Comment: At what age should we allow children to legally consent to sex or accessing healthcare treatment? Let’s lower the age to 10.
After all, 10 is the age of criminal responsibility in New Zealand for the most serious crimes. So, if children can be held criminally responsible for their actions, then we should allow them to consent to things that matter in their lives. What’s the difference?
To be clear, I don’t think we should lower the age of consent. The problem I want to point out is that our laws are written as if 10-year-olds have mental capacity in some highly complex areas but not others, and that they need protecting from only some great harms.
Think about a 10-year-old who can be declared guilty of murder but cannot refuse life-saving healthcare until she’s 16.
It could be said that giving consent to healthcare requires a greater ability to reason compared with committing a serious crime.
Healthcare decisions involve the capacity to understand one’s interests, values, and the consequences of the decision. When it comes to criminal responsibility, it is simpler—one should not murder, steal or break the law in any other way. A child should be able to master this extremely basic social concept. However, a child does not have the maturity when it comes to healthcare decisions, so it makes sense to not lower the age.
But in both situations the child needs the capacity to understand the concept of death and think through the fatal consequences of her actions. And criminal responsibility is about morality. It requires the capacity to reason and understand what we owe our fellow moral beings. It is not as simple as just being able to say, “I must not kill or steal”.
It is contradictory then to hold her responsible for murder but override her refusal of healthcare because we don’t think she has the capacity.
A different contradiction occurs in regard to the age of consent to sex versus the age of criminal responsibility.
We have agreed that children and young people need protecting. Children need to be protected from sexual abuse and the negative consequences of early sexual activity. That is why we have an age of consent (16).
The harms of being held criminally responsible are different but children and youth similarly still need protecting—from internalising that they are criminals and from being in contact with a system that increases the risk of more offending. We are not protecting them from these great harms.
I’m not the only one who thinks the age of criminal responsibility should be raised. The Children’s Commissioner Judge Frances Eivers and Disability Rights Commissioner Paula Tesoriero wrote a joint letter to Parliament’s Justice Select Committee supporting raising the age of criminal responsibility.
They pointed out that New Zealand’s minimum age of criminal responsibility is out of step with international human rights standards and also with current understanding of children’s brain development and capacity.
Of course, there may be some who argue against raising the age of criminal responsibility.
One argument is that punitive approaches prevent re-offending. But research indicates the opposite. A 2018 discussion paper from the Office of the Prime Minister’s Chief Science Advisor noted, “harsh punishments have little deterrent effect on young people … Young offenders can find the ‘thrill’, or emotional ‘high’ of violent offending, and the social rewards (such as admiration from their peers), more important to them than concerns about being caught or facing social disapproval”.
The same paper reported that “young offenders (up to age 20) in prison are more likely than the general prison population to be re-imprisoned (42.5 percent) or reconvicted (62.6 percent) within 12 months of release”. So harsh penalties such as imprisonment do not prevent further offences from being committed.
Another argument is that if the age of criminal responsibility is raised, children will not face the consequences of their actions. However, Amnesty International—which is also calling for the age for criminal responsibility to be raised—points out the causes behind the child’s behaviour need to be addressed and age-appropriate consequences used. These include restorative practices and culturally appropriate reconciliation processes.
Let’s apply what we do in other areas—recognise the capacity of children and their need to be protected—and raise the age of criminal responsibility. It’s simple: the age of being criminally responsible should not be lower than the age of being able to give consent.
Read the original article at Newsroom.
Snita Ahir-Knight has a PhD in philosophy from Te Herenga Waka—Victoria University of Wellington and is a social worker and child and adolescent therapist.