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Doli incapax is a Latin term meaning “incapable of crime.” Legally, doli incapax refers to a rule of English common law applied to children. The rule acted as a bar to criminal prosecution of a child under 10 years of age.
Developed in the 1600s, the rule of doli incapax did not mean that a child under 10 was incapable of the physical act of a crime or of understanding the nature of right and wrong. Instead it took into account the lack of maturity of young children and their inability to fully foresee the consequences of their actions. It then put those actions completely out of the reach of criminal law.
The principles underlying the doctrine of doli incapax are still in use today in varying forms in countries around the world. In some places, the rule is a legal presumption against prosecution for children between the ages of 10 and 14, rather than an absolute bar to it. The burden is on the prosecution to prove that the child acted with the same reasoning as an adult.
The age limitations for children to be subjected to criminal prosecution vary by country. The rules governing procedures for children can vary among the different jurisdictions within a country such as the U.S. Still, the underlying principal in the U.S. and other countries is the recognition that the law must treat children differently than adults. There are many reasons for doing so that are important to both the child and to society.
The reasons advanced for the use of doctrines such as doli incapax have to do with the fragile state of development of children and the possible negative consequences of subjecting them to the criminal justice system. Given the complexities of the law, one concern is whether a trial for children of a certain age can even be considered fair in the way that an adult would understand “fair” to mean. Another is that punishment, especially in the form of any kind of physical incarceration, may simply hide or aggravate the problems that caused the criminal behavior.
There are some who argue that treating children more like adults is better for the individual child and society, as well. They believe children should learn early that breaking the rules of society has serious consequences. The thinking is that swift consequences would act as a deterrent to future criminal behavior and would also deter other juveniles from breaking the law.
The modern trend has been to give children some adult procedural rights while also shielding them from the stigma of involvement in the criminal justice system. Juvenile court is a closed proceeding with its records sealed. Juveniles who commit crimes are “respondents,” not “defendants.” They are “adjudicated delinquent,” not “found guilty” of a crime. Although there generally is no right to a jury trial, juvenile respondents have a right to legal counsel at every stage of the proceedings.
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