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Law of the West

John Scorsine
Peyton, Colo.

As I was struggling to find a topic to write on for this week’s column, CNN came to the rescue. Today, there was a story about an 8-year-old schoolgirl sexually assaulted in St. Louis. According to the report, her assailants weren’t known sex offenders or some pedophile lurking around the schoolyard offering “candy” to the little girl. Rather, she is alleged to have been assaulted by 12 young boys, classmates, ages 6 to 8. If that is not shocking enough, the story goes on to report a court official as saying the children could face criminal charges of sexual misconduct and assault.

Under the English Common Law, from which our system of justice once was derived, there was a creature called the Rule of Sevens. A child was irrefutably presumed not to be able to form a criminal intent if under age 7 and rebuttably presumed not to have that ability if under age 14. During the last 10 years the United Nations even weighed in on the penal system, criminal responsibility and infancy. In the Convention on the Rights of Children, which the United States has signed along with some additional protocols (“UN speak” for international agreements), we agreed to “the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.”

As any parent will attest, children don’t think right. There are studies from various universities that address the topic. But, anyone who has raised a child knows those studies are a waste of money. Just ask our parents. Children simply don’t think like adults; we didn’t, our parents didn’t, and our children are no different. International law says that children below a certain are too young to be held responsible for their actions in a criminal sense … we aren’t talking about the firm application of “parental guidance” out at the woodshed … we are talking about criminal prosecution. Children below a certain age are simply too young to be held responsible for breaking the law. But the UN Convention does not set a specific age, and it varies greatly.

In most European countries the youngest age for criminal responsibility is 13 to 16 years old. Scandinavian countries set the age at 15; Japan at 20; in China its 14; and, in Latin and South America, where there is considerable reform underway, it is generally 18.

In the U.S., the age of criminal responsibility is established by state law. Only 13 states have set minimum ages, which range from 6 to 12 years old. Most states rely on common law, which holds that from 7 to 14, children cannot be presumed to bear responsibility. According to the U.S. Department of Justice’s survey of the law, Colorado has a minimum age of 10 for criminal responsibility; Wyoming is 13; and, Nebraska has set 16 for a minimum age.

I certainly don’t mean to detract from the seriousness and gravity of what may or may not have happened on a playground in St. Louis. An assault, especially one with sexual aspects associated with it, is horrendous to imagine being perpetrated on any child. But, as a society we have to determine at what age it is reasonable to assess societal, governmental, penal sanctions to behavior and when a matter is best left to parents.

The information provided in this column is based upon general principles of law and should not be relied upon in any manner. It is not the intent of this column, its author, publisher or the Fence Post to provide legal advice to any person. You should address specific legal questions to your family lawyer. In Wyoming, the State Bar can refer you to competent lawyers in your community by calling (307) 634-7823. In Colorado, call the Metropolitan Lawyer Referral Service at (303) 831-8000. Readers in Nebraska can receive referrals from the State Bar Association by calling 1-800-742-3005.


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