The principle of doli incapax refers to the notion that children do not have the capacity to participate in criminal activities (Cunneen & White, 2011). This is under common laws, which have made it appear as though minors aged below 10, as is the case in Australia are incapable of committing criminal offences. The argument in justification of this principle is that minors do not have the ability to discern right from wrong. For instance, Australian laws hold that children aged below 10 are protected by the doli incapax principle, and therefore, cannot be charged with criminal offences (Leverich, 2009). However, those aged between 10 and 14 are safeguarded by the principle in the sense that it acts as a rebuttable presumption (Hess & Drowns, 2004).

The doli incapax principle defends infants, as per the stipulated age bracket from any criminal proceedings against them for actions, which may otherwise be regarded criminal in nature. However, upon attaining certain ages, some degree of responsibility for their actions may be applied to the children who are aged below 10. The common law express infants’ defense as sets of presumptions, whereby underage children were considered incapable of taking part in criminal activities (Marmo, Lint & Palmer, 2012). The age of 10 is one in which the children cannot be said to be extremely young, and unable to distinguish right from wrong. However, the age is higher than India’s, which is 7 years, but at the same time lower than China’s, as well as Denmark, which range at 16, and 15 respectively. The International Criminal Court’s case is different because the crimes that are heard and decided by the ICC are those against humanity. It is highly unlikely that children would commit crime of such nature, and this means that the age should not have been set in relation to the International Criminal Court.

The doli incapax principle as applied in Australia has been subjected to several criticisms. The criticisms arise from the fact that criminal activities should be punished according to law as in the principle of equity (Scott& Steinberg, 2008). One of such criticisms is based on the age for which individuals are exempted from punishments. At the age of 10, it is expected that children have the abilities to discern right, from wrong, and as such, they should be held responsible for their actions. Ordinarily, a child aged 10 has been attending school for at least 5 years. and has most probably been introduced to the need for observation for the rule of societies’ law. Additionally, at that age, it is highly likely that a child has been taught the consequences of contravening the laws of a country. It is therefore argued , they should not be exempted from punishment so that discipline can be instilled in them at a young age.

In 1930, in Austarlia, the doli incapax the age was raised to 8, from 7. Thereafter, in 1970, it was raised to 10 (Cunneen & White, 2011). It should be noted that in the two instances in which the age was altered, there were no sufficient grounds to justify the move, which has increased the rate of crime amongst young people aged below 10 for the reason that they are not liable for their actions (Marmo, Lint & Palmer, 2012). Any sober law-making process should be guided by reason, as well as clear-cut policies. However, the raising of the age in which one is protected by the doli capax standard was not guided by any clear principles, but was rather conducted arbitrarily (Marmo, Lint & Palmer, 2012). This was in the nation’s aim of creating some distance between the welfare requirements of the young people from juvenile systems.

An argument by proponents of the principle is that young people cannot participate in ‘mens rea’ (Cunneen & White, 2011). The meaning of this is that the intentions of people in that age bracket are not as harmful as they would be in the event that an elder person was to be convicted of the same criminal act. This argument is not valid in the sense that it is impossible to assess the intentions of certain actions, by adults or from junior people as described in this discussion, in Australia’s context. Justice systems are so strong that in case the prosecution team succeeds in proving that, the convict had knowledge of the offense committed; the minor will be sentenced for committing criminal acts. Ordinarily, one would be punished for making mistakes, which they are aware of the consequences. Therefore, such a move to punish offenders without consideration of their ages is advisable to ensure that law, and order is maintained within the society. This move also aids in the reduction of criminal activities because young people are easily scared away from committing offences by the impending consequences (Hudson & Marzilli, 2010). Such punishments enforced on grounds of knowledge of the consequences of various acts create vagueness in the application of the doli incapax principle. For example, if the prosecution proves the knowledge of the consequences of an action by a child aged less than 10, the minor will be culpable for punishment, irrespective of the protection, which the doli incapax is expected to provide. Therefore, this means that its application may not be valid at all times. Laws should be free of conflicts with other principles, as stipulated by other legislations.


Cunneen, C. & White, R. (2011) Juvenile Justice: Youth and Crime in Australia [4th Edition]. Melbourne: Oxford University Press.Finley, L. (2007). Juvenile justice. Westport, Conn.: Greenwood Press.

Hess, K., & Drowns, R. (2004). Juvenile justice. Belmont, CA: Wadsworth/Thomson Learning.

Hudson, D., & Marzilli, A. (2010). Juvenile justice. New York, NY: Chelsea House Publishers.

Leverich, J. (2009). Juvenile justice. Farmington Hills, MI: Greenhaven Press, Gale, Cengage Learning.

Marmo, M., De Lint, W., & Palmer, D. (2012). Crime and justice. Pyrmont, N.S.W.: Lawbook [for]Thomson Reuters (Professional) Australia.

Scott, E., & Steinberg, L. (2008). Rethinking juvenile justice. Cambridge, Mass.: Harvard University Press.


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