A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status Under Law

Abstract

What are children capable of doing? In the legal context, the answer depends on the subject. The law decrees that a 16-year-old is "incapable" of consenting to a simple contract, yet, in many jurisdictions, can be prosecuted as an adult on the theory that he or she has committed a very "adult" crime. At one time, 18-21-year-olds were not able to vote, but could consent to enter the armed forces. In some contexts, the law imposes a categorical rule: a child of a certain age is or is not automatically capable of consent. In other contexts, the law requires an examination of the particular child; consent is determined on a case-by-case basis. In this article, I propose a consistent way of viewing children under the law, in light of psychology's understanding about how children think and behave. I specifically propose the creation of a Model Children's Code so that issues of juvenile capacity can be addressed in a consistent, logical, and coherent fashion.

Keywords: juvenile, capacity, child, children, underage, adult, code, consent, Piaget, consistency, competency