How about ‘age of legal accountability’?

A pending bill seeks to lower the age of criminal responsibility. Its main rationale is to deter criminal syndicates, or even adult criminals, from using children as cohorts in the commission of a crime.

The existing legal framework is a spectrum of “age of criminal responsibility at 15 years above” on one end, and “immunity from criminal responsibility at 15 years and below” on the other. Crimes are nonetheless committed by children 15 years old and below. Children in conflict with the law (CICL) belong to that end of the spectrum of “immunity from criminal responsibility.” This gap in the criminal justice system needs to be addressed. The proposal is to lower the age of criminal responsibility. The focus is retributive justice: Prosecute the CICL.

There is an alternative way to achieve the same objective without lowering the current age of criminal responsibility: Create another paradigm within the legal spectrum. It can be referred to as “age of legal accountability.” The focus would be restorative justice. The CICL will face legal accountability with disposition toward “compulsory juvenile reformation,” but not criminal prosecution. In retributive justice, the CICL are treated as criminals, while in restorative justice, they are  treated as victims.

As criminals, the CICL are haled to a family court, sometimes with adult offenders. If the CICL are charged with a crime punishable by imprisonment of not more than six years, they are qualified for a diversion program. The case would be dismissed upon the CICL’s admission to the diversion program. If not qualified, the CICL would be encouraged to plea bargain or plead guilty and get a suspended sentence. The CICL are referred to the Department of Social Welfare and Development for reformation, which could release the CICL to their parents subject to the former’s supervision.

If the CICL are reformed, their criminal liability is extinguished and their criminal records will attain confidentiality. The exploiter of the CICL would not be prosecuted for the abuse because the CICL could not testify against their coaccused while in a diversion program or reformation. Child exploitation in the commission of a crime will continue.

As victims, the CICL would be subjected to compulsory juvenile reformation as the satisfaction of their accountability to society for their legal infraction. They are not exempted from responsibility. In the process of the reformation, the CICL as victims could be encouraged to be  witnesses against their exploiter. It is a chance at self-redemption. The government’s witness protection program should be able to ensure the CICL’s safety.

The bill also proposes a shift from the current framework of “acted with discernment” to “unless acted without discernment.” The first is a qualifying circumstance for criminal responsibility to attach, while the second is an extenuating circumstance to avoid criminal responsibility, but subjects the CICL to a mode of intervention. Proof of the qualifying circumstance is the burden of the state, while proof of the extenuating circumstance is the burden of the CICL.

Shifting the burden of proof this way on the CICL and lumping them with ordinary criminals would violate a core principle of the UN Convention on the Rights of a Child, which is devotion to the best interests of the child. The unfortunate shift could result in massive charging in court of the CICL whose innocence could only be proved after trial. If diversion or voluntary plea of guilt will ensue, the CICL would lose the chance to prove the extenuating circumstance of lack of discernment. The child exploiter will remain scot-free, and children will be vulnerable to illegal, warrantless arrests and planting of evidence by unscrupulous law enforcers. Too, requiring the CICL to prove their innocence would be anathema to the constitutional right to be presumed innocent.

Frank E. Lobrigo is the senior vice president of the Philippine Judges Association.