Australian states and territories have agreed to raise the age of criminal responsibility from 10 to 12 years old.
But 12 is still out of step with many other developed nations and goes against the United Nations’ Committee on the Rights of the Child and Australian Human Rights Commission, both of which recommend increasing the age to 14.
Australian Medical Association President Dr Omar Khorshid has said raising the age to 12 falls “well short of what is needed” and ignores medical, legal and social advice on the real harm of the current laws.
The law disproportionately affects Indigenous children who are some of the most incarcerated youths in the world, with experts arguing the difference between a 10, 12 and 14-year-olds’ brain is stark.
How does the brain change in four years?
The part of the brain responsible for culpability — the prefrontal cortex — ramps up development from around the age of eight, when kids become able to plan ahead and factor future consequences into their decisions. During puberty, which generally hits between the ages of nine and 13, brains go through a growth spurt, with kids developing better reasoning abilities, identity and consciousness, bringing the ability to appreciate what other people are thinking and feeling.
But as neuropsychologist and associate professor at Melbourne University’s Centre for Youth Mental Health Warrick Brewer tells Crikey, these developments don’t happen all at once. During the first trimester of brain development in puberty, he said, kids still have a basic understand of morality.
“Across early puberty, it’s pretty normal for kids to be black and white in their thinking so they’re less flexible about what’s right and wrong,” he said.
“They tend to be more focused on their own feelings rather than having the resources to regulate the impact of their behaviour based on an understanding of other people’s feelings and state.”
Research shows as their morality compass becomes more nuanced, kids between the ages of 10 and 14 become more susceptible to peer pressure. It’s rare for kids aged 10-14 to commit serious crimes, with young kids more likely to have property damage offences, while those aged 15-17 are more likely to have theft, drug and unlawful entry offences.
Those who end up in the justice system aged under 14 are more likely to have an undiagnosed disability or be experiencing trauma.
Along with physical and mental development comes impulsivity and an increased likelihood of engaging in risky behaviour, Brewer said, with dopamine activity increasing teens’ sensitivity to reward and making them more likely to seek out thrilling behaviour. The brain doesn’t stop developing until around the age of 25, though parts of the brain reach maturation at 18.
What compels criminal behaviour?
Across the 2020 June quarter, there were nearly 800 children in youth detention in Australia. Just 9% were girls, and 48% of all kids in youth detention were Aboriginal or Torres Strait Islander children. Indigenous youth are 17 times more likely to end up in youth detention. The Northern Territory has the highest number of incarcerated kids in Australia.
Brewer says problematic behaviour is a result of underlying emotional distress, and acting out is a response for teens who are being overwhelmed by “powerful, natural, healthy feelings” who haven’t developed or learned the tools to cope with those feelings.
“Through no fault of their own, they are externalising signs of that distress and being blamed for the underlying unmet need,” he said.
“It’s like not feeding an infant, then punishing him when he starts acting up to show his hunger.”
Most kids who end up in youth detention centres are disadvantaged, with experience of ongoing social, family or educational adversity, and a history of traumatic life events.
University of Sydney associate professor of psychology Paul Rhodes tells Crikey while kids need to learn about accountability, different approaches were necessary.
“Their troubles are all tied up in family issues and trauma and poverty, marginalisation, racism … and the idea of throwing jail at the complex problem is cruel,” he said.
Long term family therapy is one solution, he said, helping to set and enforce boundaries and build attachments with the community to make sure kids are engaged and have structure.
What happens to kids in the system?
Locking kids up, unsurprisingly, doesn’t heal their histories of trauma. The younger a child is when they encounter the criminal justice system, the more likely they are to reoffend.
A 2017 royal commission into the protection and detention of children in the Northern Territory found kids were subject to verbal abuse and denied access to toilets, water and food and were dared or bribed to hurt each other, with detention causing lasting psychological trauma. One Brisbane-based study found 75% of boys and 90% of girls in youth detention had mental health challenges indicative of trauma.
The government is seeking to reduce the rate of Aboriginal and Torres Strait Islander kids in detention by 30 per cent by 2031, though incarceration rates haven’t dropped in recent years.
A spokesperson for The National Aboriginal and Torres Strait Islander Legal Service said raising the age of criminal responsibility to 12 instead of 14 was irresponsible.
“The medical evidence is clear – no child belongs in prison, but 14 years old is the absolute youngest age a child should be subjected to the criminal legal system,” they said.
“If governments only raise the age to 12 years old, then 456 out of the 499 children under 14 in prison last year will remain locked away.”
This is just part of a bigger problem. Our society uses jail as a way to deal with mental health issues – for adults as well as children. Better mental health services has the potential to reduce the numbers of prisoners given the reported significant number of people imprisoned for what appear to be mental health related behaviour.
Fix inequality, health and education. End of problem.
This would certainly help I agree Unfortunately I think the issue is very complex often you’re dealing with intergenerational trauma and neglect which doesn’t have a quick fix.
Fix inequality, health and education, we’ll find we’ve got a greatly decreased (possibly vanishingly small) problem so we figure out what else needs to be done.
Kids who do bad things, have an 80% probability of having suffered adverse childhood experiences usually, but not always at the loving hands of their parents. The exception to this rule is kids born with the genes that make them psychopaths, or as they are described when children as “callous and unemotional” people. The psycho pats are an extreme minority, only 1% of the population, but 25% of the prison population.
There is extensive research that proves this, but it isn’t acceptable, because of the Judeo-Christian belief in right and wrong being subject to the choice of the individual. The other problem is that blaming childhood experiences implicitly blames parents and or their circumstances. None of these causes of dysfunctional, criminal behaviour is acceptable to a society that holds for the primacy and responsibility of the individual and doesn’t want to do anything about poverty and inequality.
Ohh! they make “bad choices” Yes they do and the worst choice they ever made was their choice of parents and the environment they were born into. In the case of the Indigenous population they were subject to genocide by the colonials who took over their country. They didn’t choose that I’m sure.
As for psychopaths, or as the DSM likes to call them sociopaths it’s in their genes and so you can’t pin their lack of morality on their sole or whatever other fantastic organ religion provides for. It’s hard-wired into their brains. God must have done it; He made them. Blame him! best of luck with that!
Instead of looking to blame the perpetrator and mete out punishment, such people need to seen for what they are, dysfunctional humans who are a danger to themselves and society. If that means locking them up as the only alternative so be it. But if you are going to let them out without tackling their underlying issues then recidivism will be the result. The man who murdered Jill Meagher should never have been at large and if imprisonment was treated as the protection of society and not punishment then he would never have been let out. His lawyer claims he had been diagnosed with Borderline Personality Disorder and Alcoholism. This may possibly be the case as BPD men do inflict violence on spouses although they are much more likely to harm themselves. So how was it that society allowed him out to kill? What amazes me is the lack of interest and the media coverage of why this man did what he did. Much easier to blame a lack of morals and leave it at that. I bet he knew what he was doing was “wrong” but he still did it. What drove him to it that’s what I want answered, but the media loves the blame game, it sells to the public, because they have watched too many Hollywood movies with Clint Eastwood and Rambo who solve problems with state sanctioned violence from the barrel of their guns. It’s all about justice, not the prot4ection of society.
Punishment is the imposition of a penalty and it is simply retribution for a crime. It therefore has to have an end point and the possibility of parole to accommodate the severity of the offense. Some people should never be let out; the risk is too high. But blame isn’t useful to assess this, the person’s criminal and childhood history provides a lot more to go on.
We would all agree that drug addicts are nasty untrustworthy people often criminals with poor health and a propensity to upset everyone they come into contact with, But the interesting thing about addicts is they are very hardworking when it comes to getting the money they need to feed their habit. They aren’t lazy useless people, they are sick and they work hard to get the substance that makes them feel normal. Scratch ten of them and you will find that eight of them will have suffered chronic childhood abuse, neglect or any combination of these. And more than likely it is emotional abuse not physical or sexual that is at the core of their dysfunction. Physical and sexual abuse begets emotional abuse and it is the toxic stress created via emotions that wreak havoc on the young mind AND the body.
The other two of the ten addicts, probably had a genetic disposition to become addicted to substances and/or risk taking and simply fell into substance use and ultimately addiction, as a consequence of peer pressure, stress at school or general life stresses that teenagers endure.
The blame game and the institutionalized retribution that it begets has been shown over and over not to work. Yet people cling to it like a security blanket because it panders to their emotional needs and not the needs of victims or their perpetrators or ultimately the safety of society.
As Kathy Dawson had pointed out with respect of Juvenile offenders:
“Unfortunately I think the issue is very complex often you’re dealing with intergenerational trauma and neglect which doesn’t have a quick fix.”
But just because it’s complex and hard if we want to deal with kids who steal laptops locking them up won’t fix it we need to use our brains.
Well said Robert. It is all about a society that demands a single dimension solution to a multidimensional problem. Whether that makes us a single or simple minded society is a decision other readers may like to make.
Oh enough enough enough of this “woke” bullsh*t! By which you appear to mean people who can understand that complex issues aren’t solved by simple solutions like Lock em up and Burn the monsters! Intelligent, considered people live in rough suburbs too you know! I was listening the other day to a great chat on the ABC with a gent, David Heilpern, who was a country magistrate in towns including Dubbo, Brewarrina and Lismore and it was just so refreshing to hear a compassionate, intelligent voice when so much of what we receive in the news and social media is ill-informed, ignorant and cruel.
As he made clear, in ABC Conversations last year, he could no longer cop being associated with such a rotten system and retired early.
The final straw was the outrageous THC trace detection charges brought, routinely, in the northern Rivers region against curiously specific, easily identified persons.
At the end of the podcast he said he had gone back to working as a barrister (not barista which is always a good joke 😉
Of course people have compassion for “victims” just like they have compassion for people who are victims of societies and governments indifference and cruelty. Guess what, there is enough compassion to go around for everyone! Why do you assume that that people who care about the disadvantaged don’t care about “victims of crime” keeping in mind that there property damage and theft are not the only crimes that exist! Not all of us are so limited in our thinking and feeling!
Some kids is jes’ plain bad – how many families of exemplary siblings have had a wrong’un grow up with them?