Underage offenders: how old is old enough to be criminally charged?

Korean underage offenders aged below 14 are not subject to criminal charges according to the country's Juvenile Act. The Ministry of Justice is about to turn the tables around in the face of increasing underage crimes in recent years. Gettyimagesbank

Justice Ministry mulls lowering minimum legal age for criminal charges

By Ko Dong-hwan

On June 22, Justice Minister Han Dong-hoon visited a juvenile correctional facility for girls in Anyang. Fifty-six girls, all aged under 14, were isolated there from society. The minister was there to check how they were being fed, educated and treated for medical issues.

After looking over the environment, Han made the following propositions: what if some of these girls were criminally charged in court and had been sent to prisons for adults instead of juvenile facilities? Would they regret their misconduct and strive to start new lives? Or would their young, very malleable brains get twisted by the experience making the rest of their lives far from normal?

"Youths should be subject to education and correction," said Han on Wednesday. "They should be given opportunities rather than punishment." But he also said seemingly the opposite on the same day, "Citizens should be protected from youth crimes that are becoming more serious."

Han concluded that decision makers shouldn't simply lash out and punish children with criminal penalties for their delinquency but rather focus on policies to educate and protect them.

It seems that a big question in Han's mind is whether to lower the minimum legal age to be able to charge youths criminally from the present minimum age of 14. On June 14, the ministry launched a task force to study whether to lower the minimum age for criminal charges to 12 or 13. Each age had been suggested by a separate motion proposed at the National Assembly earlier this year.

The motion, if passed, will broaden the range of legal ages the country's Juvenile Act can charge a person criminally: from the current upper age limit of childhood, or 18, to 12 or 13, instead of 14. Lowering the legal age for the more stringent punishment of underage offenders was one of the pledges made by President Yoon Suk-yeol during his presidential campaign earlier this year.

Underage crimes began to grab the attention of the country's key authorities as their seriousness has visibly exacerbated during recent years.

In November 2021, three middle school students wrought havoc inside a restaurant in Daegu, destroying furniture and forcing customers to leave, after the restaurant owner warned them not to smoke in front of the restaurant. The youths told the owner during the commotion, "We wouldn't have to go to prison even if we killed someone."

Justice Minister Han Dong-hoon visits a juvenile correctional facility for girls in Anyang, Gyeonggi Province, June 22. Yonhap

A similar incident happened earlier that month, when 10 middle school students raided another Daegu restaurant and disrupted its business after the restaurant owner rebuked them for urinating in front of the restaurant. In Gwangju, two youths aged 13 stole 40 parked vehicles until they were caught in April of this year. Another group of children in Seoul broke into cashiers at unmanned, self-serve bakeries until a witness blocked their getaway route and called police in May of this year.

Juvenile crimes by those under the legal age unpunishable by criminal charges have been on rise. The figures for minors sent to juvenile courts in 2021 stood at 9,606, a 46-percent jump from 2016, according to the National Police Agency. Almost 40,000 underage criminals evaded criminal charges in the past five years. About 76 percent of them committed robberies or physical violence.

Other data by the justice ministry also showed that among the 171,368 underage criminals under the authority's monitoring, over 21,000 were repeat offenders from 2016 to 2021.

Tricky business

Observers have clashed as to whether the country's juvenile laws should be modified to lower the age for criminal charges or leave the laws as they are now. The dissenters argued that rather than punishing them, educating the children should be prioritized.

Those who agree on lowering the age mostly focus on the emotional impact of underage crimes on society. Some teachers at schools also agree to this premise as it becomes harder and harder to deal with delinquent students, given that physically beating students is also illegal.

On the contrary, large institutions concerned with juveniles like the National Human Rights Commission of Korea or UN Committee on the Rights of the Child have objected to it. The latter, in 2019, advised the country to keep the minimum age for criminal charges at 14 and not to treat those aged 13 or younger as criminals.

"Times have changed in today's society, where students are developing faster than before and their problematic actions are surfacing at earlier stages than before," Oh In-soo, a professor in the Department of Education at Ewha Womans University, told The Korea Times. "In addition to this reality, a string of news about sensational underage crimes seems to have stoked a public consensus that the minimum age should be lowered to punish more youths with criminal charges."

Oh, however, warned against comparing underage offenses directly to those committed by adults, calling it dangerous. Cognitive psychologists have concluded that youths have cognitive skills on a par with adults but, at the same time, are comparatively underdeveloped when it comes to recognizing the consequences of their dangerous actions, according to Oh. That's because the frontal lobe, the part of the human brain in charge of the ability to recognize rationally the consequences of one's actions, is still growing until the late teens.

Left, police in Masan, South Gyeongsang Province, caught a boy, 13, getting away with a stolen vehicle in 2014. He drove 40 kilometers for about one hour before getting caught by the police. Right, a middle school student strangles a senior woman's neck from behind during an altercation inside a subway in Uijeongbu, January 2021. Courtesy of Masan Jungbu Police Station, screenshot from YouTube

"At a glance, youths and adults seem not too different from one another but there are clear differences in terms of the process of human development," said Oh. "Youths, unlike adults, are under immense influence from the surrounding environment, so putting the entire responsibility on them for their wrongful actions is inappropriate."

To a prosecutor-turned-lawyer based in Seongnam, setting the age limitation for criminal charges isn't so meaningful. What's more important, he said, is figuring out the most appropriate solution for society at-large on a case-by-case basis, with less exclamation marks on age specifically.

"Let's say a 13-year-old committed a really serious crime. Will punishing that youth draw a major backlash that it's against social justice? Unlikely," the lawyer told The Korea Times on condition of anonymity. "Now, if another 13-year-old committed a petty crime, would it be okay to send the youth to a court? Not so much. What I'm saying is that every decision regarding punishing criminals should be based on what each specific case is all about. This rule applies the same regardless of whether the youths are sent to a juvenile correctional facility or a court, and regardless of whether one is dealing with underage offenders or adult offenders."

The lawyer said that the justice ministry's new task force should dig deep into legal precedents in other countries and carefully weigh between those who agree and disagree on lowering the minimum age before finalizing their decision.

Legal scholars, according to the lawyer, are divided over defining "punishment." Some argue it serves the purpose of "retribution," as in forcing criminals to take responsibility for the consequences of their crimes. Some explain that it serves a "purpose," saying that punishment is intended to improve an offender's personality and make them into a new person. The supporters of retribution say that treating youths and adults equally for the same crime amounts to justice. Whereas supporters of purpose say youths or children cannot be compared to adults who have already been formed.

"There is a diverse spectrum between these two types. But somewhere along the line, judiciary circles across the globe had reached an agreement that youths should be separately treated under the Juvenile Act, and (some others argued) that ages 13 or 14 would be okay to start criminal procedures on an individual," said the prosecutor-turned-lawyer. "The task force will have to rigorously study precedents across the world to reach the most reasonable grounds for Korean youths."