For they know not what they do: reintroducing infancy protections for child sex offenders in light of In re B.W.

Author:Schiraldi, Tara


The criminal culpability of young offenders has been an integral question in legal theories on criminal justice for centuries. At the heart of the debate are two competing state prerogatives: the interest in seeing the perpetrators of crimes punished for their actions, and the commitment to ensuring that punishment is only doled out to those with the intellectual capacity to understand the nature of their offenses.

In answer to these competing interests, the American and British common law systems incorporated a structure of infancy defenses into their proceedings against young respondents accused of criminal acts, which placed a burden on the state to prove that respondents between the ages of seven and fourteen were capable of forming criminal intent before they could be prosecuted. (1) This rule evolved out of the belief that, as a general rule, children under fourteen are incapable of fully understanding the ramifications of their actions. While this belief remains deeply engrained in American jurisprudence in a number of areas, with the advent of juvenile justice systems, infancy protections were stripped out of most proceedings against children under fourteen accused of criminal acts. (2) States primarily justified this change on the grounds that the capacity to form criminal intent is an irrelevant consideration within a civil system designated to rehabilitating wayward youth. (3)

With the trend towards more punitive juvenile justice policies in the 1980s and '90s, some state courts have begun to recognize the need for infancy defenses in juvenile courts to protect children from functionally punitive state action. (4) However, the vast majority of states maintain decades-old precedents banning infancy defenses. As a result, while there has been significant advocacy on the issue, the reinstatement of such defenses has seen little progress in the courts as such action requires a judiciary willing to make a serious departure from precedent on largely policy grounds. This Note suggests that the Texas Supreme Court case In re B.W. demonstrates an alternative means of pushing the law on juvenile sex offenses towards the recognition of infancy, without relying exclusively on nineteenth century common law and policy arguments.

In In re B.W., the Texas Supreme Court held that because of their inability to consent to Sex as a matter of law, minors under the age of fourteen may not be charged with the crime of prostitution. (5) In doing so, the Texas Supreme Court found that as a threshold issue, minors under the age of fourteen were legally incapable of "knowingly" engaging in prostitution under section 43.02 of the Texas Penal Code because "the legal capacity to consent ... is necessary to find that a person 'knowingly agreed' to engage in sexual conduct." (6) The court posited that statutory rape laws are an indication of a legislative determination that children under fourteen lack the capacity to grasp the moral ramifications of sexual activity. (7) In so doing, the court appears to use statutory rape laws as a legislatively established infancy standard, which precludes children under fourteen from being adjudicated delinquent for crimes involving sexual acts.

Since the decision was handed down, however, Texas courts have continued to find preadolescent juveniles legally capable of "intentionally or knowingly" committing sexual assault. (8) Texas courts have thus far succeeded in avoiding the question of whether or not the infancy defense accepted in In re B. W. extends to other sexual crimes committed by preadolescents on appeal. (9) However, the dissent's claim that the decision did preclude the continued prosecution of children under fourteen for all sexual crimes, (10) the wording of the decision, and equal protection principles all seem to suggest that the extension of the infancy defense to cover sexual assault is legally mandated.

This Note seeks to place In re B.W. within the framework of the reemergence of infancy defenses in juvenile courts and to suggest that the case represents an alternative method for reincorporating aspects of infancy into juvenile adjudications. The first part of this Note discusses the history of infancy defenses, beginning with the defense's inception in early common law and following the progression of precedent through the modern standard. The second part of this Note discusses the In re B.W. decision and the implications of that decision on children under fourteen charged with sexual assault. The final section looks at the potential impact that the recognition of sexual infancy could have on juvenile offenders nationwide, and it maintains that sexual crime, in particular, is ripe for the reintroduction of the criminal culpability of youth as a consideration to be weighed within the juvenile justice system.


    Although infancy defenses, in one form or another, have existed in Western legal systems throughout most of its history, these defenses are currently not available in most family courts within the United States. Understanding the trend away from the presumption of infancy requires an understanding of the history of common law infancy defenses and the movement away from common law practices, which occurred with the advent of separate juvenile courts. At the time of their creation, it was assumed that within these new rehabilitation-based systems, criminal culpability, which was central to the notion of just punishment at common law, was no longer a vital component in determining whether the state should intervene in the life of a wayward child. Put into this context, the recent reconsideration of infancy defenses by some jurisdictions can be seen as part of a broader trend in American jurisprudence towards reconceptualizing juvenile justice and recognizing the ways in which delinquency adjudications and sanctions have begun to become less and less distinguishable from adult criminal proceedings.

    1. The History of Infancy Defenses

      Laws identifying children as less criminally responsible for their actions because of their diminished mental capacity have appeared in penal codes dating back to the Code of Hammurabi. (11) Although the articulations and specifications of the infancy defense have varied over time, they all sought to draw a distinction between those who were doli incapax, (12) or lacked the capacity to form criminal intent, and those who could be held accountable for their crimes.

      Under Roman law, this line was drawn at seven, with children under that age deemed categorically incapable of forming criminal intent. (13) In Medieval Britain, youth could, and occasionally did, provide a basis for pardoning an offender, but these grants of mercy lacked the consistency and conceptual underpinnings present in Roman law. (14) The availability of automatic defenses for children built on the premise of doli incapax only emerged officially in the British Common Law system after findings of mens rea became a required component of criminal conviction in the thirteenth century. (15) Mens rea required not only that the actor intended to commit the offense in question, but also that the actor committed the offense as a "responsible moral agent for wicked purposes." (16) With the recognition of mens rea as a prerequisite for criminal liability, a number of defenses immerged to preclude those who acted without malicious intent from prosecution. (17) The infancy defense, which can be seen in cases dating back to 1302, (18) developed in this vein.

      Though not formalized until the end of the sixteenth century, (19) the infancy defense posits that, "infancy renders the child incapable of conviction for a criminal act as a threshold issue." (20) In Britain, at common law, children were placed into three categories (21) based on their potential for criminal culpability. Children younger than seven were recognized as incapable of forming criminal intent and, as such, could not be charged. (22) Children fourteen or older, on the other hand, were seen as fully accountable for their actions, and, until the development of juvenile courts in the late nineteenth century, faced the same punitive sentences as adults. (23) Children between the ages of eight and thirteen were viewed as having presumptive but rebuttable incapacity. (24) Under this framework, children aged eight to thirteen could not be convicted for criminal conduct unless the state could prove beyond a reasonable doubt that they acted out of malice. (25) Malice was a somewhat amorphous concept in British common law, with some legal scholars asserting that malicious intent behind the act in question needed to be demonstrated, and others declaring that malice could be established if the child was sufficiently mature to comprehend the consequences of their actions in general. (26)

      As with most American common law principles, the infancy defense was imported from Great Britain during colonization and remained in effect after the United States was formed. (27) Under American common law, the same rebuttable presumption of incapacity was extended to minors between the ages of eight and fourteen (28) with malice hinging solely on children's capacity to understand the wrongfulness of their actions, not maliciousness behind specific acts. (29) Though many children were held fully accountable and subjected to serious, often physical, punishments in the United States, (30) cases such as State v. Adams exemplified the serious effect infancy defenses could have when children between the ages of seven and thirteen faced criminal charges. (31) In that case, the conviction of a twelve-year-old boy accused of stabbing a seventeen-year-old was reversed on the grounds that the jury was not properly instructed that they needed to find "evidence strong and clear beyond all doubt and contradiction" to overcome the common law presumption that a twelve-year-old lacks the...

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