(CNN) — The alleged murder of a 10-year-old girl by a 13-year-old boy in China has raised questions over the country’s criminal responsibility laws after it was announced the suspect cannot be charged.
The case, in the northeastern city of Dalian, has provoked intense debate over when and how young offenders should be punished.
Under China’s Criminal Law, those aged 14 to 18 can be held criminally liable if they have committed a serious offense, such as homicide, rape, drug trafficking, robbery or arson. Those over 18 can be charged criminally for any kind of offense.
But those under 14 can’t be charged and punished as criminals. They are either returned to their parents to be disciplined or — more rarely — sent to a correctional facility for young offenders, according to Michelle Miao, a criminal law expert at the Chinese University of Hong Kong.
The girl’s body was found on October 20, hours after her older brother dropped her off at a painting class, according to the state-run China Daily.
When the girl failed to return home, her parents went out to look for her, the newspaper reported. They found her body near their home and alerted police, who that night detained a 13-year-old boy. Police said the boy confessed to the killing following an interrogation.
Speaking to local news outlet Jinyun News, the girl’s father said the boy had brought his daughter to his home, sexually assaulted her and stabbed her to death. He then disposed of the body in a wooded area, according to her father.
Police said the boy wouldn’t be charged because he is under 14 years old and therefore hadn’t reached the age of legal responsibility, according to Article 17 of China’s Criminal Law. This legal doctrine — known as doli incapax, a Latin phrase meaning incapable of criminal intent or malice — aims to avoid sentencing a child as an adult, because he doesn’t have the maturity to appreciate the wrongfulness of what he has done.
The boy was instead sent to a juvenile rehabilitation center for three years. Miao said that punishment “is a relatively harsh measure, since it involves restricting his movements, making it akin to a form of detention.”
‘The demon is protected’
The case has generated heated debate in China. “The girl is dead but the demon who killed her is being protected!,” one user fumed on Weibo, China’s equivalent to Twitter, adding that the alleged perpetrator would be able to “start a new life in three years.”
Many comments called for young offenders to be punished more harshly. “It doesn’t matter if a person is 10 or 70 years old,” one user wrote. “Age should not be an excuse for crimes.” Another said he felt strongly that “there should be no age limit for those vicious criminal cases.”
Some state-run media outlets also weighed in. “When justice can’t be fully realized, some people might decide to take matters into their own hands to achieve what they believe to be fair,” one commentary on state-run CCTV said.
Miao said that the argument boiled down to a “philosophical debate between two views of society.”
“Some people will argue that victims must be protected at all cost by setting the age of criminal responsibility at a low level, while others will say that the rights of the young offender — and his ability to rehabilitate — must be secured by setting it higher,” she said, adding that positions have hardened in recent years as more and more very young offenders commit serious crimes.
By setting the threshold for criminal responsibility at 14 years old, China has placed itself in the camp of those wanting to secure young offenders’ rights. Most European countries start prosecuting young people from ages 12 to 16, with the notable exceptions of England, Wales, Northern Ireland and Switzerland, which have set the limit around 10 years old, according to Child Rights International Network.
In many countries and regions, it is much lower. In North Carolina, it is six years old and in 19 other US states it ranges between seven and 11 years old, according to the National Juvenile Defender Center. The US has a juvenile criminal justice system, but young offenders are often tried as adults by prosecutors in severe cases.
But many of these jurisdictions will only charge a child as a criminal if he or she has been proven to be sufficiently mature and capable of discerning between right and wrong, according to the United Nations Committee on the Rights of the Child, which recommends setting the minimum age at 12 or higher.
The fresh outcry over the law comes after a series of similar cases in China. In March 2019, a 13-year-old boy was detained in Jiangsu province for allegedly hacking his mother to death after an argument, according to a police statement. He was sent home and awarded a guardian until the state decides how to handle his case since he can’t be charged, according to Chinese state media.
Last December, Chinese media reported that a 12-year-old boy in Hunan had stabbed his mother to death. His case caused widespread outrage because he was allowed to return to school nine days after the murder. That same month, a boy from Hunan province, aged 13, reportedly confessed to police that he killed both his parents with a hammer. He was also released and allowed to return to school, due to his young age, according to Chinese media.
None of the children were held criminally responsible because they were all under 14, according to state-run China Daily.
However a revision of the law is now underway that will introduce harsher penalties. On October 21, the National People’s Congress, the country’s top legislative body, reviewed revised drafts of the Law on the Protection of Minors and the Law on the Prevention of Juvenile Delinquency.
The new texts introduce three levels of offenses, from bad behavior to serious crime. They list eight corrective measures, which also apply to children under 14, including being sent to a special school for juvenile delinquents. Their implementation will ensure that a young offender is not just sent home with no punishment, as is often the case today.
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