What happens when a child is accused of raping another child.

This week, it was reported that a New South Wales judge had dismissed charges against two boys accused of sexually assaulting a young girl in a toilet block of a school in 2016. Like that little girl, the formerly accused were children, too. They were still in primary school when the investigation began.

According to media reports, while throwing out the charges, the magistrate cited a High Court decision called RP vs The Queen, in which an 11-year-old boy avoided conviction for raping his younger brother. In that case, the child walked free because the prosecution failed to prove that the child understood his actions were “seriously wrong by normal adult standards”.

That concept is called Doli incapax, and it underpins how Australian law treats children under the age of 14.

Why 14?

In all Australian states, legislation prevents children under the age of 14 from being held legally responsible for their crimes. As Thomas Crofts, Professor of Criminal Law at University of Sydney explained, this principle is based on an understanding that “children need sheltering from the criminal law consequences of their behaviour until they are developed enough to understand whether their behaviour is wrong”.

Before the age of 10, a child cannot even be charged – no matter the seriousness of the crime. Between then and 14, however, that changes.

If the alleged offence is committed in that small age bracket, the presumption that the child is criminally incapable (Doli incapax) can be rebutted. This means that the child can be convicted if prosecutors are able to prove that he or she understood that the act was ‘seriously wrong’.

As the Australian Law Reform Commission has noted, Doli incapax acknowledges the developing capacities of young people and allows for “a gradual transition to full criminal responsibility”.

However, the ALRC also note that it can be problematic for several reasons:

“For example, it is often difficult to determine whether a child knew that the relevant act was wrong unless he or she states this during police interview or in court”.

So a 10-year-old can be investigated for a crime?

Yes. According to Australian Bureau of Statistics data, 107 10-year-olds were proceeded against by police in 2015-16.

In line with the stats on all juvenile offenders, the most common accusations levelled at 10-year-olds were theft and unlawful entry. However, 15 of them had allegedly committed a principal offence of (or related to) sexual assault. For all those aged under 14, that number stood at 433.

Should the law change?

According to the United Nations Committee on Rights of the Child, yes.

It concluded in 2012 that “a minimum age of criminal responsibility below the age of 12 years is considered by the committee not to be internationally acceptable”.

This call has not only been supported by groups such as Amnesty International, but also by a number of scientific researchers.

As the UK’s Royal College of Psychiatrists explained, the development of a person’s brain plays a significant role in their behaviour and understanding. The frontal lobes, specifically, are involved in an individual’s ability to manage information, changing behaviour, using acquired information, in planning actions and in controlling impulsivity, and according to the College are not believed to mature until 14 years of age.

There is no indication that state lawmakers are considering raising the age of responsibility.

So we can be assured that each time a young offender’s case hits the headlines this debate will reignite.