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The Child Incapacity Defense in Washington By Brett C. Trowbridge, Ph.D., J.D. This Article Supported by The Trowbridge Foundation Originally published in Washington State Bar News, Volume 54, No. 6., June 2000
At common law, children younger than seven years old were thought to be incapable of committing crimes, and children ages 14 and older were automatically tried as adults. The period between ages seven and 14 was the zone of presumptive incapacity, with a duty on the state to prove capacity beyond a reasonable doubt. The rebuttable presumption between age seven and 14 was strongest at age seven, and diminished in strength as the defendant approached 14. If the government could prove capacity the child was tried as an adult. [1] This changed in all In 1977, our current Juvenile Justice Act was enacted in response to concern that some juvenile courts were not holding juveniles accountable and/or were not punishing juvenile offenders. RCW 13.40.020(11) defines "juvenile offender" as any juvenile found by the juvenile court to have committed an offense. An “offense” is "an act designated a violation or a crime if committed by an adult under the law of this state”. [3] One of the stated purposes of the Juvenile Justice Act was to "make the juvenile offender accountable for his or her criminal behavior”. [4] Another stated purpose was to "provide for punishment commensurate with the age, crime and criminal history of the juvenile offender”. [5] A new emphasis was placed on the juvenile's criminal behavior, with more focus on punishment. Despite the Juvenile Justice Act's new emphasis on punishment and accountability, there are still substantial rehabilitative features, making it distinguishable from the adult system. Accordingly, in 1979, the Washington State Supreme Court held that juveniles are not entitled to jury trials as adults are. [6] Juveniles still enjoy some special benefits not enjoyed by adults, including the rule that a disposition of "guilty" to a juvenile offense is still not considered "conviction of a crime". [7] In 1980, the Washington State Supreme Court ruled that a juvenile could not be convicted of a felony. [8] A juvenile may be eligible for a diversion agreement in lieu of prosecution, something not allowed for adults under the 1984 Sentence Reform Act. Thus, the new Juvenile Justice Act had some provisions which made it seem more like the adult system than the old juvenile system which it supplanted, as it had the new emphasis on punishment and accountability and less focus on rehabilitation. On the other hand, it still contained some of the rehabilitative features, and juveniles had some special rights not available to adults. After enactment of the Juvenile Justice Act in 1977, the question arose whether the so-called "infancy defense" in RCW 9A.04.050 (which provides in part "children over the age of eight years and under 12 years are presumed to be incapable of committing crime") applied to juvenile adjudications, and if so, what standard of proof was required to rebut the presumption of incapacity. The Washington State Supreme Court accepted the consolidated appeals of two juveniles from separate adjudications, QD and MS, both of whom were less than 12 years old at the times of their offenses. QD was charged with first-degree trespass, and MS was charged with indecent liberties. Both trial courts had made findings of juvenile capacity. (A juvenile court's finding that the child had capacity will not be overturned upon review if there is evidence in the record from which a rational trier of fact could find capacity by clear and convincing evidence.) [9] In State v. QD, [10] the Washington State Supreme Court held that juveniles are entitled to the infancy defense. [11] Children under the age of eight at the time of their offenses cannot be prosecuted at all. The Court held that the standard of proof necessary to rebut the presumption of incapacity for children at least eight years old to less than 12 years old is “clear and convincing proof”, and the burden is on the state to present this proof. The State must prove that at the time of the act the child had sufficient capacity to understand the act (or neglect) and to know it was wrong. [12] Capacity must be found to exist separate from the specific mental element of the crime charged, although it is within the discretion of the trial court whether there must be a separate hearing on the issue of capacity. In QD's case, prior criminal behavior was the basis for attempting to prove capacity, so a separate hearing (before a different judge) was thought to avoid prejudice. In MS's case, the facts of the offense itself were used to show capacity, so a separate hearing would have been unduly repetitive. Thus, whether there should be a separate hearing depends upon the facts of each case. Where the Court is not alerted to the capacity issue until after the conclusion of the adjudicatory proceeding, the capacity decision can still be made if another judge decides it before a disposition is entered in the case. [13] The determination of capacity must be made in reference to the act charged, and is necessarily fact specific. [14] The QD Court pointed out that proof of only a general understanding of the justice system did not constitute proof that the respondent understood the wrongfulness of the act presently charged. [15] The Court did not actually reach the issue of whether QD did have capacity, as it reversed the case on other grounds (not enough proof of trespass). The Court held that secretive behavior in carrying out the act and telling the victim not to tell, were proof of capacity in MS's case, whose case was upheld. A juvenile's maturity can be used as a factor in determining capacity, as can proximity to 12, the age at which capacity is assumed; MS was less than three months away from her twelfth birthday at the time of her offense. It should be clear that after age twelve there is no incapacity defense, as it is the chronological age of the child at the time of the offense that matters, not the child's mental age. In State v. Jamison, [16] an expert testified that the respondent had a mental age of 11.7 years, despite being chronologically much older. The Jamison Court held, "Without question the legislature addressed itself to the chronological age of persons accused of crimes." RCW 9A.04.050 even provides that if there is a question about a child's age the court may direct that he be examined by physicians to estimate his chronological age. Realistically, it may be difficult for prosecutors to meet their burden to prove capacity by clear and convincing evidence if the crime itself does not contain clear elements of secrecy and/or an attempt to flee to avoid apprehension. Prosecutors may attempt to call caseworkers, teachers, etc., to testify to the child's moral understanding of the event at that time. If such witnesses do not exist or cannot be located, the state may have difficulty proving capacity. In my experience it is not unusual for minor offenses committed by eight to twelve year olds to be declined by prosecutors and never filed, or for these cases to be dismissed because of lack of such proof, especially if they only involve minor property offenses. The state may chose to prosecute only those children between the ages of eight and 12 whom they think have committed serious offenses such as sex crimes, robberies, assaults, and homicides. In its only major revisiting of the childhood incapacity defense since QD, the Washington State Supreme Court in 1998, listed seven factors courts should consider in determining whether the child had sufficient capacity to understand the act and to know it was wrong: [17] 1) the nature of the crime; 2) the child's age and maturity; 3) whether the child evinced a desire for secrecy; 4) whether the child told the victim (if any) not to tell; 5) any prior conduct by the child that is similar to the charged conduct; 6) the consequences that attached to that prior conduct; and 7) whether the child acknowledged that the conduct was wrong and could lead to detention. The Court also cited additional factors which may be considered: 1) the child's mental capacity and the effect of mental retardation on the child's ability to understand the wrongfulness of the conduct underlying the charge; 2) the degree to which the child had been educated with respect to the conduct underlying the charge; and 3) whether the child admitted the wrongfulness of the act, and whether that admission came before or after Miranda [18] admonishment, or before or after questioning about the incident by adults. The Court also, more specifically, described the test for incapacity, holding that a child may be found to have had capacity at the time of an offense even though the child did not know at that time that the conduct was illegal or had legal consequences --- it is sufficient that the child knew only that the conduct was morally wrong. In State v. James P.S., the eleven-year old respondent was accused of an alleged act of intercourse with his three-year old playmate. The trial court found that despite his mental retardation, the respondent had capacity. The Court of Appeals [19] reversed the trial court, holding that the evidence of incapacity had been insufficient, and that the state's burden of proving capacity is greater if sexual motivation is an element of the crime. James P.S. was charged with first-degree rape, which requires proof that the offender committed an act of sexual intercourse with a child younger than 12 years and more than 24 months younger than the offender. [20] The Court of Appeals held that "consequently the specific act which James P.S. must have understood (in order to have had capacity) was sexual intercourse." The Court concluded that, "On balance, it is not clear that James understood his conduct manifested sexual intercourse." The Court of Appeals noted that the crucial question was whether James knew at the time his conduct was legally wrong, stating the state carries a greater burden when it has to prove a child appreciates the wrongfulness of certain sexual acts. [21] The Washington State Supreme Court agreed there is a greater burden in sexual cases, and upheld the Court of Appeal's reversal of the trial court's finding of insufficient evidence of incapacity. The Supreme Court also specifically rejected the Court of Appeal's holding regarding the necessity of knowing illegality, ruling it is not necessary for the state to prove that the respondent knew the act was legally as well as morally wrong. [22] In a similar case of alleged first-degree child molestation involving an 11 year-old female respondent who was alleged to have touched the private area of a six-year-old girl, the Court of Appeals [23] reversed a trial court's finding of incapacity, holding that the specific act which the respondent must have understood was "sexual contact". Sexual contact is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party". [24] The Court held, "There was no testimony that she (the respondent) had learned anything about sexual desire--- a sophisticated concept for a pre-adolescent. Without such testimony, the evidence is not clear and convincing that (she) understood the nature of the act." [25] It appears that in cases of alleged sexual misconduct there must often be additional evidence showing that the child had been specifically taught that the behavior was wrong before the instant offense. In one case, a ten year old boy was accused of grabbing an eleven year old girl in a swimming pool, pulling down the bottom half of her swimming suit, putting his hands between her legs and saying, "I know you want it, bitch”. [26] A month later, during noon recess at school, he allegedly touched a 12 year-old girl on the crotch through her clothes. It also was discovered that the boy had sexual contact with two young boys a few months before the two incidents with the girls, which had resulted in his being treated by a social worker for his sexual problem. During his treatment, he acknowledged knowing that inappropriate sexual behavior is wrong. He had been seen by various experts who opined be had a broad knowledge of sexual terms and understood the wrongfulness of his conduct towards the girls. Given all of these facts, the Court held that there had been "clear, cogent and convincing" evidence of his capacity. RCW 13.40.140(9) provides that a juvenile's waiver of the right to remain silent "must be an express waiver intelligently made by a juvenile after the juvenile has been fully informed of the right being waived." Furthermore, when a juvenile is under the age of 12 the "juvenile's parent, guardian or custodian shall give any waiver”. [27] In practice this rule is frequently violated by the police, who either give no Miranda warnings, or give Miranda warnings in the absence of either parent and obtain purported "waivers", after which they question children under the age of 12 as to the capacity issue, without their parents being present, by asking them whether they knew what they did was wrong. In each of two consolidated cases, [28] the police questioned young boys under the age of 12 without the presence of their parents, and in both cases the boys made incriminating statements as to their knowledge that their alleged acts were wrong. The Court held that these improperly obtained statements are admissible in capacity hearings, although they are not admissible during the adjudication of guilt; the rationale was that Miranda and RCW 13.40.140(10) do not apply to "preliminary determinations", since "exclusion of illegally obtained evidence is not required in preliminary determinations in adult criminal cases. [29] This ruling seems to suggest that statements made by children under 12 years of age which were not preceded by a valid Miranda waiver, are still admissible at capacity hearings, a real advantage to the prosecution. Prosecutors sometimes advise police to question children as soon as possible outside of the presence of their parents as to whether they understood what they did was wrong, so that admissions as to capacity can be obtained. Indeed, often the only evidence the state will have to prove capacity may be what the child told the investigating officer. In one of the consolidated cases, State v. Pam, the Court held there had not been sufficient evidence to prove capacity when the only evidence presented on that issue had been the arresting officer's statement that the boy had told him (after a Miranda admonishment and a purported "waiver") that he knew breaking windows was wrong and would get him into trouble. The Court held that the boy may not have known before the Miranda warning and waiver that what he had done was wrong and could lead to detention, as, "Once the children were separated and given Miranda warnings it must have been obvious to Pam that he had done something wrong." [30] Thus, it appears that from the prosecution point of view, the arresting officer should be instructed to go ahead and talk to the child without his parents, even though that is statutorily prohibited, and should be instructed not to give Miranda warnings! After obtaining the child's statement to the effect he knew such acts would get him into trouble and could lead to detention, the officer can then Mirandize the child in front of his parents, obtain a parental waiver, and then attempt to gather information for the guilt phase by asking the child to confess to committing the crime. It seems odd that it is permissible for the police to interrogate some of the most vulnerable members of our society about an issue that is often entirely determinative of the case without Miranda, and without the presence of their parents or their lawyers. Although in my experience it has never occurred, one wonders whether under this logic it might be permissible for the respondent to be called by the prosecution at his own capacity hearing, and for him to be required to make incriminating statements about his moral understanding of his actions at the time! Given the evidence showing that young children are highly suggestible, and that when asked leading questions by authority figures they can be persuaded to say almost anything, [31] and given that children do have a right to remain silent in the situation in which the police officer is questioning them about their moral understanding of a crime, it seems to me the law should be changed such that Miranda warnings would be required before subsequent statements about the moral implications of the crime could be admissible at a capacity hearing. A question for public discussion might be what rationale there could be for warning adults about their rights, but not warning children about theirs. Parental intervention after the alleged act through instruction or punishment may also make it impossible to determine whether the child knew at the time of the act that it was wrong. In State v. KRL, [32] an eight-year-old boy was charged with residential burglary after allegedly entering a woman's house, removing a live goldfish from her fishbowl, cutting it into several pieces with a steak knife, and smearing it on the counter. He also allegedly clamped a plugged-in hair-curling iron onto a towel in the bathroom. When the police contacted KRL's mother, she confronted the boy, "beating him black and blue" with a belt. Later she took the boy to the police station where he admitted knowing the acts were wrong. The Court held, "When KRL was beaten 'black and blue' by his mother, he undoubtedly came to the realization that what he had done was wrong. We are certain that this conditioned the child, after the fact, to know that what he did was wrong. That is a far different thing than appreciating the quality of his or her acts at the time the act is being committed." [33] It seems clear that in order for the police to obtain useful evidence of capacity, they will have to speak with the child before his parents do! Given the difficulty in many cases for the State to prove capacity, prosecutors often elect to have cases involving young respondents diverted. However, diversion agreements entered into by a child under the age of 12 may not be used as criminal history if a child commits another offense after reaching age 12. In State v. Haaby the Court held, [34] "The practical effect of using these diversion agreements to increase the time of his confinement on a later charge is to punish Mr. Haaby for crimes he did presumptively not commit." In my experience, the state is not allowed to have its expert psychologist or psychiatrist examine the respondent without the agreement of the respondent's attorney, or until the respondent has certified as a witness his own mental health expert. At that point, the state is usually allowed to have its expert evaluate the youth. Experts for either side almost always administer intelligence and achievement tests to determine if the youth is relatively mature or relatively unsophisticated for his age. Experts take a history of the child, which may involve review of medical and/or school records, and usually involves speaking with the child's mother or other significant person. Most importantly, experts ask the child questions about the incident in an attempt to determine what the child understood in a moral sense at the time of the alleged incident. (Naturally this is a difficult proposition, since the child has already learned much about society's moral views about the incident since it happened, usually some months before the expert sees the child.) Experts may ask the child why the law against his alleged behavior exists; often children seem to have no idea why the behavior is considered wrong and illegal. The mental health expert should also delve into the area of whether the child has been discovered engaging in such behavior before, and if so what the consequences were at that time. The mental health expert should inquire whether anyone had told the child before the alleged incident that such behavior was wrong. Mental health experts are usually allowed to testify to the ultimate issue of whether, at the time of the incident, the child had juvenile capacity. Often such experts are confused as to what the legal standard is, confusing capacity with competency to stand trial, insanity at the time of the offense, [35] intellectual capacity, or other issues, and the Court should be encouraged to view their opinions critically. The standard of RCW 9A.04.050 itself is a rather subjective one--- whether the child had "sufficient capacity to understand the act or neglect, and to know that it was wrong"--- so reasonable lawyers, experts, and judges may apply the standard differently, and may well disagree as to their opinions about a given case. [1] Wayne R. LaFave @ Austin W. Scott, Jr. Criminal Law (2nd Ed.) 1986. [2] State v Schaaf, 109 Wn2d 1 (1987). [3] RCW 13.40.020(15). [4] RCW 13.40.010(2)(c). [5] RCW 13.40.010(2)(d). [6] State v. Lawley, 91 Wn.2d 654 (1979). [7] RCW 13.04.240. [8] In re Frederick, 93 Wn.2d 28 (1980) [9] State v. KRL, 67 Wn.App. 721 (1992) [10] State v. QD, 102 Wn.2d 19 (1984) [11] Around that same time, legal scholars were arguing that the increasing criminalization of the juvenile court requires use of the defense in order to fairly address the question of moral and criminal culpability. See Andrew Walkover, The Infancy Defense in the New Juvenile Court, 31 U.C.L.A. Law Review 503 (1984). [12] State v. QD, 102 Wn.2d 19, 26 (1984); RCW 9A.04.050 [13] State v. JB, 91 Wn.App. 659 (1998) [14] State v. QD, 102 Wn.2d (1984) at 26 [15] See also State v. KRL, 67 Wn.App. 721 (1992), which held that evidence of unrelated and relatively innocuous previous incidents of misconduct by an eight year old was not sufficient to overcome the presumption of incapacity. [16] State v. Jamison, 23 Wn.App. 454 (1979) [17] State v. JPS, 135 Wn2d 34 (1998) [18] Miranda v. Arizona, 384 [19] State v. James P.S., 85 Wn.App. 586 (1997) [20] RCW 9A.44.073(1) [21] See State v. Linares, 75 Wn.App. 404 (1994) [22] State v. JPS, 135 Wn.2d 34 (1998) [23] State v. Erika D.W., 85 Wn.App. 601 (1997) [24] RCW 9A.44.010(2) [25] ibid. [26] State v. SP, 49 Wn.App. 45 (1987). [27] RCW 13.40.140(10) [28] State v. Linares, 75 Wn.App. 404 (1994) [29] Ibid.; in a footnote the Washington State Supreme Court seemed to agree. See State v. JPS, 135 Wn2d 34 (1998), footnote 2, at page 1. [30] State v. Linares, 75 Wn.App. 404 (1994). [31] Ceci, SJ, Bruck, M (1995). Jeopardy in the Court Room: A Scientific Analysis of Children’s Testimonal. American Psychological Association, Washington, D.C. [32] State v. KRL, 67 Wn.App. 721 (1992) [33] ibid. 725 [34] State v. Haaby, 51 Wn.App. 771 (1988) [35] Incompetency to stand trial must be due to a "mental disease or defect", and relates to the child's state of mind at the time of trial or plea, not at the time of the offense. The test is whether the child understands the nature of the proceedings against him, and whether he is able to assist his attorney in preparing a defense. RCW 10.77.010(6). For insanity, a "mental disease or defect" is also required, and the respondent must establish by a preponderance that he was either (1) unable to perceive the nature and quality of the act charged, or (2) unable to tell right from wrong with reference to that act. RCW 9A.12.010(1)(a)(b). To show capacity, the state must establish by clear and convincing evidence that the child had sufficient capacity both to (1) understand the act or neglect, and (2) understand it was wrong. RCW 9A.04.050.Incapacity does not require a mental disease or defect, and is usually based on the child's lack of developmental sophistication and maturity.
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