You can marry, vote and have sex at 16. So why do minors have reduced criminal punishment?

Malta’s Criminal Code obliges courts to reduce applicable punishments by one or two degrees in cases where the accused is aged between 16 and 18.

This means that criminal responsibility is diminished for young people who can otherwise vote, buy alcohol or give consent to sexual activity.

It was Magistrate Donatella Frendo Dimech who expressed incredulity over the situation when presiding over the arraignment of two 17-year-old youths accused of breaking a young boy’s leg during an assault in Valletta.

In a personal opinion, the presiding magistrate stated that she disagreed with the law as it currently stands. “So [at age 16] they’re good to marry, run for politics, work in business, but then they aren’t able to be charged as adults. It is a great injustice,” she said.

Her comment has rekindled the debate as to whether legislators should reconsider the concept of diminished criminal responsibility for young people between 16 and 18.

Psychologist Sandra Scicluna, a senior lecturer in criminology at the University of Malta, tells MaltaToday that she agrees with the court’s observations, but says harsher punishment is not the solution.

“The magistrate has a point, and I also say the same thing. Those age groups can do almost everything and then with regards to other things, the treatment of the 16-18 age group is murky,” she says.

But she also admits the issue is not clear cut because 16-year-olds are not fully developed.

“Their mental development, especially regarding the regulation of emotions, is still very much in the beginning,” Dr Scicluna says. “Scientifically speaking, the age group lacks the maturity to understand their actions, because their brain’s prefrontal cortex is not fully developed. It is fully formed at around 22 years of age.”

Help more than punishment

She argues that youths in these situations need help more than they need punishment. “Today a 12-year-old, a 13-year-old knows what’s wrong and what’s right, what they can and can’t do. I’m not saying that we should put 12 or 13 year olds in prison, but that we should provide [courts] the tools to control them when necessary.”

In other jurisdictions, there are facilities such as care homes for problematic children who need this type of control and care, explains the psychologist. They can be taken out of their house and placed where they can receive the care they need, she says.

“Children in such facilities are assessed on a regular basis and return to their homes when they’re ready. We had suggested this type of home in the past. It’s been suggested to various governments over the years. The problem is that it is a bit controversial. It’s not a prison but is interpreted by the public as a ‘prison for children’, so this leads to reluctance to introduce such a thing,” Scicluna says.

What these young people need is social help, she adds, but acknowledges the challenges that come with such an age group. “Adolescents naturally think that they know it all and that they are invulnerable and normally refuse help. But the answer is surely not putting them in prison. I absolutely disagree with it.”

Aware of what is right and wrong

Lawyer Veronica Spiteri, who regularly handles criminal and juvenile cases, acknowledges the difficulty of dealing with such cases. There is no clear-cut solution to the problem, she says, insisting every case has to be decided on its own merits.

“It is true that for certain people aged between 16 and 18 it is essential that if one commits a crime we should use the tools given to us by law to help them reform themselves. However, at 16 years of age, a person is well aware of the difference between right and wrong, between something that is legal and something that is illegal, and that is why we have the courts - to analyse the facts and find out what the ideal actions that should be taken in the circumstances.”

Spiteri stresses that it is also important for young offenders who are found guilty, to recognise their mistake and realise that for every action there are consequences.

Clutching at straws

Prof. Andrew Azzopardi, Dean of the Faculty for Social Wellbeing, on the other hand completely disagrees with the suggestion that the age of criminal responsibility should be lowered.

“To re-think criminal responsibility is clutching at straws,” he says. He argues that using other age-restricted activities, like smoking, sex and marriage, involving young people as a measure of consistency is unwise, because those restrictions are administered indiscriminately and without a scientific basis.

“I think there are other fundamental and serious issues here that need to be analysed... It shows that in the first place our social care system and our social justice system are in a mess,” he says.

The academic expresses concern that the way such cases are currently handled by the legal system potentially exposes young people to criminal influence, by introducing them to the prison system. “And we know why - because the judiciary are at a loss, and there are not enough resources they can engage with when faced with such matters.”

Azzopardi points out that the most recent case also prompted a very strong reaction directed towards the courts by the Prime Minister.

Robert Abela called on the courts to deliver judgments that reflect the good work police do to solve criminal cases. It was a reaction to the outcry that ensued in the wake of the Valletta assault.

Azzopardi says that society has failed over the years to address so many issues - child traumas, a growing mental health problem amongst young people, a violent economic model, a growing frustrated community lacking space and an increase in traffic, the lack of specialised community and residential services when it comes to behavioural issues of children, a mental health service lacking the basics in terms of residential care.

“And then we are surprised that a couple of yobs and pranksters lash out at other children – and our reaction is platinum, refusing them bail. If this is not damaged, I don’t know what is,” he says.