The conceptualisation of children within the juvenile criminal justice system.
In 2006 to 2007, statistics have shown that there were approximately 3,500 crimes per 100,000 individual’s conducted by juveniles in Australia, almost double the number carried out by adults (Australian Institute of Criminology, 2009).
Before the 19th century, there was no category that separated juvenile offenders from adult offenders in Australia’s legal systems and children as young as six were sent to prison (Cunneen & White 2007; Carrington & Pereira 2009). In modern Australia however, it is widely accepted and acknowledged that juveniles should be treated differently within the criminal legal system so that their inexperience and immaturity can be considered (Richards, 2011). Consequently, juveniles are not dealt with as adults within the judicial system as they are treated more leniently than their adult counterparts.
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In Australia, the use of detention as a criminal punishment for youths is used as a last resort, after methods such as police cautioning and restorative youth programmes (Richards, 2011). Richards (2011a) suggests that youths are uniquely different to adults and as such this makes them incredibly receptive to rehabilitation in preventing them from further criminal acts. Richards (2011a, np.) argues that a‘range of factors, including juveniles’ lack of maturity, propensity to take risks and susceptibility to peer influence, as well as intellectual disability, mental illness and victimisation, increase juveniles’ risks of contact with the criminal justice system’.
This essay will attempt to examine how children are positioned and conceptualised within Australia’s criminal justice system in contrast to the UK criminal system, examining in particular the concept of ‘childhood’ and ‘child’ discourses as well as considering the potential abuse of the juvenile criminal justice system.
Discourses of childhood
Historically, three key dominant discourses have been conceptualised around childhood and the child, which influences the ways in which children’s behaviour, capabilities and inherent
characteristics can be understood (Kehily, 2009). The romantic discourse of childhood described by Jean Jacques Rousseau, views children as being innocent, pure and exuding inherent goodness, of which is harmed or corrupted through contact with the social world (Kehily, 2009). Romantic discursive representations perpetuates the understanding that children need to be protected from potential risk factors in the environment that could be dangerous to their inherent innocence. The acts of criminality from such a discourse are seen as being caused through the influence of the world around them (Kehily, 2009). As Richards (2011a) suggested, juveniles can be influenced by their peers into committing crimes, therefore the child’s inherent goodness has been tainted and corrupted. Also, in the digital age of modern childhood, a child’s early exposure to various forms of media such as the useful, but dangerous Internet, as well as games and movies with violence and crime increase the risk of corruption to their inherent goodness.
In contrast, puritan discourse portrays children as possessing an innate capacity for evil or wicked behaviours that is in need of constant checking, observation, reprimand and guidance (Kehily, 2009). This viewpoint regards children as in need of saving from themselves and that childhood is a time in which children must be given moral education to deter their natural potential for wickedness (Kehily, 2009). Richards (2011a) described children’s natural propensity to take risks as a possible factor in criminal behaviour and as such this can be viewed in relation to the puritan discourse.
The tabula rasa discourse postulated by John Locke however, portrays children as coming into the world as a blank slate that with effective education and support, can develop successfully into full adulthood (Kehily, 2009). From this viewpoint, factors such as poor education, family support and as Richards (2011a) describes ‘intellectual disability’ can be seen as leading children to crime. Each of these discourses have emerged in different periods of history as more dominant according to social and cultural factors; all three discourses however can be seen to different extents meshed within health care, education policy and practice and within the criminal justice system in addressing and preventing crime amongst young offenders.
Australia’s juvenile criminal justice system
The United Nations’ Standard Minimum Rules for the Administration of Juvenile Justice (1985) places importance on all nations developing laws, rules and provisions that are specifically catered to the needs of juvenile offenders, whilst simultaneously upholding their rights. All Australian jurisdictions (except Queensland) define a juvenile as being aged between 10 and 17; in Queensland it is between 10 and 16 (Richards, 2011). All children under the age of ten are viewed as being unable to be held legally responsible for their actions. This suggests that if a child under ten commits a crime then it is no fault of their own, but that something must have happened to them, such as Richards (2011a) highlighted, peer influence or lack of correct education, support and guidance. This concept of childhood utilises the discourses of romantic and tabula rasa, as children are being identified as inherently good, and only bad behaviour such as crime being committed through the influence of environmental factors (Kehily, 2009). The tabula rasa discourse is evident, in that it is the lack of appropriate guidance, education and support from others around the child, which has led to the child’s criminal behaviour (Kehily, 2009). Whilst Australia adopts such representations and discourses of children into its legal policies that determine how children are dealt with in the legal system, not all countries adopt the same viewpoint. In the United Kingdom, children can be seen to be viewed much differently, due to shifts of discursive representation following high profile criminal behaviours of children.
UK juvenile crime policy
Faulkner (2010) critiqued the UK Criminal Justice Act (1991), identifying that the UK criminal justice system had become ineffective, due to inconsistencies in how juveniles were dealt with judicially, stating there was a need to address increasing punishment. Faulkner (2010) stated that in response to rising juvenile crime, children should be dealt with as adults are treated, requiring increased punishment. In the UK, the murder of a two year old child, Jamie Bulger, in 1990, by a pair of ten years old boys led to the public outcry for a need for more severe punishments (Sereny, 1994). UK society was shocked by the criminal actions of the two young children and the media supported the public’s disbelief through representing the boys as child killers (Sereny, 1994). The puritan discourse could be seen in action, as the children were describes as being inherently evil, viewing the murder as premeditated and cold (Sereny, 1994; Kehily, 2009). Public pressure and media coverage cried out for the two ten year old boys to be treated as adults and jailed for life (Sereny, 1994; Franklyn & Petley, 1996). However, being juveniles, the boys were not subjected to life sentences in the UK criminal justice system, due to being viewed as being not fully responsible for their actions, they were however institutionalised with the aim of rehabilitation.
The case of Jamie Bulger’s murder provides good evidence of how different discourses can be used within society and social and political systems, such as the criminal justice system. These discourses conceptualise how children and their behaviour come to be understood and, in law, how such behaviour is dealt with (Kehily, 2009). In society and the media, the boys were viewed as cold blooded killers, innately possessing some flawed, evil mind that led to their murderous behaviour (Seveny, 1994). However, the UK judicial system used a contrasting romantic discourse in viewing that ‘something’ had caused the children to behave as they did and that in applying a tabula rasa discourse, the children could be educated through rehabilitation into returning to the ‘natural’ goodness associated with a romantic discourse of childhood (Kehily, 2009). If this crime had occurred however in Australia, being 10 years old, the children would have been unable to have been criminally charged or trialled for the murder of the two year old, as the law does not apply to ten year olds (Richards, 2011a). Australian law utilising a romantic discourse, viewing the children as wholly innocent and therefore the behaviour must be a result of external causes and influence (Kehily, 2009; Richards, 2011)
Interestingly in the UK, there has been an introduction of ‘parenting orders’ given to the parents of children who offend (Home Office, 2003). Demonstrating the romantic discourse similar to Australia, it locates the behaviour of the child as a result of inadequate and poor parenting. Parenting orders are designed to change the behaviours of the parents through re-education so that they can then influence and support their children more effectively (Crime and Disorder Act, 1991). This also demonstrates a shift to a tabula rasa discourse in which children are at risk of poor parenting and in need of moral guidance and education (Kehily, 2009). This use of romantic and tabula rasa discourses in the UK juvenile criminal justice system concurs with Australia’s approach to addressing juvenile crime also. Richards (2011a) identifies that juveniles due to their age are very responsive to rehabilitation to promote non-criminal behaviour. This portrays childhood as a particular time that requires education and guidance, a view upheld within tabula rasa discourse. Studies have even been used to offer evidence that childhood is a qualitatively different state of being to that of adulthood, in which children have not cognitively acquired the skills needed to make appropriate decisions, determine risk and regulate emotions (Steinberg, 2005). This reflects a romantic discourse, which conceptualises children as essentially innocent, because they have not acquired the necessary cognitive functions to correctly know right from wrong. Murray (2009) states that Australian policy must reflect the need for interventions that can help juveniles grow out of crime, so linking the need for youths to be educated, supported and rehabilitated so that they develop into lawful abiding citizens. Richards (2011) suggests that juveniles have greater complex needs than adults, due to their psycho-social immaturity, being more under the influence of peer group pressure, drugs and alcohol. Childhood is conceptualised within Australian policy as a time in which children need to be protected from external environmental factors that can harm their inherent goodness and innocence (Kehily, 2009). Criminal behaviour is therefore being understood as a result of society’s failure to save these children from the negative influences of the outside world (Murray, 2009).
Particular understandings have been identified through the examining of conceptualisation and discursive representation of childhood within the juvenile criminal systems of Australia and the United Kingdom. It is evident that children within the juvenile criminal system are not seen through puritan discourse. However, public anger to severe criminal offences such as murders undertaken by children can reflect this view of children as inherently evil. Through identifying how romantic, puritan and tabula rasa discourses are used within societies as a whole and perpetuated within media, policy and legislation, it has demonstrated how these can influence how children are treated with within the juvenile criminal systems. The dominant discourses found within Australia and the UK policies are that of a romantic and tabula rasa discourse, in which children are viewed as inherently innocent and good, criminal behaviour being seen as resulting from the influence of eternal environmental factors. In managing and preventing juvenile crime, children are seen to require guidance, support and rehabilitation, viewing children through the tabula rasa discourse. From the understandings identified above, wide acceptance and acknowledgement that juveniles are to be treated more leniently due to considerations of their immaturity and inexperience may lead to potential abuse of the system by various parties.
Potential abuse of the Juvenile Criminal Justice System
As modern day children are getting smarter and exposed to technology at a younger age, from the puritan discourse, exposure to knowledge of how courts make rulings regarding juvenile crime, either through the internet or peer influence, may lead to a child’s potential exploitation of the system knowing that they can get away with petty crimes easily. In some cases, a child may play into their immaturity and risk-taking propensity, to commit crime such as theft to satisfy material needs. Similarly from the tabula rasa and romanticised viewpoint, ‘intellectual disability’ as described by Richards (2011a) can be transformed into a view of ‘intellectually shrewd’ children abusing the system due to corruption through contact with the social world, ineffective moral education and support.
In extreme cases, there is also a possibility of adults or delinquent parents with knowledge of the system taking advantage of the innocence and immaturity of a child, either by threatening or inducing a child to commit crime on their behalf through means of rewards. This is perhaps a cause for concern due to the potential exploitation of such a loophole in the juvenile justice system.
While Richards (2011a) suggests that children are more receptive to rehabilitation in preventing them from further criminal acts, prevention is better than cure. So why allow it to happen in the first place and follow up with corrective measures even though children are more receptive to rehabilitation?
Support and guidance from family and school is ideal to keep a child in check. In scenarios where a child is from a broken family, where certain studies have shown a link between child delinquency and broken homes, schools should step in to provide more guidance and support for the child. Perhaps more can be done to educate children against such behaviour and raise awareness on this issue. Also, a helpline to combat scenarios where children are pressured into committing crime can potentially help.
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