Cognitive And Moral Aspects Of The Criminal Responsibility Age

“At some age the stage of a child’s moral and intellectual development would be reached, such that at and above that age the child could be treated as a responsible agent (for purposes of the criminal law), and below that age the child could not be so treated.” (G Maher, 2005)

A recent account by the Australian Broadcasting Commission’s (ABC) 4 Corners program of young children in detention has reignited debate both domestically and internationally around the seemingly arbitrary minimum age of criminal responsibility (MACR). The following report sets out to critically review the empirical evidence regarding various factors that contribute to adolescent offending and if this evidence indicates a more suitable method of assigning a MACR in Australia. It is my position that the MACR in Australia, which currently stands at ten years of age, is misguided and that the minimum age should be increased to 14 years. To support this view, I will argue that society should be aiming to reflect what many academics believe to be substantial environmental (Kambam and Thompson, 2009. Somerville, Jones and Casey, 2010. Duell, et al. 2016. Steinberg, 2008), biological (Kambam and Thompson, 2009. Steinberg, 2008. Shulman, et al., 2016.), psychological (Kambam and Thompson, 2009. Mathews, 2000. Reniers, Murphy, Lin, Bartolome and Wood, 2016.) and socio-emotional (Kambam and Thompson, 2009., Steinberg, 2008.) limitations experienced by developing adolescents, making them less able to moderate their behaviour when considering concepts of (criminal) responsibility. To best determine a morally and ethically acceptable MACR, it is essential to understand the psychosocial, biological, emotional and behavioural changes that occur over adolescence. In this report, I will be focussing on bio-psychosocial changes, that is, biological, psychological and socio-emotional changes and their influence on problematic, sensation-seeking behaviour and poor life choices of adolescents.

The United Nations (UNCRC, 2007) and Amnesty International, along with numerous legal scholars and mental health professionals have long opposed countries that attribute a MACR to pre-adolescent (˂ 10 years of age) and early adolescent children (10 - 14 years of age). They cite four developmental deficiencies that often affect children in contact with the justice system, memory, communication skills, social orientation and suggestibility. Additionally, children aged 10–13 years are particularly vulnerable to peer pressure (Amnesty International, The sky is the limit, 2018). To further this train of thought, culpability (a measured degree of responsibility) is proportional, ergo the evaluation of culpability is mainly a moral decision (Cauffman and Steinberg, 2000). If moral standards are to apply to offenders of varying levels of maturity, evaluations of maturity (and future determinations of culpability) should also address the influences guiding adolescent decisions (Cauffman and Steinberg, 2000, Modeki, 2008. Farmer, 2011).

Australia’s currently operates under the common law “mens rea” rationale where the mental element of an offence is distinct from the question of whether the offender understood the wrongfulness of the act. A child may possess required mens rea (e.g., an intention to harm) without perceiving the wrongfulness of the act (Crofts, 2014). Beyond ten years of age until 14 a discretionary defence, albeit a rebuttable one, called “doli incapax” is offered to adolescents between 10 and 14. Between these ages offenders are presumed to lack the understanding to be criminally responsible (unless proved otherwise), based on the assumption that children between 10 and 14 cannot understand the difference between right and wrong. The Australian Law Reform Commission (ALRC) noted that: “Doli incapax can be problematic for a number of reasons. For example, it is often difficult to determine whether a child knew that the relevant act was wrong unless he or she states this during a police interview or in court. Therefore, to rebut the presumption, the prosecution has sometimes been permitted to lead highly prejudicial evidence that would ordinarily be inadmissible. In these circumstances, the principal may not protect children but be to their disadvantage (ALRC 1997: [18.19]).”

The UNCRC has also commented on the limitations of doli incapax, arguing that ‘the system of two minimum ages is often not only confusing but leaves much to the discretion of the court/judge and may result in discriminatory practices’ (UNCRC, 2007.)

To better understand the cognitive and moral development of adolescents, and how these affect decision-making processes, research in the field of cognition and morality needs to be explored. Ben Mathews (2000) draws on the seminal research of psychologists Jean Piaget (1936) and Lawrence Kohlberg (1958) to explain the complex pathway children follow prior to accomplishing a mature concept of morality. A young child, for example, would consider a law to be a construct enforced by an authority figure and as such, would be motivated to obey the rule in fear of punishment or expectation of reward. The decision to comply, or not, is, therefore, dependant on the outcome and not the intent to act. A more mature child of 16, recognises that rules are based on intent and outcome and accepts that rules may be changed if a compromise is reached between parties. Once a progressive concept of morality is attained, individuals are better able to account for other groups of people and society as a whole.

Piaget’s (1936) theory of cognitive development may have inadvertently lent credibility to the method of allocating an age to criminal responsibility; however, it is important to note that Piaget acknowledged that accommodation should be made for exceptions within the model, as not all adolescents mature at the same rate (Mathews, 2000.). This view is more broadly supported by Post-Piaget researchers who tend to favour a non-age-related information processing approach which views cognitive change as continuous rather than stage-related (J. Arnett, 2018.).

Just as there is a link between cognitive development and moral reasoning, there also exists a link to problematic or risk-prone behaviour. Trimpop (1994), proposed that risk-taking is “any consciously, or non-consciously controlled behaviour with a perceived uncertainty about its outcome, and about its possible benefits or costs for the physical, economic or psychosocial wellbeing of oneself or others.” Criminal offences are listed among key risk behaviours in adolescence (Mathews, 2000., Shulman and Cauffman, 2013.) with death and injury rates 200% greater than their younger peers, however, this behaviour quickly tails off into through early adulthood (Tymula et al., 2012). The Dual Systems Model lends weight to the argument that children in mid-adolescence are more susceptible to risk-oriented and antisocial behaviour.

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Heightened vulnerability to impulse control and risk-taking in mid-adolescence may increase the probability of offending but not on their own. The Dual Sytems Model (DSM) is a theory to come out of developmental cognitive neuroscience that suggests increased risk-taking during adolescence is symptomatic of a dopamine heightened disposition to seek out risk and reward at a time where the capacity for cognitive directed self-control is comparatively underdeveloped (..........). Steinberg (2007, 2008, 2009) argues that excessive levels of problematic behaviour in adolescence are a result of competition between two very different brain systems, the socioemotional and cognitive control networks, both of which continue to mature throughout adolescence, but along very different timetables (Steinberg, 2007., 2008., 2009.).

The first of these systems to impact adolescent behaviour occurs around the same time that adolescents undergo puberty. The socioemotional system (SES) becomes very active at this stage of development, contributing to adolescents becoming more readily aroused and open to experiencing intense emotion while becoming more sensitive to social (peer) influence (Steinberg, 2007. Shulman et al., 2015). Within the developing socioemotional network, a remodelling of the dopaminergic system occurs, resulting in a reduction of dopamine receptor density. As a result of this remodelling, dopaminergic activity in the prefrontal cortex increases significantly playing a critical role in the brain’s reward circuitry leading to an increase in reward and sensation-seeking behaviour in early adolescence (Steinberg 2007., 2009., Shulman et al., 2015).

An increase in reward-seeking coupled with the delay in the development of the cognitive control system results in a temporal gap between socioemotional arousal, advanced self-regulation and impulse control that exposes a child’s vulnerability toward risk-taking during middle adolescence (Shulman and Cauffman, 2013., Steinberg 2007., Shulman et al., 2015.). NSW Commissioner for Children and Young People, Megan Mitchell, puts this into perspective (SMH, G, Jacobsen, 2012)

“A kid will do almost anything to maintain peer relations even if they are engaging in antisocial or criminal behaviour … They could very well realise it is wrong, but the pleasure-seeking and the immediate reward-seeking responses in the brain outweigh that thinking.”

Steinberg (2010) goes on to offer that despite it not being clear whether an escalation in reward-seeking is caused by increases in dopamine production or merely coincident with it. It is, therefore, conceivable that changes in neurobiology that promote reward-seeking are triggered to synchronise with sexual maturation, in order to promote the type of risk-taking that would be evolutionarily adaptive (Steinberg, 2010).

Sensation-seeking, because it involves branching out into the unfamiliar, carries a certain degree of risk, risk-taking that may prove essential in order to survive and thrive. This theory would be enhanced if risky behaviour was cross-cultural and cross-national. Indeed, Steinberg (2008) notes a study by Wilson & Daly (1993) involving research on the Ache in Venezuela; the Yamamano in Brazil; the Kung in Africa, where “young men are constantly being assessed as prospects by those who might select them as husbands and lovers…” and, “prowess in hunting, warfare, and other dangerous activity is evidently a major determinant of young men’s marriageability” (Steinberg, 2008.) Cross cultural evidence was also noted in a paper by Duell et al. (2016) where a sample of 49.3% Males and 50.7% females (5,227 individuals) between the ages of 10-30 from 11 counties were given a set of reward seeking and risk taking assessments concurring that “Although the basic tenets of the dual systems model appear to hold across cultures, in that risk taking is associated with higher reward seeking and lower self-regulation, there are cultural differences in the ways these factors operate”.

Similar assessments were reported by Steinberg (2008). To put it another way, risky behaviour is normative for adolescents crossing both cultural and national boundaries. What differs between cultures and nations is the context that drives risk and reward.

Children between the ages of 10 and 17 make up 13% of offenders in Australian prisons with around 600 of these being under the age of 14 (Australian Institute of Health and Welfare 2015. The health of Australia’s prisoners, 2015) and this is unacceptable but understandable under the circumstances. Adolescence is a time where individuals are able to test their environment without a high degree of self regulation and impulse control, particularly where males are concerned. If started at an early age individuals who engage with the justice system can suffer long term effects that can be quite profound (Amnesty International, The sky is the limit, 2018). According to Piaget’s Theory of Cognitive development the formal operation stage sees an improvement in impulse control followed by greater risk assessment and ongoing risk management. These stages are reached incrementally, and it is impossible to conclude that an individual will have reached a certain level of cognition by a particular age. These stages of development highlight that while children may appear to identify right and wrong behaviour, they lack an appreciation for why rules exist and the implications of these rules for society. Younger children, therefore, need protection from the law and should not be held criminally responsible for their actions.