Infancy Defense

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The defense of infancy is a form of defense that excuses a defendant falling within the definition of an “infant” from criminal liability for their actions. An infant will fall below a specified age of criminal responsibility, which may either be defined by common law standards or codified by statute and will differ by jurisdiction.

Historically, an infancy defense recognizes that a person cannot be guilty of the requisite mens rea to commit criminal acts until they have reached a pre-defined age of criminal responsibility. At common law, the infancy defense served as a set of presumptions as opposed to an on/off switch of criminal liability. The presumption was conclusive for children under seven, prohibiting the prosecution from offering evidence that a child had the capacity to form the requisite mens rea to commit a criminal act. Children aged seven to fourteen, however, were presumed incapable of committing a criminal act, but this presumption was rebuttable by the presentation of evidence by the prosecution. Children fourteen and older were presumed capable of committing a crime, but the defense could rebut this presumption by producing evidence of a child’s immaturity or inability to understand the wrongfulness of his conduct.

Modern legal systems, however, have moved away from the common law approach of mental capacity as a function of age. Instead, courts may still treat infants as criminally liable but will provide a variable scale of punishment based on the age of the criminal actor. Each society is able to create a scale of criminal culpability based on age that reflects how it views the treatment of antisocial or criminal behavior in infants.[1] Most will define a minimum age of criminal responsibility and a specific age of adulthood, and will subject actors in between the two ages to punishment through a juvenile justice system designed to deal with criminal behavior in those not yet reaching adulthood.

Click here for a comprehensive overview of the age of criminal responsibility across the globe.

International Law

There are a number of conventions in international law regarding the treatment of infants in criminal justice systems.

Under the Rome Statute of the International Criminal Court, Article 26 provides that the minimum age for criminal jurisdiction in the ICC is 18.[2]

The International Covenant on Civil and Political Rights provides in Article 14 that criminal procedure shall take into account age and the desirability of promoting rehabilitation in punishing juveniles for criminal acts. Article 10 states that juvenile offenders should be segregated from adults and accorded “treatment appropriate to their age and legal status.” Article 6(5) prohibits signatories from applying the death penalty to persons under the age of 18 at the time of their criminal offense.[3]

The Convention on the Rights of the Child provides in Article 40 that signatories shall establish a minimum age of criminal responsibility and that children accused of criminal actions shall be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, taking into account the child’s age and the desirability of promoting reintegration into society. Article 37 prohibits signatories from applying the death penalty to persons under the age of 18 at the time of their criminal offense.[4]

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) sets out a handful of fundamental perspectives meant to improve the quality of life of juveniles. Rule 4.1 seeks to define the age of criminal responsibility at an appropriate level that takes into account emotional, mental and intellectual maturity, and the Rules more generally discuss the rights of a juvenile and the need for an appropriate juvenile justice system that treats infants differently than it treats adults.[5]

United Nations Rules for the Protection of Juveniles Deprived of their Liberty also sets forth a series of fundamental perspectives regarding the treatment of juveniles accused of crimes, including listing imprisonment as a last resort and requiring juvenile justice systems to uphold the rights and safety of juveniles and further to promote their physical and mental well-being. The PJDL then sets forth rules for signatories to follow, including defining all persons under the age of eighteen as juveniles, guidelines for the treatment of juveniles in custody, and standards for managing juvenile justice facilities covering topics from medical care to recreation.[6]

Specific Country Applications

Sri Lanka

In Sri Lanka, children or infants are considered to be any persons under the age of 18.[7] Under the Penal Code § 75, the minimum age of criminal responsibility is 8 years of age, and any act done by a child under 8 cannot be a criminal offense.[8] Penal Code § 76 provides that no acts done by a child over 8 but under 12 years of age will be a criminal offense if the child “has not attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion.” However, the determination as to a child’s maturity is made solely at the discretion of the judge, and children between the ages of 16 and 18 are treated as adults by the criminal justice system. Although Sri Lanka has signed the UN Convention on the Rights of the Child, there is still a concern for the actual treatment of children in the Sri Lankan criminal justice system – a lack of legal aid for minors and the imprisonment of people under the age of 18 in the same facilities as adults gives cause for concern.[9] Additionally, although the law provides for the establishment of juvenile courts under the Children and Yong Persons Act,[10] there has not been a country wide establishment of a functional juvenile court system.[11]

Sri Lanka does not allow for the death sentence for persons under the age of 18, and in lieu of the death penalty will sentence such person “to be detained during the President’s pleasure.”[12]

United States

In the United States, the minimum age of criminal responsibility is defined separately by each state. Only 15 states have set specific minimums, which range from 6 to 12 years of age, and the remaining states rely on the common law minimum age of 7.[13] The minimum age of criminal responsibility for federal crimes is 11 years of age.[14]

The United States reserved the right not to implement certain provisions of the ICCPR, including the prohibition on the use of the death penalty for crimes committed by people aged under 18. Additionally, the USA has not ratified the Convention on the Rights of the Child, leaving it and Somalia as the only two member nations of the UN that have failed to do so.[15]

However, in 2005, the U.S. Supreme Court ruled in Roper v. Simmons that it was unconstitutional to impose the death penalty for crimes committed while under the age of 18.[16] In a 5-4 decision the Supreme Court overturned its prior ruling in Stanford v. Kentucky[17] and overturned statutes in 25 states allowing for the death penalty for crimes committed by individuals under the age of 18. The Supreme Court held that capital punishment of individuals under the age of 18 was prohibited by the protection from “cruel and unusual punishment” in the Eighth Amendment. The Court employed an “evolving standards of decency” test, looking at a variety of sociological and scientific research regarding the relative immaturity of minors. Additionally, the Court noted a “national consensus” amongst the individual states in banning capital punishment of minors, and noted an international consensus to prohibit capital punishment of minors as indicated by the UN Convention on the Rights of the Child.

In the Roper dissent, Justice O'Connor famously spoke to the propriety of reliance on foreign and international law standards in making U.S. judgments, writing:

“[T]his Nation's evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement--expressed in international law or in the domestic laws of individual countries--that a particular form of punishment is inconsistent with fundamental human rights.“[18]

See Defenses


  1. For a further theoretical discussion on the history of the defense of infancy, see
  2. The Rome Statute, Res. ICC-ASP/2/Res. 3, U.N. Doc. A/CONF.183/9 (July 17, 1998), available at
  3. ICCPR, G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (1966), available at
  4. CRC, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (Nov. 20, 1989), available at
  5. The Beijing Rules, G.A. Res. 40/33, U.N. Doc. A/RES/40/33 (Nov. 29, 1985), available at
  6. G.A. Res. 45/113, U.N. Doc. A/RES/45/113 (Dec. 14, 1990), available at
  7. Age of Majority (Amendment) Act (No. 17 of 1989), available at
  8. Penal Code § 75 (2 of 1883), available at
  9. Sri Lanka Legal Reform and Human Rights, ASIAN HUMAN RIGHTS COMMISSION, available at
  10. Children and Young Persons Act (No. 48 of 1939), available at
  11. UNICEF State Party Report on Sri Lanka, available at
  12. Penal Code § 53; Code of Criminal Procedure § 281 (No. 15 of 1979), available at
  15. USA: Betraying the Young: Children in the US Justice System, AMNESTY INTERNATIONAL (Nov. 20, 1998), available for download at
  16. Roper v. Simmons, 543 U.S. 551 (2005), available at
  17. Stanford v. Kentucky, 492 U.S. 361 (1989), available at
  18. Roper v. Simmons, 543 U.S. 551 (2005) (O’Connor, J., dissenting), available at