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Children from 13 years to early adulthood
Children over the age of 12 are acutely aware of peer relationships and usually attach great importance to belonging to and having an identity with a peer group. Peer group pressure is therefore a powerful force and the need to be seen as “grown up” is strong and often gives a sense of status to the teenager. This age group may also experience a return to egocentric preoccupation with the self, particularly with physical body image.
Separation from close family and the need for independence may begin during this phase, and power struggles between caretakers on one hand and children in this stage of development on the other are a normal part of the struggle for independence and autonomy.
In a consultation document by the Home Office of the United Kingdom Government (Home Office (b)1997:1) it is stated that people are influenced throughout their lives, especially as they grow up, by a variety of factors which may lead them towards, or away from, crime. The single most important influence on a child’s development is that of the family. Those children who show signs of criminal behaviour at an early age are those who are most likely to end up as serious or persistent offenders. Such children often come from communities and families which are unstable, chaotic and suffer from a number of problems. Their parents are likely to have a criminal record, to neglect their children, or to exercise low levels of supervision and harsh and erratic discipline, and themselves come from similar families. Children who are exposed to abuse and neglect within a climate of hostility at home are particularly at risk of becoming violent offenders.
According to the consultation document (Home Office (b)1997:2) children’s behaviour and attitudes are shaped and influenced by their experiences at school. Children who offend are more likely than others to fail at school, to play truant persistently, to behave disruptively or be permanently excluded from school.
The consultation document (Home Office 1997:3) points out that juvenile offenders often commit offences with others. The use of leisure time, and peer pressure, can influence the likelihood of offending. Those who spend their leisure time in unstructured and unsupervised activity on the streets are more at risk of offending.
According to Earl-Taylor (Maughon & Geduld 2004:1) children who kill are not born violent, but are created by their social circumstances. He indicates that most children who kill have themselves been subjected to violence. According to Earl-Taylor, murders committed by groups of children usually involves on principal instigator, whose behaviour is followed by the other. Children become socialised into violent behaviour in four stages. First, they are the subjects of physical, sexual or emotional abuse or neglect. They then witness violent behaviour, which is frequently committed by their father against the mother in the child’s home. In the third stage, the child becomes involved in violent coaching, modelling roleplaying behaviour on the violence they witness in their immediate surroundings. In the final stage, they start enacting violent behaviour.
The Australian Institute of Criminology (1990:77–84) states that all human behaviour results from the interaction of genetic and environmental factors, and violent behaviour is no exception. Evidence strongly suggest that such behaviour is largely determined by the interaction of constitutional characteristics, such as temperament and intelligence, and factors within the family, which is the environment in which the child grows up. Observers of young children have noted that a high proportion of their social interchanges are hostile in character, but that normally the proportion of aggressive actions decreases with age.
This change is a result of the socialisation process which every child undergoes: a combination of observational learning – seeing how the people around cope with situations where aggression is one possible reaction – and conditioning – learning what behaviour is approved via the routine interactions of child and parents.
According to the Australian Institute of Criminology (1990) child physical abuse is not usually intentionally gratuitous. Rather, it occurs in the course of punishment, when parents are responding to some perceived misbehaviour on the child’s part. The circumstances in which physical punishment is used against children contributes to a learning process. Children learn to associate love with physical punishment. The child is struck by those human beings to whom he or she is the closest. As physical punishment is most typically employed as a means of redress for misbehaviour on the part of the child, the child may come to accept it as morally justifiable to use violence against a wrongdoer.
Because of the acknowledged importance of family experiences in children’s development, it is often assumed that the rupture of the family may easily result in delinquency in general and aggression in particular. However, the evidence is inconclusive. Even a traumatic break-up of the family may be no more damaging than its cause: a miserable prevailing atmosphere in the home may affect the child more than parental supervision (Australian Institute of Criminology: 1990).
Studies support the commonsense view that abuse and neglect make an important difference in a child’s behaviour. However, bearings or psychological abuse may be only one feature of child-rearing practices in abusive families which may result in aggressive behaviour in children. It is commonly held that abused children will inevitably become abusive parents. Evidence confirms that abusive parents themselves tend to have been abused or neglected, physically or emotionally, as children (Australian Institute of Criminology: 1990).
According to Crofts (2002:60) the social environment of the child is of importance, for the child may not regard certain forms of criminal behaviour to be seriously wrong if they are part of his/her daily environment. Family life plays a central role in the development of aggressive behaviour in children, and in the control of such impulses as well. However, there are many other social influences which may affect aggression, including television, schooling and peers. There is strong evidence to suggest that the onset of delinquency precedes participation in delinquent groups and that much juvenile crime occurs in a group setting for reasons that do not necessarily have anything to do with the influences of peers on one another.
The Australian Institute of Criminology (1990) also indicates that the more delinquent a boy, the less value he attaches to the opinion of his friends, and that delinquent group seem to be the refuge of boys with little respect for the opinions of friends. The company of delinquent or aggressive peers, in school or out, may influence individuals to misbehave.
However, the magnitude of the effect is difficult to estimate and in any case, such behaviour seems usually to predate communal factors. School experience and friends, it seems, are largely incidental to the more important factors or personal traits and family experience in determining criminality in general, and violent behaviour in particular.
Cohen (2002:4–5) indicates that the classic texts in child psychology – especially those of the great Swiss psychologist, Jean Piaget (1896 – 1980) – come from a time when education was more formal, when there was less competition, when children’s TV didn’t exist, when there was no Internet and when no commercial genius had dreamed of the idea of marketing to children and using focus groups of 6-year-old consumers. Even anodyne heroes like Babar and Winnie the Pooh appeared later (at least as major television and radio personalities) than Piaget’s key books. The effect of exposure to the media on children’s intellectual development is only now starting to infiltrate psychology.
CHAPTER 1 INTRODUCTION AND METHODOLOGICAL FOUNDATION
1.1 Introduction
1.2 Methodological Foundation
1.2.1 Goal of the Research Project and Guiding Principle
1.2.2 Rationale
1.2.3 Delimitation
1.2.4 The Respondents
1.2.5 The Research and Data Collection Process
1.2.6 Compilation of the Report
1.3 Summary
CHAPTER 2 INTERNATIONAL INSTRUMENTS AND COMPARATIVE STUDY ON CRIMINAL CAPACITY IN AUSTRALIA, UNITED KINGDOM AND HONG KONG
2.1 Introduction
2.2 International Instruments
2.3 Criminal Capacity in Australia
2.3.1 Introduction
2.3.2 Statutory Minimum Age
2.3.3 Excerpts from Cases Law
2.4 Criminal Capacity in the United Kingdom
2.4.1 Introduction
2.4.2 England and Wales
2.4.3 Scotland
2.5 Criminal Capacity in Hong Kong
2.5.1 Law Reform Commission
2.5.2 Historical Background and Present Position
2.5.3 Implementation of Doli Incapax Presumptions in Hong Kong
2.6. Conclusion
CHAPTER 3 CRIMINAL CAPACITY: HISTORICAL BACKGROUND AND POSITION
IN SOUTH AFRICA
3.1 Introduction
3.2 Historical Background
3.3 Current Position in South Africa
3.3.1 The Concept of Criminal Capacity
3.3.2 Prosecution – Factors to be Considered
3.4 Case Law
3.5 Statistics on Children under 14 years in Prison
CHAPTER 4 CRIMINAL CAPACITY IN THE CHILD JUSTICE BILL, 49 OF 2002
4.1 Introduction
4.2 Child Justice Bill, 49 of 2002
4.3 Evaluation and Assessment of Criminal Capacity
4.3.1 Cognitive Development
4.3.2 Emotional Development
4.3.3 Psychological Development
4.3.4 Social Development
4.4 Conclusion
CHAPTER 5 MERITS OF THE CASE AND OTHER IMPORTANT FACTORS
5.1 Introduction
5.2 Merits of the State’s case
5.3 Practical Illustration
5.4 Other Important Aspects Regarding the Development of Children
5.4.1 Sexual Development
5.4.2 Physical Development
5.4.3 Language Development
5.4.4 Moral Development
5.4.5 Cultural Context
5.5 Conclusion
CHAPTER 6 CAPACITY RELATED ISSUES
6.1 Introduction
6.2 The Time of the Assessment and the Number of Assessments
6.3 Testimonial Competence of the Child Offender
6.4 The Evolving Capacities of the Child
6.5 Age Determination
6.5.1 Criminal Procedure Act, 51 of 1977
6.5.2 Case Law Relating to the Age Determination of Accused
6.5.3 Proposed Provisions in the Child Justice Bill, 2002
6.6 Conclusion
CHAPTER 7 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
BIBLIOGRAPHY
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CRIMINAL CAPACITY OF CHILDREN
