Wednesday, April 05, 2006

Tapu Misa: Young offenders accorded a false level of maturity

She is taller than me, and wears bigger shoes. So, of course, she considers herself an adult now. Last year, the school librarian wouldn't let her take out "senior fiction", deeming books like Once Were Warriors, which she'd read at intermediate, too mature for her tender sensibilities. This year, she considered herself old enough to see Brokeback Mountain without the benefit of my parental guidance.

The grown-ups in the household are still coming to terms with this coming of age. It's not as if we've had a formal ceremony marking her passage from childhood to adulthood - and given the fact that she still sulks like a teenager, we're not sure the time has arrived.

How old is old enough? When exactly does she cease to be a child? The manual is a little murky on this point.

At 14, she was old enough to babysit and watch TV past 8.30pm, which is when adults-only programming starts on free-to-air television. At 15, she's now old enough to get her learner's licence. She can be excluded from school if she's naughty, but she can't be expelled until she's 16, when she'll also be old enough to consent to sex, although not if I have anything to do with it. At 18, she'll be old enough to buy liquor, vote, marry and join the Army without my permission.

The Children, Young Persons and Their Families Act 1989 defines a child as a boy or girl under the age of 14, but the United Nations Convention on the Rights of the Child, to which New Zealand is a signatory, defines a child as any person under the age of 18.

But a child can be prosecuted for murder and manslaughter at 10, for all other offences at 14, and, at 17, is considered old enough to face the full force of an adult court.

It is inconsistent and confusing to say the least. We are keen as a society to protect vulnerable children from adult predators, but we aren't quite as understanding when it comes to crimes and misdemeanours committed by children.

If anything, we are becoming much less tolerant, according to a senior British police officer who heads youth crime for the Metropolitan Police, Deputy Assistant Commissioner Brian Paddick. He thinks society is much less willing to put up with "exuberant" youthful behaviour than it was 20 or 30 years ago.

This is perfectly illustrated by the creation of Asbo -Anti-Social Behaviour Orders - civil orders which can result in criminal punishment if breached. Last year, the British Independent newspaper reported that children, some as young as 10, had become the prime target of the more than 7000 orders issued since Asbo was introduced in April 1999.

Children's advocates complain that instead of protecting communities from crime, Asbo had made it "a crime to be irritating", and was criminalising children for being children.

Asbo's fans appear to have little understanding of the difference between children and adults, and neither, it seems, does New Zealand First MP Ron Mark, whose Young Offenders (Serious Crimes) Bill is going through to select committee stage.

Mark's bill proposes tougher penalties for what he calls "youth offenders" - actually, children, by most definitions. He wants the age of prosecution to be lowered from 14 to 12 for serious offences - but his proposal will mean that more children will find themselves in adult courts for lesser offences, those punishable by imprisonment of three months or more, or a fine of $2000-plus.

Mark says the principle behind his bill is " 'adult punishment' for 'adult crimes' " - which is exactly what is wrong with it. Children and young people aren't adults, no matter how they look, or how sophisticated they might appear.

They're not even " 'small adults' to whom a cut-down version of the adult court may be applied," argues the Principal Youth Court judge, Andrew Becroft, but "young people at varying states of emotional, intellectual and cognitive immaturity".

Studies in the United States by the National Institute of Health and UCLA's Laboratory of Neuro Imaging, suggest what most parents have known all along: that teenagers' brains are wired differently, leading them to take more risks and seek higher levels of stimulation.

The studies suggest the region of the brain that inhibits risky behaviour is not fully formed until the age of 25 in men, and one or two years earlier in women. Which explains a lot.

Politicians in some US states have already used brain development research to back up law changes for drivers under the age of 18, banning cellphone use and restricting the number of passengers they can carry.

Brain development studies were also cited in a case before the US Supreme Court last year, which resulted in a decision that effectively bans the death penalty for offenders under 18. In the US at the time, nearly 10,000 offenders were serving life imprisonment for crimes committed before they were old enough to vote.

A majority of the court acknowledged that young people are immature and irresponsible, and were more susceptible to negative influences, including peer pressure.

"Even a heinous crime committed by a juvenile is not evidence of irretrievably depraved character," said Justice Anthony M. Kennedy.

In a speech to the Commonwealth Law Conference in London last year, Andrew Becroft called for a principled approach to youth justice, which had become a "political hot potato in many jurisdictions".

Research shows that most children and young people who offend were likely to become law-abiding citizens if kept away from the criminal justice system. "Shocking youth crimes lead to calls for the legal system to get tough on young offenders and knee-jerk responses are inevitable.

"But there is no magic bullet for this complex problem and responses to it must be principled and based on sound psychological research if the rights of children and young people are to be safeguarded."

* Tapu Misa is taking a break and will return in July.

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