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CHILDREN'S CONCEPTION OF INTENTIONALITY AND THE CRIMINAL LAW (FROM PSYCHOLOGY IN THE LEGAL PROCESS, 1977, BY BRUCE D SALES - SEE NCJ-51491)

NCJ Number
51499
Author(s)
C B KEASEY; B D SALES
Date Published
1977
Annotation
PSYCHOLOGICAL RESEARCH STUDIES WITH IMPLICATIONS FOR THE PREVAILING RULE REGARDING MENS REA (CRIMINAL INTENT) IN JUVENILES ARE REVIEWED.
Abstract
THE PROBLEMS IN ASSESSING MENS REA FOR ADULTS OFTEN ARE COMPOUNDED IN CASES INVOLVING JUVENILES. RATHER THAN DEVELOPING PROCEDURES TO ASSESS MENS REA IN CHILDREN, LEGISLATURES (VIA STATUTORY LAW) AND JUDGES (VIA CASE LAW) HAVE ATTEMPTED TO DEAL WITH THE PROBLEMS BY DEVELOPING LEGAL PROTECTIONS FOR JUVENILES. THE PREVAILING RULE IS THAT ALL CHILDREN UNDER AGE 7 ARE INCAPABLE OF COMMITTING A CRIME BECAUSE THEY CANNOT FORMULATE THE APPROPRIATE MENS REA (UNDERSTANDING OF THE REASONABLE AND PROBABLE CONSEQUENCES OF THEIR ACTIONS). FOR PERSONS BETWEEN THE AGES OF 7 AND 14, THE PRESUMPTION OF NO MENS REA IS REBUTTABLE. PERSONS 14 YEARS AND OLDER ARE TREATED AS ADULTS WITH REGARD TO MENS REA. A REVIEW OF HISTORY, STATUTES, AND CASE LAW PERTAINING TO JUVENILE MENS REA SUGGESTS THAT THE KEY ELEMENT UNDERLYING A COURT'S INQUIRY INTO MENS REA IS THE CHILD'S INTENT TO COMMIT THE ACT. THE STUDY OF INTENTIONALITY AND ITS DEVELOPMENT IN CHILDREN IS NOT NEW TO PSYCHOLOGY. A REVIEW OF PSYCHOLOGICAL RESEARCH INTO THE AGES AT WHICH CHILDREN DISTINGUISH BETWEEN ACCIDENTAL AND INTENTIONAL ACTS AND BEGIN TO SHOW GREATER CONCERN FOR INTENT THAN FOR CONSEQUENCES PROVIDES NO SUPPORT FOR THE IRREBUTTABLE PRESUMPTION OF NO MENS REA IN CHILDREN UNDER 7 YEARS OF AGE. RESEARCH FINDINGS INDICATE THAT THE LOWER AGE LIMIT FOR IRREBUTABLE PRESUMPTION OF NO MENS REA SHOULD BE ABOLISHED OR LOWERED TO AGE 4. THE PREVAILING RULE'S TWO OTHER AGE DIVISIONS DO CONFORM TO THE RESULTS OF MORAL DEVELOPMENT STUDIES IN CHILDREN. A TEST FOR ASSESSING MENS REA IN CHILDREN CLEARLY IS NEEDED. THE STORY PAIR TECHNIQUE--PRESENTING A CHILD WITH SHORT STORIES IN WHICH THE CHARACTER ACTS EITHER INTENTIONALLY OR ACCIDENTALLY AND ASKING THE CHILD TO DETERMINE WHICH CHARACTER IS NAUGHTIER--COULD BE USED TO DEVELOP SUCH A TEST. A LIST OF REFERENCES IS INCLUDED. (LKM)