Criminal Capacity in Children Accused of Murder: Challenges in the Forensic Mental Health Assessment

RESUMO

Around the world there appears to have been an increase in child-perpetrated crimes; with South Africa being no exception. Of particular concern is the involvement of children in the perpetration of violent crimes; such as murder. This phenomenon is resulting in greater focus on the role of psychiatric and psychological testimony in the trials of accused youths. While mental health professionals have long been involved in the forensic assessment of adults; their role in the assessment of child accused is less well documented. As a result there is still a great deal of development and refinement needed in this area; in order that the task can be executed with more clarity and precision. Currently; South African law contains the presumption that a child under the age of seven years is doli incapax i.e. he or she cannot be held criminally responsible); while there is a rebuttable doli incapax presumption in the case of children between the ages of seven and 14 years. The age of the accused; together with developmental and social competence indices; are crucial variables that influence the acceptance or rebuttal of the doli incapax presumption. The paper discusses the challenges in the forensic mental health assessment of children accused of murder