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Juvenile Sentencing and Punishment

 
 
Reply Sun 2 Apr, 2006 11:13 pm
For those of you in the legal know, you will understand the principle of doli incapax - that no child under the age of 10 (or thereabouts, depending on which jurisdiction you are in) will be held criminally responsible - there is an irrebutable presumption. In the context of this information:

- should we abolish such a presumption or at least render it rebuttable?
- should children even be subject to an exceptional protection under law or be punished if they did something wrong, whatever their age as a minor?

Doli incapax is meant to protect children who are at the age where they cannot decide what is right or wrong legally or morally. Should we introduce a measure with the aim of not so much protection, but also with a teaching aim incorporated - you don't know its wrong but the law will impose on you consequnces which MAKE you know its wrong but nonetheles imposing appropriate punishment, as opposed to just merely concluding you are within the irrebutable presumption range.

Views from lawyers and non lawyers all welcome. Maybe you have a personal opinion or legal or socially based opinion on this?
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Type: Discussion • Score: 1 • Views: 1,841 • Replies: 8
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Walter Hinteler
 
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Reply Mon 3 Apr, 2006 12:08 am
Just following the discussion since we don't have doli incapax in German criminal law.

(Children below the age of 14 are generally inmature for [criminal] punishmenet; the Juvenile Criminal Code (for those between 14 and 18/21) is a "educational criminal law" (a compromise between welfare and justice) (good summary about the German system)
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joefromchicago
 
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Reply Mon 3 Apr, 2006 08:47 am
Re: Juvenile Sentencing and Punishment
researching wrote:
For those of you in the legal know, you will understand the principle of doli incapax - that no child under the age of 10 (or thereabouts, depending on which jurisdiction you are in) will be held criminally responsible - there is an irrebutable presumption. In the context of this information:

- should we abolish such a presumption or at least render it rebuttable?
- should children even be subject to an exceptional protection under law or be punished if they did something wrong, whatever their age as a minor?

I've practiced law for nearly twenty years and that's the first time I've ever heard the term doli incapax, but then I've never done criminal law. I'm not sure if there's an irrebuttable presumption that a child under ten cannot form criminal intent -- I thought it was somewhere around seven or eight. At some point, however, it's a good idea just to assume that the wee ones didn't mean it -- otherwise the jails would look like nursery schools.
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Walter Hinteler
 
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Reply Mon 3 Apr, 2006 09:07 am
It's legal term more used in UK/British/Commonwealth law, I think.

Doli Incapax: Why Children Deserve its Protection is a paper in the Murdoch University Electronic Journal of Law, Volume 10, Number 3 (September 2003).
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researching
 
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Reply Thu 6 Apr, 2006 12:36 am
Hi joe and walter:

Thank you very much and joe, the reason you haven't heard of doli incapax before is because I am speaking from the Aust perspective - I'm so sorry, I should have made it more clearer about what jurisdiction I was coming from.

Walter thank you for that article and its quite useful, if anything right on point for one of my topic papers.

Here's another thing I want to put forward - quite bluntly actually:

Do parents and the law have the right to capital or corporal punishment in the case of children? Smakeing is one controversial issue which some Aust politicans for called for, in the case of parental rights anyway.
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dlowan
 
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Reply Thu 6 Apr, 2006 12:40 am
Well, as far as I know parents aren't allowed to KILL kids...but they have the right to smack, I believe, insofar as it has not been banned in Oz.
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Walter Hinteler
 
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Reply Thu 6 Apr, 2006 01:03 am
dlowan wrote:
Well, as far as I know parents aren't allowed to KILL kids...but they have the right to smack, I believe, insofar as it has not been banned in Oz.


That's something which is subsumeed under "abuse" here in German law.

German Criminal Code:
Quote:
Section 223 Bodily Injury
(1) Whoever physically maltreats or harms the health of another person, shall be punished with imprisonment for not more than five years or a fine.
(2) An attempt shall be punishable.
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dlowan
 
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Reply Thu 6 Apr, 2006 01:17 am
Yeah....here, so far as I know, there is no forbidding of smacking.....but marks are a no no. The head or other vulnerable parts a no no, fists or implements a no no.


Every state would be different.


It is a fraught area...when does it become abuse? IS it abuse in and of itself? No carer is permitted to do it...but some "christian" schools get a signed consent from parents for corporal punishment...the legality of this is doubtful to say the least.
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Walter Hinteler
 
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Reply Thu 6 Apr, 2006 01:19 am
Well, it's statistically-legally 'abuse' here.
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