A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status Under Law
104 Pages Posted: 19 Jul 2008
Date Written: July 1, 2006
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
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