Saturday, March 17, 2012

AGE DOESN’T MATTER: Criminal liability for youth offenders

By Siesta-friendly

“A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability.” (Sec. 6, Republic Act No. 9344 or the "Juvenile Justice and Welfare Act of 2006")

That sole provision causes rejoice in the hearts of criminal minds, adult or not.  Whether juveniles break inside a home and clean it of all valuables, whether they rape, whether they murder, and whether they commit crimes repeatedly, they are free to do so at will, or possibly worse, at the direction of an adult.

Mahatma Gandhi is quoted to have said: "A nation's greatness is measured by how it treats its weakest members."  Some people associate the weakest with the children and the sick, but what about those weakened neither by age nor disease but by laws absolutely protecting criminals solely by the latter’s age, regardless of their discernment?

How do we protect ourselves from juveniles who know they are committing serious crimes and know they won’t be held liable? And what can we do about adult masterminds who conspire with juveniles for the latter to do their crimes for them?

What happens exactly to juveniles 15 years or younger commit even heinous crimes?  They are released immediately.  In providing for the Treatment Of Children Below The Age Of Criminal Responsibility, Sec. 20 of RA 9344 states:

If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); a local social welfare and development officer; or when and where appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise, known as "The Child and Youth Welfare Code". [Emphasis supplied.]

Note that juveniles 15 – 18 years old are also exempt from criminal liability except that they are subject to legal proceedings.  Section 6 of RA 9344 states:

“A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to [Diversion proceedings].

The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.”

The 2nd paragraph of Sec. 6 providing for civil liability is small consolation for the child offender’s victim/s.

Anyway, Sec. 31 lists the end result of Diversion proceedings which are Diversions programs to provide “adequate socio-cultural and psychological responses and services for the child. At the different stages where diversion may be resorted to, the following diversion programs may be agreed upon, such as, but not limited to:

(a)    At the level of the Punong Barangay:

(1)   Restitution of property;
(2)   Reparation of the damage caused;
(3)   Indemnification for consequential damages;
(4)   Written or oral apology;
(5)   Care, guidance and supervision orders;
(6)   Counseling for the child in conflict with the law and the child's family;
(7)   Attendance in trainings, seminars and lectures on:
(i)     anger management skills;
(ii)   problem solving and/or conflict resolution skills;
(iii) values formation; and
(iv) other skills which will aid the child in dealing with situations which can lead to repetition of the offense;

(8)   Participation in available community-based programs, including community service; or

(9)   Participation in education, vocation and life skills programs.

(b)   At the level of the law enforcement officer and the prosecutor:

(1)   Diversion programs specified under paragraphs (a)(1) to (a)(9) herein; and
(2)   Confiscation and forfeiture of the proceeds or instruments of the crime;

(c)    At the level of the appropriate court:

(1)   Diversion programs specified under paragraphs(a)and (b) above;
(2)   Written or oral reprimand or citation;
(3)   Fine:
(4)   Payment of the cost of the proceedings; or
(5)   Institutional care and custody.

Nowhere is there any mention of imprisonment even for 15-18 year old psychopaths.

The recent sodomization and murder of a 7-year-old girl by 2 teenagers - a 17-year old and Grade 5 student where the young criminals were immediately released from police custody – highlights the weakness of the law to protect society from child criminals.[1]  We have to wait until they commit a crime again when they are above 18 years before we can properly obtain justice. By not making them liable for such an atrocious crime, it will not be a surprise if they do something as cruel as they get older.

In some countries, not only would child criminals be held criminally liable for serious crimes but they may be tried in an adult court. Just saying.

Even the Convention on the Rights of the Child, to which we are a party, does not presume the minimum age at which children are deemed guiltless -

3.      States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a)    The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;


This is not a call to completely forget adolescence – with its still immature and evolving nature - in the interest of retribution.  We’re not even calling for retribution. Yet, although rehabilitation of the juvenile criminal is our suggested priority over retribution for his criminal act, the principle of accountability must not be abandoned.  

And juveniles must be held accountable as such. Imprisoning them with adults is not going to help them nor society.  Our adult prisons are not known for their rehabilitative atmosphere – they are oppressive enough to adults.

For everyone’s sake, accountability, rehabilitation - and preventing recidivism - must be balanced in the treatment of juvenile criminals.  Republic Act No. 9344 or the "Juvenile Justice and Welfare Act of 2006 does not help balance those ideals by eliminating criminal liability solely be reason of age, regardless of discernment and even past behavior. Criminal youths should not be allowed to be protected by the law when society needs protection from them.


[1]  Alquitran , N., & Balagtas See, A. (2012, March 12). 2 teens in rape-slay of girl, 7, nabbed, to be freed. Retrieved from


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