The Crimes of Children

Inconsistent responses to the conviction of two boys for attempted rape show we must raise age of criminal responsibility

It is welcome, though surprising, that the recent conviction of two boys for attempted rape has provoked a debate over the age of criminal responsibility. Surprising, because calls to raise the legal minimum age of 10 years were not so popularly aired in the recent Doncaster case, where two boys of near-identical age carried out an attack that also had a sexual dimension. Their victims, one of whom was only a year older than the girl in the rape case, were taken to a quiet location where they were beaten with stones and one of them forced to carry out a sex act.

Yet the response of commentators to these two cases could not have been more different. In each instance the perpetrators were deemed to have understood the nature of what they had done in both legal and moral terms. However, only in the public debate over the rape case have doubts been raised about whether such understanding amounts to that of an adult involved in a similar crime. The two Doncaster boys were almost universally regarded as having known they had done wrong and were deserving of their punishment because of it.

The judge's verdict was criticised by the charity Kidscape and other campaigners, who called for the boys' sentence to be doubled from five to 10 years. Yet in the equally serious crime of rape the boys' knowledge of what they had done is seen as more problematic. Recognition has been given to the fact that ethical judgement and behaviour are complicated feats, difficult enough for an adult, let alone a child.

The rape case has also highlighted concerns about the young defendants' comprehension of a full criminal trial. Stripped though it is of wigs and gowns, the process remains bewildering and intimidating. In 1993 when two 10-year olds took the stand accused of the murder of James Bulger, the circumstances of the hearing were barely remarked upon except to say that the atmosphere was not solemn enough.

The inconsistencies in these responses, together with the unique sympathy that the Old Bailey rape trial has provoked, points to an age-old problem about the crime of rape. The courts have often diminished the damaging reality of this crime and although much has changed in the prosecution of rape, the idea that women or girls provoke or at least collude in sex that results in violence remains part of our mythology. A little of this showed in the defence claim that the three children at the centre of this distressing case had been playing a game of doctors and nurses together, while others have claimed that the boys were displaying harmless sexual curiosity.

It is unnecessary to undermine the seriousness of what took place between the children in order to conclude that they should never have been subjected to an adult criminal trial. The chief prosecutor said it was in the public interest, but the judge spoke of flaws in the system and asked for a report into the potential psychological damage to the girl in giving evidence.

The previous government had the opportunity to make changes but chose to ignore the recommendations of a review that said a specialist youth court should hear serious crimes. It pointed out the anomaly of the British system – most other European and Commonwealth countries have separate adult and youth criminal justice systems. The report's author, Lord Justice Auld, also suggested that the age of criminal responsibility be raised to put England and Wales on a similar footing to most of Europe. The new solicitor general, Dominic Grieve, opposes such a move. It took 700 years to raise the age of criminal responsibility to where it is now – let us hope we don't have a similar wait for further changes.

(Published by The Guardian – May 27, 2010)

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