• Reformatory approach suited for victims of social disorganisation
• A closer look into the murder of James Bulger

As there are different interpretations of the doctrine of “doli incapax” (incapable of criminal intent) in different legal jurisdictions, it is a reformatory approach and not rigorous punishment that is suitable for developing a child offender victimised by social disorganisation.

These observations and recommendations were made in a review on “A juvenile homicide: A criminological summary of the murder of James Bulger” which was authored by A.P. Rathnayake (attached to the General John Kotelawala Defence University's Law Faculty) and published in the Sri Lanka Journal of Forensic Medicine, Science and Law's 14th Volume's Second Issue in December of last year (2023).

Murder of james Bulger

In February, 1993, the murder of a two-year-old toddler named James Bulger took place in England. The focal point of the case was the commission of the crime of homicide by two juveniles who were 10-years-old at the time. It was a ruthless, gruesome and “senseless killing” which did not show any kind of a motive or an explanation. In the view of the United States Justice Department's “Juveniles who commit sex offences against minors”, the murders of children and youth are labelled as the ultimate juvenile victimisation. The murder of victim Bulger has two facets for inquiry, one legal and the other psychological. A Bangladeshi study points out that the terms “juvenile delinquency” and “crimes” are seen as legal definitions rather than behavioural and psychiatric symptoms. The concept of “nurture and nature” influences the behaviour of children.

Bulger was a two-year-old toddler when he wandered away from his mother at a shopping centre in Liverpool. The toddler was missing for a day and his mutilated dead body was found two days after the date of abduction. The toddler, per Born Evil's “What drove Bulger’s underage killers” was subjected to battery and was hit by a train. Doubts arose as to who committed the act and at first it was imagined that it was a crime committed by an adult. The closed circuit television camera footage of the shopping centre revealed evidence of the perpetrators, where, as noted by D.A. Green in “Suitable vehicles: Framing blame and justice when children kill a child”, it showed that two boys were taking the toddler out and that both were 10-year-old. Jon Venables and Robert Thompson are considered the youngest children to be convicted of murder in the United Kingdom (UK). 

Perpetrators

The two child perpetrators had abducted the toddler, tortured him by throwing stones, and finally left the toddler’s body on a railway line to show that the death was an accident. The series of events that had taken place in the course of the murder proves that they are cruel and remorseless. The case, as observed in H. Gavin's “Criminological and forensic psychology” raised questions on “what compels children to kill?” and “what induces a young, innocent person to commit a crime of evil and barbarity?”.

The acts of Venables and Thompson brought forth different questions relating to the reasons for committing such a murder. The child’s upbringing has a direct influence on the emotional instability that pushes him/her to kill. Particularly, the violent surrounding including the lack of financial security has resulted in the deviant behaviour of the juveniles. In the simplest sense, there is a difference between “nature” and “nurture”. Nurture is, according to M. Levitt's “Perceptions of nature, nurture and behaviour”, considered more influential than nature in the formation of criminal behaviour. Per C. Tomar and R. Kumar's “Effect of bad parenting on juvenile delinquency: A reflection”, the family and parents exert a considerable influence on children. When comparing the incidents faced by the two delinquents, the situation of Thompson was tragic as he was destined to live in a violent environment. He was constantly prey to bullying and violence inflicted by his father. Being the fifth son of a family of seven sons, Thompson spent a life without parental care as his mother was abusing alcohol and neglect. Thompson was constantly tortured and hit by his elder brother. Unlike Thompson, Venables lived in a peaceful family. However, he had a disposition to bully others.

Nature and nurture

Bad parenting is not a single type of behaviour or an action, but is considered a “chain of destructive acts”, that will affect the wellbeing of a child in a harmful way. The modes of ineffective parenting include insulting the child in front of others, not providing proper guidance, and the lack of communication between parents and children. As explained in J.D. Unnever, F.T. Cullen and R. Agnew's “Why is 'bad' parenting criminogenic? Implications from rival theories”, “bad parenting is ineffective and a risk factor for unhealthy social development which finally causes anti-social behaviour”. 

Thompson witnessed the worst type of parenting in comparison to Venables. Thompson’s parents were not successful. Thompson’s father tortured the family, and the child was a constant victim and a witness of physical and sexual violence. Venables’ parents were separated but that did not create violence. Venables’ mother was a victim of a psychiatric disorder and would have been overwhelmed to conform to the norms of parenting.

“Psychopathy” is a devastating psychiatric disorder characterised by antisocial traits such as untruthfulness and irresponsibility. Psychopaths also tend to lack feelings of remorse or empathy. It is devastating, as L. Halty and M. Prieto-ursúa's “Child and adolescent psychopathy: Assessment and treatment” notes, not merely due to the severity and association with violence but because it necessitates the use of a wide range of services, namely the prisons, courts, and places promoting mental health. In the view of Canadian forensic psychologist Robert D. Hare, psychopaths are “predators of their own kind”, and they use power, manipulation, and violence in controlling others. The injuries inflicted on the toddler Bulger by the 10-year-old boys were harsh. He was abducted, tortured, and murdered. Psychopathy is considered to be associated with genetics. However, external environmental factors may cause the aggravation of the existing “medical” condition. Venables had a history of being violent to younger children. Even though he lived in a positive environment and a privileged situation in comparison to Thompson, it depicts that there was manipulation between each other.

Justice David Harper in R (A Child) vs. Whitty (1993) (Supreme Court of Victoria, Australia) was of the view that “no civilised society regards children as accountable for their actions to the same extent as adults. The wisdom of protecting young children against the full rigour of the law is beyond argument”. In the context of England, the age of criminal responsibility is 10 years, and children under the age of 10 are capable of escaping prosecution on the ground that they are too young to comprehend the consequences of the act. The presumption is that a child is incapable of doing wrong or appreciating or understanding the seriousness of the action. The prosecution must rebut the presumption by proving that the child knew the fact that the act was seriously wrong and not merely mischievous. 

Assessment of crime

In the Bulger murder case, the prosecution dealt with four questions, namely, whether, on the day of committing the crime, did they know the difference between right and wrong, did they know that taking the child from the mother was wrong, did they know that injuring the child was wrong, and did they know that leaving the child on a railway was wrong? All the questions of the prosecution were answered in the affirmative. However, after the conviction, Section 34 of the Crime and Disorder Act of 1998 in the UK abolished the rebuttable presumption of doli incapax. However, the current law in England and Wales marks the age of criminal responsibility as 10 years. Children under 10 years are exempted from arrest whereas children between the ages of 10-18 years can be arrested. The approach of the law to a case of a child between the 10-18 age categories is prominently different from that of an adult.

The commission of a crime by a child would probably be the result of genetics and external factors such as the home environment, violence, psychopathy and mental disorders, and bad parenting. Nature is simultaneously decisive in determining the criminal behaviour of a person. The genes prominently drive the experiences of an individual. In essence, as explained in K. Reese's “Nature versus nurture: The timeless debate”, ‘genes’ are considered the basis of human development. However, Thompson’s behavioural signs point to that he has inherited some of the traits of his family members and that there is an influence of genetics. It was evident that both of the young perpetrators were more or less victims of social disorganisation, violence within the family unit, stress, and ineffective or bad parenting.

Both nature and nurture influence children in the commission of a crime. However, there is a greater inclination of children to absorb negativity by nurture. Rathnayake argues in conclusion that the nurture of a child is cogent evidence to impose the liability of a criminal act committed with the knowledge of the nature and consequences of the same.