Crime

Sex and Punishment: How Old Do You Have to Be?

By Maximilian Kiener

 

In March 2022, Philippines President Rodrigo Duterte signed a bill that increased the minimum age for sexual consent from 12 to 16 years. This bill marked a significant change to a previous law that dated back to 1930.[1] International Organisations have advocated for a changed in the Philippines for a long time and welcomed the new bill. ‘Having this law is a very good protective instrument for our children from sexual violence, whether or not it starts online or whether or not it also starts in a face-to-face encounter’, commented Margarita Ardivilla, a UNICEF child protection specialist.[2]

To the Western World, the Philippines’ new bill seems obvious and overdue. After all, most other countries already specify the age of 16 for consent to sex or health care. But we should not feel complacent too quickly. In fact, there might be more to do to protect children and adolescents. Although most countries now convergence on 16 as the age of consent, they still have a much lower age for criminal responsibility, that is they punish children much earlier than they allow them to consent.

 

Consider the following case from the UK. On Friday 12th February 1993 in Liverpool, UK, Robert Thompson and Jon Venables murdered the two-year-old James Bulger. At the time of their appalling crime, Thompson and Venables were only ten years old, an age at which they would not have been able to give legally valid consent to their own healthcare, or to sex. Yet, the authorities considered them criminally responsible and made them the youngest convicted murderers in 20th-century Britain.[3]

Although this is an extreme case, it illustrates a more general fact: the age at which children become criminally responsible is often considerably lower than the age at which they become able to give legally valid consent. Noroozi et al. found that in 80% of countries with clearly defined ages for consent and responsibility, the age of criminal responsibility is still about 2 to 8 years lower than the age of consent.[4]

This situation should make us think. Now that we agree that the age of consent should be around 16, and not 10 or 12, let’s think about the age of criminal responsibility too. Why should children or adolescents be criminally responsibility for their deeds when they could not possibly give consent to anything important in their lives?

 

Those who support a lower age for criminal responsibility often pursue one of two routes, neither of which is convincing.

First, they argue that consent requires greater mental capacity, or reasoning skills, than responsibility. When deciding whether to consent, one needs to be able to understand one’s own prudential interests, values, and the potentially intricate consequences of one’s decision, and doing so requires a great deal of intellectual and emotional maturity. On the other hand, understanding that one should not murder, steal, or break other fundamental norms, is pretty straightforward and everyone with a basic grasp of our social interactions should be able to master this.

But this line of reasoning is not convincing. Morality is not just about regurgitating slogans. It requires understanding, more fundamentally, what we owe each other as fellow moral beings. Moreover, sometimes, the situations regarding consent and responsibility could be very similar. Consider the fictitious case of the 15-year-old Mary who can be convicted of murder but cannot refuse her own life-saving treatment. In both cases, Mary needs to understand the concepts of death and fatal action, and it may therefore be inconsistent to hold Mary responsible for murder but then deny her ability to validly refuse treatment for herself. So, on purely capacity-based terms, a categorical divergence between the age of consent and the age of responsibility lacks warrant.

A second argument for a lower age of responsibility often refers to a policy of being ‘tough on crime’. Being tough on crime means sending a clear signal to children and adolescents that their wrongs will be prosecuted and punished.

Yet, this policy presupposes that children possess sufficient competence to understand the signal. Therefore, this approach cannot justify a lower age of responsibility independent of a psychological assessment of children’s competence. If children at 10 years old cannot sufficiently understand relevant moral and legal norms, there is simply no point in sending them ‘a clear signal’. Consider again the ten-year-old Thompson, one of the children who killed James Bulger, who is reported to have asked the police whether they took his victim James to the hospital ‘to get him alive again’.[5] Such a child is very unlikely to have understood the fatal nature of his acts, let alone their moral repugnance. Thus, being tough on children like him is very unlikely to deter children of similar competence.

 

Thus, the view that the age of responsibility should always be lower than the age of consent cannot be justified. We need a more fine-grained approach and should be particularly critical of wide age gaps, like those in the UK, where the age of criminal responsibility is 10 and the age of consent to much in life is 16.

For this reason, the news from the Philippines about the age of consent should be the start, not the end, of a conversation on how to best protect children and adolescents. It should prompt us to think about the age of criminal responsibility too and reform the law in ways that make it coherent across different domains.

 

[1] https://www.reuters.com/world/asia-pacific/philippine-leader-approves-bill-raising-sex-consent-age-12-16-2022-03-07/

[2] https://theaseanpost.com/geopolitics/2022/mar/09/philippines-raises-age-sexual-consent-16

[3] https://en.wikipedia.org/wiki/Murder_of_James_Bulger

[4] https://ebmh.bmj.com/content/21/3/82.abstract

[5] https://en.wikipedia.org/wiki/Murder_of_James_Bulger

Daunte Wright: Policing and Accountability

Written by Jake Wojtowicz and Ben Davies 

On April 11th, Daunte Wright was pulled over by police in Brooklyn Center, Minnesota. Shortly afterwards, he was shot and killed by police officer Kim Potter. Police Chief Tim Gannon described this as an ‘accidental discharge’. But framing events like this as accidents can be misleading and is just one way the police may insulate themselves from appropriate accountability.

The word ‘accident’ can bring to mind what we might call ‘sheer accidents’: bad fortune, acts of god, cars hitting the ice and veering off of the road. Even the language of an ‘accidental discharge’ can sound like Potter had the gun in her hand and it just somehow went off. But that isn’t what happened. Potter pointed the gun at Wright and pulled the trigger. She claims she meant to fire her taser.

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Nonconsensual Neurointerventions and Expressed Disrespect: a Dilemma

Written by Gabriel De Marco and Tom Douglas

This essay is based on a co-authored paper recently published in Criminal Law and Philosophy

Neurointerventions—interventions that modify brain states—are sometimes imposed on criminal offenders for the purposes of diminishing the risk that they will re-offend or, more generally, of facilitating their rehabilitation. A commonly discussed example is the use of hormonal agents to reduce the sex drive of certain sexual offenders. Some suggest that in the future, we will have a wider range of such interventions at our disposal, possibly including, for instance, treatments to reduce aggression or impulsivity, or treatment to enhance capacities for empathy or sympathy.

In a recent paper, we consider an objection to the imposition of such neurointerventions without the offender’s prior agreement. Some object to these ‘nonconsensual neurointerventions’ (or ‘NNs’) by claiming that they express disrespect for the offender. This, according to the objection, gives us reason not to implement them. On a strong version of the objection, NNs are invariably wrong because they always express disrespect. Continue reading

Lessons for Philosophers and Scientists from Sherlock Holmes and Father Brown

By Charles Foster

Arthur Conan Doyle’s estate has issued proceedings, complaining that Enola Holmes,  a recently released film about Sherlock Holmes’ sister, portrays the great detective as too emotional.

Sherlock Holmes was famously suspicious of emotions. 1 ‘ [L]ove is an emotional thing’, he icily observed, ‘and whatever is emotional is opposed to that true cold reason which I place above all things. ‘2  “I am a brain’, he told Watson. ‘The rest of me is a mere appendix’.3

I can imagine that many professional scientists and philosophers would feel affronted if they were accused of being emotional animals. Holmes is a model for them. He’s rigorous, empirical, and relies on induction.

But here’s the thing. He’s not actually very good. Mere brains might be good at anticipating the behaviour of mere brains, but they’re not good for much else. In particular Holmes is not a patch on his rival, Chesterton’s Father Brown, a Roman Catholic priest. Gramsci writes that Brown ‘totally defeats Sherlock Holmes, makes him look like a pretentious little boy, shows up his narrowness and pettiness.’ 4 Brown is faster, more efficient, and, for the criminal, deadlier. This is because, not despite, his use of his emotions. Continue reading

Video Interview: Jesper Ryberg on Neurointerventions, Crime and Punishment

Should neurotechnologies that affect emotional regulation, empathy and moral judgment, be used to prevent offenders from reoffending? Is it morally acceptable to offer more lenient sentences to offenders in return for participation in neuroscientific treatment programs? Or would this amount too coercion? Is it possible to administer neurointerventions as a type of punishment? Is it permissible for physicians to administer neurointerventions to offenders? Is there a risk that the dark history of compulsory brain interventions in offenders will repeat itself? In this interview Dr Katrien Devolder (Oxford), Professor Jesper Ryberg (Roskilde) argues that there are no good in-principle objections to using neurointerventions to prevent crime, BUT (!) that given the way criminal justice systems currently function, we should not currently use these interventions…

Doing More Harm Than Good? Should the Police Always Investigate Non-recent Child Sexual Abuse Cases?

Hannah Maslen, University of Oxford, @hannahmaslen_ox

Colin Paine, Thames Valley Police, @Colin_Paine

Police investigators are sometimes faced with a dilemma when deciding whether to pursue investigation of a non-recent case of child sexual abuse. Whilst it might seem obvious at first that the police should always investigate any credible report of an offence – especially a serious offence such as sexual abuse – there are some cases where there are moral reasons that weigh against investigation.

Imagine a case in which a third party agency, such as social services, reports an instance of child sexual exploitation to the police. The alleged offence is reported as having occurred 15 years ago. The victim has never approached the police and seems to be doing OK in her adult life. Although she had serious mental health problems and engaged in self-harm in the past, her mental health now appears to have improved. She does, however, remain vulnerable to setbacks. Initial intelligence gives investigators reason to believe that the suspect has not continued to offend, although there are limits to what can be known without further investigation. Should this alleged offence be investigated?

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Shamima Begum and the Public Good

Written by Steve Clarke,Wellcome Centre for Ethics and Humanities and Uehiro Centre for Practical Ethics, University of Oxford,

& School of Humanities and Social Sciences, Charles Sturt University

 

Shamima Begum, who left the UK in 2015 at age 15, to join the Islamic State, has been the subject of consistent media attention since she was discovered in the Al-Hawl refugee camp in Northern Syria, in February this year. Soon after being discovered in the refugee camp Begum was controversially stripped of her UK citizenship by Home Secretary Sajid Javid. Citizenship can be removed by the Home Secretary if doing so is deemed to be ‘conducive to the public good’. While it is illegal to render a person stateless, the Home Secretary is entitled to deprive UK citizens of their citizenship if they are also citizens of another country, or if they are eligible for citizenship in another country. Begum may be eligible for citizenship of Bangladesh, given that she has Bangladeshi ancestry, and there is a legal argument that she already is a citizen of Bangladesh.[1]

The Home Secretary’s decision has been much discussed in the media. Some commentators have argued that Begum’s interests should not be trumped by considerations of the public good. Others have questioned the legality of the decision. Still others have complained about the secretive nature of the decision-making process that led the Home Office to recommend to the Home Secretary that Begum be deprived of her citizenship. Here I will be concerned with a different issue. I will set aside considerations of Begum’s interests and I will set aside legal and procedural considerations. I will focus on the question of whether or not it is actually conducive to the public good in the UK to deprive Begum of her citizenship. Like most people, I do not have access to all of the information that the Home Secretary may have been apprised of, regarding Begum’s activities while she was living in the Islamic State, which would have informed his decision. So what I will have to say is necessarily speculative.

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Neurointerventions, Disrespectful Messages, and the Right to be Listened to

Written by Gabriel De Marco

Neurointerventions can be roughly described as treatments or procedures that act directly on the physical properties of the brain in order to affect the subject’s psychological characteristics. The ethics of using neurointerventions can be quite complicated, and much of the discussion has revolved around the use of neurointerventions to improve the moral character of the subjects. Within this debate, there is a sub-debate concerning the use of enhancement techniques on criminal offenders. For instance, some jurisdictions make use of chemical castration, intended to reduce the subjects’ level of testosterone in order to reduce the likelihood of further sexual offenses. One particularly thorny question regards the use of neurointerventions on offenders without their consent. Here, I focus on just one version of one objection to the use of non-consensual neurocorrectives (NNs).

According to one style of objection, NNs are always impermissible because they express a disrespectful message. To be clear, the style objection I consider does not appeal to the potential consequences of expressing this message; rather, it relies on the claim that there is something intrinsic to the expression of such a message that gives us a reason (or reasons) for not performing an action that would express this message. For the use of non-consensual neurocorrectives, this reason (or set of reasons) is strong enough to make NNs impermissible. The particular version of this objection that I focus on claims that the disrespectful message is that the offender does not have a right to be listened to.

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Terrorist Beheadings and Other Forms of Disease Transmission

By Hazem Zohny

Most of us are disturbed by people who take hostages and then cut their heads off while filming it. Alexanda Kotey and El Shafee Elsheikh – the remaining members of the British Isis cell nicknamed “the Beatles” – are accused of such gore. Now that they have been arrested by the US-backed Syrian Democratic Forces, the UK home secretary Sajid Javid has suggested that, contrary to standard practice, the UK will not oppose the death penalty for them.

Kotey and Elsheikh are the kind of malefic figures that push our most primal retributive buttons. Unlike a hungry shoplifter or drug addict, to whom many of us might respond with compassion, terrorizing decapitators seems to demand being snuffed out of existence – not only to deter others from copying them but also, as Boris Johnson put it, to retributively kill them as “payback for the filmed executions of innocent people.”

Given the vengeful emotions at play here, it might be interesting to apply to Kotey and El Sheikh what’s been called the “public health-quarantine model”. This model (to which I’ll henceforth refer to as PHQ) is based on the premise that all our retributive impulses are unfounded, and that in fact, Kotey and Elsheikh – and indeed all people, no matter what they do – do not act freely and are not morally responsible for their actions.

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Music Streaming, Hateful Conduct and Censorship

Written by Rebecca Brown

Last month, one of the largest music streaming services in the world, Spotify, announced a new ‘hate content and hateful conduct’ policy. In it, they state that “We believe in openness, diversity, tolerance and respect, and we want to promote those values through music and the creative arts.” They condemn hate content that “expressly and principally promotes, advocates, or incites hatred or violence against a group or individual based on characteristics, including, race, religion, gender identity, sex, ethnicity, nationality, sexual orientation, veteran status, or disability.” Content that is found to fulfil these criteria may be removed from the service, or may cease to be promoted, for example, through playlists and advertisements. Spotify further describe how they will approach “hateful conduct” by artists: 

We don’t censor content because of an artist’s or creator’s behavior, but we want our editorial decisions – what we choose to program – to reflect our values. When an artist or creator does something that is especially harmful or hateful (for example, violence against children and sexual violence), it may affect the ways we work with or support that artist or creator.

An immediate consequence of this policy was the removal from featured playlists of R. Kelly and XXXTentacion, two American R&B artists. Whilst the 20 year old XXXTentacion has had moderate success in the US, R. Kelly is one of the biggest R&B artists in the world. As a result, the decision not to playlist R. Kelly attracted significant attention, including accusations of censorship and racism. Subsequently, Spotify backtracked on their decision, rescinding the section of their policy on hateful conduct and announcing regret for the “vague” language of the policy which “left too many elements open to interpretation.” Consequently, XXXTentacion’s music has reappeared on playlists such as Rap Caviar, although R. Kelly has not (yet) been reinstated. The controversy surrounding R. Kelly and Spotify raises questions about the extent to which commercial organisations, such as music streaming services, should make clear moral expressions. 
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