Courts have always had to deal with the dilemna of how to manage the breach of criminal laws by children, while acknowledging that children are immature and in need of nurture and protection. Complicating this factor is the variability among children in their maturation, which is subject to biological, familial and cultural influence. Criminal law has not found an adequate way to manage this difficulty. One way to assess the child offender’s capacity to comprehend the wrongfulness of his or her behavior is to consider the psychology of a child offender’s moral development.
Legal Context: All societies have acknowledged that childhood is a distinct state. The transition to adulthood is associated with the acquistition of responsibilities, including the capacity for criminal responsibility. To prove the criminal capacity of the child defendant, the prosecution must show that the child knew at the time of the offense that his or her actions were “seriously wrong”. The courts presume appropriately that chronological age is not a sufficient criterion by which to judge a child’s culpability, due to their wide variation in development and maturity.
Political context: There are shifting social and political attitudes toward child offenders, based on increasing community concerns about crime. There is pressure to hold children as equally responsible for their crimes as adults, and many children have been tried as adults. Nevertheless, age remains an inappropriate determinant of a child’s responsibility for their actions, and the moral development of children can be an important and legally relevant factor in determining a youth offender’s responsibility.
Psychology of Moral Understanding: The understanding of right and wrong starts to develop early in life, and depends on interactions with caregivers, usually within the family. Children as young as 2 years old are sensitive to adult standards of right and wrong, and are aware that rules exist regarding property, harm to others, toileting, and cleanliness. Young children will become aware that hurting another child on the playground is wrong, as they understand how others can feel and hurt. Thus, it appears that moral development of children forms from an awareness of rules and an awareness of feelings, thus it depends both on cognitive and emotional maturation:
Cognitive factors: With Cognitive maturation, children learn that there are rules that govern conduct and that there are consequences if the rules are broken. Kohlberg proposed six stages of social development based on Piaget’s studies of cognitive development.
- At the preconventional level, a child lacks the ability to have a shared or social viewpoint. Moral judgment is egocentric and is based on acting in one’s own best interests, and letting others do the same. The child does not break rules because they wish to avoid punishment. This is the moral developmental level until about age 9yo.
- At the conventional level, there is an awareness of shared norms and values that sustain relationships, groups, and societies. The child desires to live up to the roles and expectations of others, and of a desire to “be good”.
- At the postconventional level, according to Kohlberg, a person adopts a reflective perspective on social values and constructs moral principles that are universal in their application. Individuals are aware of and tolerate a variety of rules and opinions which they uphold in the interests of being impartial. In general, it is believed that this post conventional level is not achieved until a person is in their 20s.
Empathy: A child’s appreciation of how others may think and feel helps him or her understand how they may be affected by behavior. Knowing the emotional reactions of victims, together with the consequences of conduct enhances the child’s understanding of why some behaviors are unacceptable. To develop empathy, a child has to understand that other people have their own intentions, feelings and desires, different from their own. The development of empathy involves both cognitive and emotional components: The cognitive component includes the capacity to understand someone else’s situation and and to understand that the experience of others may be different from out own (social reciprocity). The emotional component consists of the emotional tendency to respond to another person’s emotional behavior with a parallel emotional reaction. (emotional reciprocity)
Guilt: Guilt arises when an empathic awareness occurs–such that a person realizes their own actions have caused a negative outcome for another person. A child may feel guilty or ashamed to have broken rules and harmed another person. Children less than 8 experience guilt differently from older children, since they may not have an internalized sense of wrongdoing and instead are responding to external rules and consequences. A young child’s guilt may not be accurate–they may feel too much guilt in causing events they are not responsible for, or they may not understand their role in causality. Feelings of guilt and shame depend on the child’s age, and the context in which these feelings are evoked.
Moral understanding in juvenile offenders: Adolescents raised in families characterized by psychosocial chaos are more likely to lack the relationships that are necessary to the development of an understanding of social roles and rules, and are less likely to experience the emotional support and nurturing that helps them develop an understanding of their own feelings, and to develop empathy for others. Youth from chaotic backgrounds are less likely to undertstand that consequences of their actions on others, and may have a diminished ability to understand right and wrong, and an impaired ability to consider the consequences of their actions.
To provide an impression to the court regarding a youth’s criminal responsibility, one must consider the factors affecting a child’s development, their capacity for cognitive and emtional awareness of the personal consequences and consequences for the victim of their actions.