June 2000

The Child Incapacity Defense in Washington

by Brett Trowbridge, Ph.D., J.D.

At common law, children younger than seven years old were thought to be incapable of committing crimes, and children aged 14 and older were automatically tried as adults. The period between ages seven and 14 was the zone of presumptive incapacity, with a duty on the state to prove capacity beyond a reasonable doubt. If the government could prove capacity, the child was tried as an adult.1 

This changed in all United States jurisdictions around the turn of the century. Washington created a separate juvenile court system in 1905, and passed comprehensive legislation concerning the juvenile system in 1913.2 The underlying theory of the legislation was rehabilitation, with emphasis on attending to the welfare of the offending child. Juvenile offenses were not thought to be crimes, so after 1913 there was little need for special rights for very young children under this parens patriae system, and the child incapacity defense went into disfavor.

In 1977, our current Juvenile Justice Act was enacted in response to concern that some juvenile courts were not holding juveniles accountable. RCW 13.40.020(11) defines "juvenile offender" as any juvenile found by the juvenile court to have committed an offense. An "offense" is an act designated a violation or a crime if committed by an adult under the law of this state.3 One of the stated purposes of the Juvenile Justice Act was to "make the juvenile offender accountable for his or her criminal behavior."4 Another stated purpose was to "provide for punishment commensurate with the age, crime and criminal history of the juvenile offender."5 

Despite the Juvenile Justice Act’s new emphasis on punishment and accountability, there are still substantial rehabilitative features, making it distinguishable from the adult system. Accordingly, in 1979 the Washington State Supreme Court held that juveniles are not entitled to jury trials as adults are.6 Juveniles still enjoy some special benefits not enjoyed by adults, including the rule that a disposition of "guilty" to a juvenile offense is still not considered a "conviction of a crime."7 In 1980, the Washington State Supreme Court ruled that a juvenile could not be convicted of a felony.8 

After enactment of the Juvenile Justice Act in 1977, the question arose whether the so-called "infancy defense" in RCW 9A.04.050 (which provides in part that "children over the age of eight years and under 12 years are presumed to be incapable of committing crime") applied to juvenile adjudications, and if so, what standard of proof was required to rebut the presumption of incapacity. The Washington State Supreme Court accepted the consolidated appeals of two juveniles from separate adjudications, QD and MS, both of whom were less than 12 years old at the times of their offenses. QD was charged with first-degree trespass, and MS was charged with indecent liberties. Both trial courts made findings of juvenile capacity.9 

In State v. QD,10 the Washington State Supreme Court held that juveniles are entitled to the infancy defense.11 The Court held that the standard of proof necessary to rebut the presumption of incapacity for children at least eight years old to less than 12 years old is "clear and convincing proof," and the burden is on the state to present this proof. The state must prove that at the time of the act the child had sufficient capacity to understand the act (or neglect) and to know it was wrong.12 Capacity must be found to exist separate from the specific mental element of the crime charged. In QD’s case, prior criminal behavior was the basis for attempting to prove capacity, so a separate hearing (before a different judge) was thought to avoid prejudice. In MS’s case, the facts of the offense itself were used to show capacity, so a separate hearing would have been unduly repetitive. Where the court is not alerted to the capacity issue until after the conclusion of the adjudicatory proceeding, the capacity decision can still be made if it is decided by another judge before a disposition is entered in the case.13  The determination of capacity must be made in reference to the act charged, and is necessarily fact specific.14 The QD Court pointed out that proof of only a general understanding of the justice system did not constitute proof that the respondent understood the wrongfulness of the act presently charged.15 

The Court held that secretive behavior in carrying out the act and telling the victim not to tell were proof of capacity in MS’s case, whose case was upheld. A juvenile’s maturity can be used as a factor in determining capacity, as can proximity to age 12, the age at which capacity is assumed. It should be clear that after age 12 there is no incapacity defense, as it is the chronological age of the child at the time of the offense that matters, not the child’s mental age. In State v. Jamison,16 an expert testified that the respondent had a mental age of 11.7 years despite being chronologically much older. The Jamison Court held, "Without question the legislature addressed itself to the chronological age of persons accused of crimes."

Realistically, it may be difficult for prosecutors to meet their burden to prove capacity by clear and convincing evidence if the crime itself does not contain clear elements of secrecy and/or an attempt to flee to avoid apprehension. Prosecutors may attempt to call caseworkers, teachers, etc. to testify to the child’s moral understanding of the event at that time. If such witnesses do not exist or cannot be located, the state may have difficulty proving capacity. The state may choose to prosecute only those children between the ages of eight and 12 who they think have committed serious offenses such as sex crimes, robberies, assaults and homicides.

In its only major revisiting of the childhood incapacity defense since QD, the Washington State Supreme Court, in 1998, listed seven factors courts should consider in determining whether the child had sufficient capacity to understand the act and to know it was wrong:17 1) the nature of the crime; 2) the child’s age and maturity; 3) whether the child evinced a desire for secrecy; 4) whether the child told the victim (if any) not to tell; 5) any prior conduct by the child that is similar to the charged conduct; 6) the consequences that attached to that prior conduct; and 7) whether the child acknowledged that the conduct was wrong and could lead to detention. The Court also cited additional factors which may be considered: 1) the child’s mental capacity and the effect of mental retardation on the child’s ability to understand the wrongfulness of the conduct underlying the charge; 2) the degree to which the child had been educated with respect to the conduct underlying the charge; and 3) whether the child admitted the wrongfulness of the act, and whether that admission came before or after Miranda18  admonishment, or before or after questioning about the incident by adults. The Court also more specifically described the test for incapacity, holding that a child may be found to have had capacity at the time of an offense even though the child did not know at that time that the conduct was illegal or had legal consequences — it is sufficient that the child knew only that the conduct was morally wrong.

In State v. James P.S., the 11-year-old respondent was accused of an alleged act of intercourse with his three-year-old playmate. The trial court found that despite his mental retardation, the respondent had capacity. The Court of Appeals19 reversed the trial court, holding that the evidence of incapacity had been insufficient, and that the state’s burden of proving capacity is greater if sexual motivation is an element of the crime. James P.S. was charged with first-degree rape, which requires proof that the offender committed an act of sexual intercourse with a child younger than 12 and more than 24 months younger than the offender.20 The Court of Appeals held that "consequently the specific act which James P.S. must have understood (in order to have had capacity) was sexual intercourse." The Court concluded that, "On balance, it is not clear that James understood his conduct manifested sexual intercourse." The Court of Appeals noted that the crucial question was whether James knew at the time his conduct was legally wrong, stating that the state carries a greater burden when it has to prove a child appreciates the wrongfulness of certain sexual acts.21 The Washington State Supreme Court agreed there is a greater burden in sexual cases, and upheld the Court of Appeal’s reversal of the trial court’s finding of insufficient evidence of incapacity. The Supreme Court also specifically rejected the Court of Appeal’s holding regarding the necessity of knowing illegality, ruling it is not necessary for the state to prove that the respondent knew the act was legally as well as morally wrong.22 

In a similar case of alleged first-degree child molestation involving an 11-year-old female respondent who was alleged to have touched the private area of a six-year-old girl, the Court of Appeals23 reversed a trial court’s finding of incapacity, holding that the specific act which the respondent must have understood was "sexual contact." Sexual contact is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party."24 The Court held, "There was no testimony that she (the respondent) had learned anything about sexual desire — a sophisticated concept for a pre-adolescent. Without such testimony, the evidence is not clear and convincing that (she) understood the nature of the act."25 It appears that in cases of alleged sexual misconduct there must often be additional evidence showing that the child had been specifically taught that the behavior was wrong before the instant offense."26 

RCW 13.40.140(9) provides that a juvenile’s waiver of the right to remain silent "must be an express waiver intelligently made by a juvenile after the juvenile has been fully informed of the right being waived." Furthermore, when a juvenile is under the age of 12, the "juvenile’s parent, guardian or custodian shall give any waiver."27 In practice this rule is frequently violated by the police, who either give no Miranda warnings, or give Miranda warnings in the absence of either parent and obtain purported "waivers," after which they question children under the age of 12 as to the capacity issue without their parents being present by asking them whether they knew what they did was wrong. In each of two consolidated cases28 the police questioned young boys under the age of 12 without the presence of their parents, and in both cases the boys made incriminating statements as to their knowledge that their alleged acts were wrong. The Court held that these improperly obtained statements are admissible in capacity hearings, although they are not admissible during the adjudication of guilt; the rationale was that Miranda and RCW 13.40.140(10) do not apply to "preliminary determinations," since "exclusion of illegally obtained evidence is not required in preliminary determinations in adult criminal cases."29 This ruling seems to suggest that statements made by children under twelve year old, which were not preceded by a valid Miranda waiver, are still admissible at capacity hearings, a real advantage to the prosecution. Prosecutors often advise police to question children as soon as possible outside of the presence of their parents as to whether they understood what they did was wrong, so that admissions as to capacity can be obtained. Indeed, often the only evidence the state will have to prove capacity may be what the child told the investigating officer.

Parental intervention after the alleged act through instruction or punishment may also make it impossible to determine whether the child knew at the time of the act that it was wrong. In State v. KRL,30 an eight-year-old boy was charged with residential burglary after allegedly entering a woman’s house, removing a live goldfish from her fishbowl, cutting it into several pieces with a steak knife, and smearing it on the counter. He also allegedly clamped a plugged-in hair-curling iron onto a towel in the bathroom. When the police contacted KRL’s mother, she confronted the boy, "beating him black and blue" with a belt. Later she took the boy to the police station where he admitted knowing the acts were wrong. The Court held, "When KRL was beaten ‘black and blue’ by his mother, he undoubtedly came to the realization that what he had done was wrong. We are certain that this conditioned the child, after the fact, to know that what he did was wrong. That is a far different thing than appreciating the quality of his or her acts at the time the act is being committed."31 It seems clear that in order for the police to obtain useful evidence of capacity, they will have to speak with the child before his parents do!

In my experience, the state is not allowed to have its expert psychologist or psychiatrist examine the respondent without the agreement of the respondent’s attorney, or until the respondent has certified as a witness his own mental health expert. At that point, the state is usually allowed to have its expert evaluate the youth. Experts for either side almost always administer intelligence and achievement tests to determine if the youth is relatively mature or relatively unsophisticated for his age. Experts take a history of the child, which may involve review of medical and/or school records, and usually involves speaking with the child’s mother or other significant person. Most importantly, experts ask the child questions about the incident in an attempt to determine what the child understood in a moral sense at the time of the alleged incident. Experts may ask the child why the law against his alleged behavior exists; often children seem to have no idea why the behavior is considered wrong and illegal. The mental health expert should also delve into the area of whether the child has been discovered engaging in such behavior before, and if so, what the consequences were at that time. The mental health expert should inquire whether anyone told the child before the alleged incident that such behavior was wrong.

Mental health experts are usually allowed to testify to the ultimate issue of whether the child had juvenile capacity at the time of the incident. Often such experts are unclear as to what the legal standard is, confusing capacity with competency to stand trial, insanity at the time of the offense,32 intellectual capacity, or other issues, and the court should be encouraged to view their opinions critically. The standard of RCW 9A.04.050 itself is a rather subjective one — whether the child had "sufficient capacity to understand the act or neglect, and to know that it was wrong" — so reasonable lawyers, experts and judges may apply the standard differently, and may well disagree as to their opinions about a given case.

1 Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law (2nd Ed.) 1986.

2 State v. Schaaf, 109 Wn2d 1 (1987).

3 RCW 13.40.020(15).

4 RCW 13.40.010(2)(c).

5 RCW 13.40.010(2)(d).

6 State v. Lawley, 91 Wn.2d 654 (1979).

7 RCW 13.04.240.

8 In re Frederick, 93 Wn.2d 28 (1980).

9 State v. KRL, 67 Wn.App 721 (1992).

10 State v. QD, 102 Wn.2d 19 (1984).

11 Around that same time legal scholars were arguing that the increasing criminalization of the juvenile court requires use of the defense in order to fairly address the question of moral and criminal culpability. See Andrew Walkover, The Infancy Defense in the New Juvenile Court, 31 U.C.L.A. Law Review 503 (1984).

12 State v. QD, 102 Wn.2d 19, 26 (1984); RCW 9A.04.050.

13 State v. JB, 91 Wn.App 659 (1998).

14 State v. QD, 102 Wn.2d (1984) at 26.

15 See also State v. KRL, 67 Wn.App 721 (1992), which held that evidence of unrelated and relatively innocuous previous incidents of misconduct by an eight-year-old was not sufficient to overcome the presumption of incapacity.

16 State v. Jamison, 23 Wn.App 454 (1979).

17 State v. JPS, 135 Wn.2d 34 (1998).

18 Miranda v. Arizona, 384 U.S. 436 (1966).

19 State v. James P.S., 85 Wn.App 586 (1997).

20 RCW 9A.44.073(1).

21 See State v. Linares, 75 Wn.App 404 (1994).

22 State v. JPS, 135 Wn.2d 34 (1998).

23 State v. Erika D.W., 85 Wn.App 601 (1997).

24 RCW 9A.44.010(2).

25 Ibid.

26 State v. SP, 49 Wn.App 45 (1987).

27 RCW 13.40.140(10).

28 State v. Linares, 75 Wn.App. 404 (1994).

29 Ibid.; in a footnote the Washington State Supreme Court seemed to agree. See State v. JPS, 135 Wn.2d. 34 (1998), footnote 2, at page 40.

30 State v. KRL, 67 Wn.App 721 (1992).

31 Ibid. at page 725.

32 Incompetency to stand trial must be due to a "mental disease or defect," and relates to the child’s state of mind at the time of trial or plea, not at the time of the offense. The test is whether the child understands the nature of the proceedings against him, and whether he is able to assist his attorney in preparing a defense. RCW 10.77.010(6). For insanity, a "mental disease or defect" is also required, and the respondent must establish by a preponderance that he was either (1) unable to perceive the nature and quality of the act charged, or (2) unable to tell right from wrong with reference to that act. RCW 9A.12.010(1)(a)(b). To show capacity, the state must establish by clear and convincing evidence that the child had sufficient capacity both to (1) understand the act or neglect, and (2) understand it was wrong. RCW 9A.04.050. Incapacity does not require a mental disease or defect, and is usually based on the child’s lack of developmental sophistication and maturity.

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