AT WHAT age should children be held criminally liable for their actions? It depends where they live. In England and Wales, children under 10 are not considered capable of committing a crime and cannot be tried, no matter what they might have done. In Scotland the age is 8, though it will soon to be raised to 12. Some US states consider 7-year-olds to be criminally responsible, others set a minimum age of 15. In Belgium, the cut-off point is 18.
The age of criminal responsibility is quite literally all over the place. So what are we to make of claims that a 5-minute brain scan can determine a child’s level of brain development, and hence whether they are mature enough to understand the consequences of their actions?
Given the seemingly random nature of the age of responsibility, the idea has some appeal. Nobody wants to see child criminals who knew what they were doing get off because they are below some arbitrary age. Nor should children being tried for acts that they don’t understand are wrong.
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Yet on closer examination it raises myriad problems. Neuroscience has discovered much about brain development, but as yet no studies have looked into the relationship between brain development and behaviour. So it’s not yet clear how to convert developmental maturity into a measure of behavioural maturity.
And that is not all. Many legal scholars regard neuroscience with suspicion because it diminishes individual responsibility – the “my brain made me do it” defence. The prospect of lawyers trying to dazzle juries with brain scans “proving” that their client isn’t mature enough to face charges is not an appealing one.
“Many legal scholars regard neuroscience with suspicion because it diminishes responsibility”
Indeed, in the US defence lawyers have successfully argued that their young clients are still developing mentally and hence can’t be held responsible for their actions.
What the research does do is highlight the arbitrary nature of the age of criminal responsibility, and the absurdity of setting a cut-off point. If it leads to a more nuanced understanding of brain maturity that can be factored into the legal system, justice will have been served.
