Infancy/Immaturity: Art. 52


Suppose a 3-year-old pushes her baby brother down the stairs, and the baby dies. Could we try the 3-year-old for murder? Does the 3-year-old commit the act of killing? Does she have the requisite intent (mens rea)? In fact a 3-year-old does not even know the meaning of life and death. To prevent silly inquires into whether an infant committed a criminal act with the requisite criminal intent almost every jurisdiction set infancy limit below which children are absolutely exempted from being subject of criminal law. This is based on the principle that an infant is incapable of distinguishing between right and wrong and so no criminal responsibility could be fastened in regard to his deeds. Children of such age are granted absolute immunity on the ground that they are doli inapax, that is, incapable of doing a criminal act, because a child under such age group cannot form the necessary intention to commit a crime. This is therefore a legal presumption. In other words it is immaterial whether the nature and quality of the wrong done as it is normally one to be done only by someone with high caliber and experience.


Some jurisdictions have adopted a qualified immunity as well to children whose age is above the infancy limit but below certain age limit. In the case of India, for instance, section 83 provides qualified immunity to a child above seven years of age and below twelve years of age. In other words, if it is     shown that the child has not attained the requisite degree of understanding to judge the nature and consequences of his conduct, he is exempted from criminal liability. In the absence of such proof, a child above seven years of age as much liable for his criminal act as an adult is. The maturity of understanding can be inferred from the nature and quality of the act, subsequent conduct of the doer and allied factors.


However, no absolute rule as regards the age of discretion is found. It differs from country to country. In Malaysia and England, the age of complete immunity is ten years. In India, Canada and some states in Australia it goes down to the age of seven. In Germany, Austria and Norway the minimum age is 14 years; while in Denmark and Sweden, it is 15 years; in Argentina a minor under 16 years and in France below 13 years if age is not punishable. Interestingly in the United States, the age of absolute incapacity varies from state to state ranging between eight to 12 years. Thus, the higher infancy limit a country has, the higher protection would children get and vise versa.


It is also common in many jurisdictions to have different age groups for young offenders with different treatment and punishment prescribed. The problems arising in relation to young offenders are not the same as those, which arise in relation to adults, because there exists between the two classes of offenders a difference in the nature of their intelligence or volition. A minor, even though he may be more intelligent than an adult, is nevertheless not a “miniature man” and he may not be treated as such for his appreciation of the world, is not that of a grown-up person.  This implies that a court dealing with a young offender consider the offence merely as an indication that he requires medical treatment, education or correction. The idea of retribution is almost altogether absent from the provisions applicable to young offenders, as indicated by the fact that the seriousness of the offence committed is not normally taken into account in deciding the offender’s fate. The issue is not to punish a juvenile “according to the degree of individual guilt”, but “to ensure the best possible treatment” and penalties.


This however does not mean that the provisions applicable to juvenile are not of a penal nature. Quite to the contrary, young offenders other than infants are subject to criminal law; yet, as they constitute a special category of wrong-doers (as is emphasized by the fact that, in many countries the law concerning them is enacted separately and not embodied in the penal code, and that they are tried by specialized courts under special rules of procedure), they come under special rules. (Philip Graven, pp. 144-145)


Accordingly, the Criminal Code of Ethiopia deals with infancy (which ends at the age of nine years), adolescence (which extends from nine to fifteen years, this being the limit of penal majority), and an intermediary period extending between penal and civil majority, i.e., between fifteen and eighteen years of age.