Ted Leggett
A Second Look
The schoolboy killings in Littleton, Colorado, have sent the United States into a paroxysm of self-analysis, and the media circus that has followed is unparalleled since the Clinton impeachment. Guilt-ridden middle-class mothers across the US are frantically scanning the tabloids for tips on how to spot the “warning signs” that little Johnny is a psychopath. Legitimate questions of gun control and parental responsibility will get the soundbite treatment until the next Monica Lewinsky comes along.
An important question that often gets lost in all the hype is: what would have been done with the boys if they had not taken their own lives? Here were two young men brought up with all the material advantages, highly intelligent but clearly immature, caught up in a fantasy world strangely at odds with their placid suburban upbringing. Could their actions be written off as youthful inexperience?
Schoolyard killings are nothing new to South Africa, of course, as the Yizo Yizo school system makes American headlines seem rather bland. The law commission has been wrestling with the issue of juvenile culpability since shortly after the elections.
International children’s rights organisations recognise that the age of criminal responsibility should vary from country to country, as the rate of maturation varies between cultural contexts. The question raised at commission consultations last week was: at what age should South African children be held to answer criminally for their unlawful acts.
At present, the law presumes that any child of seven or younger is incapable of forming criminal intent. Seven has been considered the dawning of the “age of reason” since classical times, so there is considerable precedent for this presumption. Sceptics should keep in mind that children’s brains are structurally incomplete in their early years, and it would make little sense to assign the same standards to their conduct as we do to adults’ conduct. The United Nations urges signatories to the International Convention on the Rights of the Child (and South Africa is one) to set this age at 10, based on the weight of global scientific experience.
Between the ages of seven and 14, there presently exists a “rebuttable presumption” that the child is doli incapax (incapable of having the intention to commit a crime). This “grey period” also makes sense, as children mature at different rates. While it may be psychological fact that no child, however prodigious, could form criminal intent below the age of seven (or 10), there will remain a period in which some children have matured to this point and others have not.
The problem is that few judges and magistrates take the grey period seriously, and generally dispose with the question of capacity after asking a few perfunctory questions of a parent or schoolteacher about whether “moral guidance” has been offered to the child. No real effort is made to probe the psychological development of the individual, a fact-finding mission that is essential before proceeding in good faith.
Providing instruction to the independent judiciary in matters such as these is no simple thing. Generally, it takes an Act of Parliament, and this is hopefully what the child justice Bill, when it finally comes to fruition, will accomplish.
Ultimately, the burden must lie on the state to prove, beyond reasonable doubt, that this individual child was capable of forming intent, and clear guidelines must exist for making this finding. When the state does not deem the case important enough to bear the expense of providing expert testimony, then the presumption protecting the child must stand.
An additional problem encountered in the South African context is proving the age of the child in the first place. Many births continue to occur unregistered, and street children rarely carry ID documents. At present, a cumbersome and expensive procedure is required to medically prove a child’s age, including skeletal x-rays.
In theory, the weight of this encumbrance should work to the advantage of the child, since borderline cases in which minor offences have been committed would rarely justify the cost and should thus be diverted to welfare. In practice, police officers often fudge the records and incarcerate the child anyway. The sword swings in both directions, however, and many youths above the minimum age are held with younger children, creating an additional hazard for the most vulnerable in state custody.
Since the deciding factor in the early stages of processing an accused child is physical age, the impact of physical deprivation on development must be considered. Malnutrition has been demonstrated to retard development both physically and mentally. And this calls into question a whole range of issues surrounding the ways South Africa’s history and present inequality have affected its young people.
Relative to the rest of the world, how mature is South Africa’s youth? Has the violent past (and violent present) retarded or accelerated maturation? Do rural children mature slower (due to lack of stimulation) or faster (due to increased community responsibility) than urban children? Can we set one standard for all cultural groups in South Africa?
Determining the answers to these questions is just part of the problem. On a more practical level, we must consider how whatever lines we draw will affect the broader crime situation. In a country where gangsterism and drug trafficking are on the rise, how can we prevent syndicates from exploiting these minimum ages and abusing our children in the process? How do we deter young offenders? And what should we do with children who persistently get into trouble?
Whatever standard is finally adopted, it is imperative that as many young people as possible be diverted into some form of innovative rehabilitation. The programmes are often expensive but we must be far-sighted enough to bite the bullet on this one. This country cannot afford to cultivate yet another criminal generation.
Ted Leggett is a researcher in the Centre for Social and Developmental Studies at the University of Natal