January 8, 1998

The age of criminal capacity

By ANDREW BERGH
Special to the Journal

"Seven-year-old boy convicted of murder!"

Unless you read tabloids where everything is fair game, you won't see headlines like this at your local newsstand. That's because children under the age of eight are deemed incapable of breaking the law. That's right, no matter how many times that little monster down the street trashes your yard or tortures your cat, the police won't lay a finger on the brat unless she or he is at least eight years old.

This same immunity isn't enjoyed, however, by those unlucky youths who have reached their twelfth birthday. Juveniles in this age category are instead deemed perfectly capable of committing crimes, and will therefore find themselves in court just like adults if they run afoul of the law.

What's left is a third group of minors exactly in the middle -- children between eight and 11 years old. Under Washington law, there is a statutory presumption that kids in this age bracket are likewise incapable of breaking the law. But unlike the hard-and-fast rule that applies to children seven and under, this presumption vanishes if there is adequate proof the alleged offender had sufficient capacity to commit a crime. Removing the legalese, this means the child understood his or her act and knew it was wrong.

State v. J.F. provides an apt example. In that case, the issue was whether King County authorities could prosecute a 10-year-old boy who almost burned down a house.

On July 3, 1995, Arthur Beane was serving as a volunteer housewatcher for the Enumclaw police department, apparently as part of a citizen crime prevention program. After hearing voices near an abandoned house, Beane approached it and found two boys about to leave on their bikes. Both youths complied when Beane ordered them to stop.

The two lads were J.F., who was then 10 years old, and his cousin who was only five days shy of his twelfth birthday. (As in most juvenile cases, the court used only J.F.'s initials to protect his identity.)

Although older than J.F., the cousin was the one who readily spilled the beans. Against J.F.'s wishes, he told Beane a mattress was on fire on the second floor of the house and that he and J.F. had tried to put it out.

Beane called the Enumclaw police, who called the fire department. Then, after the fire was extinguished and the minors were taken into custody, the cousin said J.F. had used a lighter to start the fire.

While at the police station, J.F. admitted in writing that he'd set the mattress on fire. He was later charged with second degree reckless burning in the juvenile branch of King County Superior Court.

In view of J.F.'s tender years, the trial court held a capacity hearing to determine whether the prosecution could go forward. The witnesses included Beane and Lisa Lapansky, a public educator for the Enumclaw fire department.

After hearing the evidence, the trial court concluded that J.F. possessed the requisite capacity -- i.e., that he understood what he had done when he set the mattress on fire and that he knew this conduct was wrong. The youth then entered a guilty plea to set the stage for an appeal.

Our state appeals court put little weight in J.F.'s guilty plea. This after-the-fact acknowledgment, the court said, didn't prove that J.F. understood the wrongfulness of his conduct at the time he started the fire. But citing other testimony, the court ultimately held there was enough evidence to dispel the statutory presumption of incapacity.

First of all, the appeals court noted that J.F. had shown a "desire for secrecy" immediately after the fire. This followed from the fact that J.F. repeatedly told his cousin to shut up while the latter described the fire to Beane.

More significantly, the appeals court observed that J.F. first learned about the wrongfulness of setting fires when he was only seven years old.

On that point, Lapansky testified that she interviewed J.F. in 1992 at the request of his mother, who was concerned about J.F.'s curiosity with fire. She also described a second meeting in Oct. 1992 when J.F. was found at school with a lighter and lit cigarette. Both times, J.F. had received one-on-one lectures regarding fire safety matters, including a discussion about "good fires, bad fires."

Although J.F. and his appeal went down in flames, perhaps he learned something from this stern lesson. After all, you never know when today's budding pyromaniac will be tomorrow's arsonist.

Previous columns:

• Dastardly communications, 12-25-1997
• Don't hold your breath, 12-11-1997
• The swift, sure hand of justice, 11-27-1997
• A surgical cut in alimony, 11-13-1997
• Help for the guilty minded, 10-17-1997
• The visitation of meanness, 10-09-1997
• Unwarranted searches, 09-18-1997
• LA law: Golden State sees some unique suits, 09-04-1997