Assessing Serious Harm Under the Doctrine of Doli Incapax: A Case Study

The doctrine of doli incapax has become controversial in recent decades, with attempts to remove it in some countries, and with varying upper and lower limits in age applied. One construction of doli incapax refers to the accruing maturity of the child to the point where mens rea is achieved. This article explores the tension between developmental and legalistic notions of how children come to understand what is “seriously wrong” and refers to a case study in which a developmentally delayed young person was charged with a sexual offence. The tension between chronological and mental age, the impact of mental age on moral reasoning, and how to assess retrospectively what a child might or might not apprehend as seriously wrong is discussed. The argument concludes with a call to consider legislative change to incorporate mental age when considering age thresholds for the presumption of doli incapax in Australia.