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Childhood and Crime$
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Claire McDiarmid

Print publication date: 2007

Print ISBN-13: 9781845860127

Published to Edinburgh Scholarship Online: May 2015

DOI: 10.3366/edinburgh/9781845860127.001.0001

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Children and the Mental Element in Criminal Law

Children and the Mental Element in Criminal Law

(p.42) (p.43) Chapter 3 Children and the Mental Element in Criminal Law
Childhood and Crime

Claire McDiarmid

Edinburgh University Press

This chapter investigates the attribution of criminal responsibility to children by means of the mental element in terms of the maxim actus non facit reum nisi mens sit rea. Its argument is that criminal responsibility is not fairly attributed to anyone who lacks understanding of the crime in its context and of its consequences and it draws on developmental psychology – specifically the theories of Jean Piaget and Erik Erikson – to make its case. It proceeds to unpack the mental element into three separate components: (1) a threshold of understanding and development which must be passed before any child can proceed to trial; (2) the child’s criminal capacity (or his/her understanding of the wrongfulness of the act and of its physical and criminal consequences); and (3) mens rea conceived narrowly as the factual question of whether the child intended or was reckless etc. It breaks down criminal capacity into six “capacity points”: (i) the volitional (or freewill) point; (ii) understanding of the distinction between right and wrong; (iii) understanding of causation; (iv) understanding of criminality and criminal consequences; (v) rationality; (vi) mens rea arguing the court must investigate the child’s understanding of each to reach an informed conclusion as to his/her criminal capacity.

Keywords:   Criminal law, Actus non facit reum nisi mens sit rea, Mens rea, Mental element, Criminal Capacity, Children, Piaget, Erikson

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