR KIDS: KEEPING KIDS OUT OF THE JUVENILE JUSTICE SYSTEM, P.
97 (2011).
22
Bellotti v. Baird, 443 U.S. 622, 635, 1979
23
Graham v. Florida, 560 U.S. 48, 117, 2010
some of the ground lost for children. This reference is also required to restore the role of mens
rea. Dependence on an adult mens rea standard for juveniles, with regards to overwhelming
scientific evidence carrying the unfairness of this comparison, erodes mens rea’s value. To avoid
the legal gap between a competent determination and a juvenile’s inability to reach a standard of
reasonable adult for forming criminal intent is to pick ease of prosecution over fairness
foundation. With a reasonable child standard, children accused of crimes would no longer have
to depend on the common sense of judges and officers about the regularity of delinquent nature.
This reasonable child standard will authorize defendants to provide the best and focus on most
appropriate advocacy for their clients. The defense counsel will be empowered to present
evidence to show the reasonable child and how they would act in the situations. But, fact finders
need no teaching in science to consider a child’s age, and may instead depend on a “wide variety
of community experience upon which it is feasible to decide what is to be expected of children.”

The states' juvenile statutes and the Penal Codes should be amended to specifically refer to a test
of “reasonable child” standard for any element of mens rea that relies on a reasonable person as
the measure for criminal responsibility. This statutory change is important to achieve
consistency between the workings of the juvenile justice system and the Courts decisions on
modern criminal liability of juveniles. It is time for a new aspect of mens rea to be adopted to
analyze juvenile’s behavior that is uniform with what we understand from our experience, with
the latest research in science and with the contemporary jurisprudence of the Supreme Court in
the land.
BIBLIOGRAPHY

1. BOOKS:
 Franklin E. Zimring, American Juvenile Justice, Oxford University Press, Usa, (1 Ed.
2005)
 Larry J. Siegel, Brandon C. Welsh, Juvenile Delinquency: The Core, Cengage Learning,
(6 Ed. 2016)
 Nancy E. Dowd, Justice for Kids: Keeping Kids Out Of The Juvenile Justice System,
(2011)
 Steven M. Cox, Jennifer M. Allen, Robert D. Hanser, John J. Conrad, Juvenile Justice: A
Guide To Theory, Policy, And Practice, Sage Publications, (8 Ed. 2013)
 Ved Kumar, The Juvenile Justice System In India: From Welfare To Rights, (2d Ed.
2010)
 William Bush, Who Gets A Childhood? Race And Juvenile Justice In Twentieth Century
Texas, University Of Georgia Press, (2010)

2. CASES:
 Barun Chandra Thakur vs. Union of India & Ors, 2017
 Bellotti vs. Baird, 443 U.S. 622, 635, 1979
 Graham v. Florida, 560 U.S. 48, 68 (2010)
 Hema Sahu vs. Union of India, Writ Petition (C) 182 of 2013
 In re William G., 963 P.2d 287, 293
 In re Winship, 397 U.S. 358, 362 (1970)
 Kamal Kumar Pandey & Sukumar vs. Union of India, Writ Petition (C) No. 42 of 2013
 Krishna Deo Prasad vs. Union of India, Writ Petition (C) No.85 of 2013
 Ms Shweta Kapoor vs. Union of India, Writ Petition TC (C) No. 82 of 2013
 Roper vs. Simmons, 543 U.S. 551, 574 (2005)
 Salil Bali vs. Union of India & Anr., Writ Petition (C) No.10 of 2013
 Saurabh Prakash vs. Union of India, Writ Petition (C) No.14 of 2013
 Shilpa Arora Sharma vs. Union of India, (Crl.) No. 6 of 2013
 Vinay K. Sharma vs. Union of India, Writ Petition (C) No.90 of 2013

3. JOURNAL ARTICLES:
 Elizabeth Nevins-Saunders, Not Guilty As Charged: The Myth Of Mens Rea For
Defendants With Mental Retardation, 45 U.C. Davis. Law Review 1419, 2012
 Jenny E. Carroll, Brain Science And The Theory Of Juvenile Mens Rea, 94 N.C. Law
Review, 2016
 Laurence Steinberg & Elizabeth S. Scott, Less Guilty By Reason Of Adolescence:
Developmental Immaturity, Diminished Responsibility, and The Juvenile Death Penalty,
2003
 Michael Vitiello, Defining the Reasonable Person In The Criminal Law: Fighting The
Lernaean Hydra, Lewis & Clark Law Review 1436, October 2010
 Terry A. Maroney, The False Promise Of Adolescent Brain Science In Juvenile Justice,
85 Notre Dame Law Review 89, 132-33 (2009)

4. LINKS:
 Elizabeth Scott, Thomas Grisso, Marsha Levick & Laurence Steinberg, The Supreme
Court and the Transformation of Juvenile Sentencing , Sept. 30, 2015,
http://modelsforchange.net/publications/index.html,
 The Centre on Juvenile and Criminal Justice, Diversion Programs: An Overview,
https://www.ncjrs.gov/html/ojjdp/9909-3/div.html

5. STATUTES:
 Model Penal Code, 1985
 Indian Penal Code, 1860