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Raising the Age of Criminal Responsibility in Israel*

Published online by Cambridge University Press:  12 February 2016

Yael Hassin
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Extract

On June 28, 1978, the Israeli Knesset passed a Law which changed the age of criminal responsibility of juveniles, raising the threshold from 9 years of age to 13 years of age. This Law, known as the Penal Law (Amendment no. 3) 1978, is popularly called the “Yitzhaki Law”, after MK Yitzhak Yitzhaki (Likud) who initiated the Law.

From a practical point of view, the Amendment means that police interrogators may not interrogate minors under the age of 13, nor may they open criminal files on such minors or prosecute them. When and if the police are confronted with juveniles suspected of delinquent behaviour the police may take their testimony, and may refer them to the welfare officers, who, operating by virtue of the Youth (Care and Supervision) Law, 1960, are authorized to decide whether the minor requires care, and if so, the kind of care he is to receive.

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Articles
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Israel Law Review , Volume 16 , Issue 2 , April 1981 , pp. 225 - 249
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981

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Footnotes

**

Ph.D. (Criminology); Lecturer, Institute of Criminology, Faculty of Law, The Hebrew University of Jerusalem.

*

The planning of the research and the collecting of the data was carried out in association with Ms. Sarah Nelkin-Sharon, the representative of the Department of Juvenile Delinquency of the Israel Police. This article will appear in Hebrew in (1981) 9 Crime and Social Deviance.

References

1 “Nine” means from the day of the juvenile's 9th birthday and 13—from the day of his 13th birthday.

2 S.H. (1978) 148: Sec. 1 reads: “A person under the age of thirteen years is not criminally responsible”. The original bill referred to the age of 14, but this was not accepted by the Members of the Knesset. The proposal was as follows: “A person under the age of 14 years is not criminally responsible. Minors under the age of 14 who commit acts which, were it not for their age, would be defined as offences, will receive treatment, education and rehabilitation in the framework of the primary school” Divrei Haknesset no. 3, Second Session, 2.11.1977, 276.

3 I.e., the interrogators of the youth divisions of the police can treat the minor as a witness, and not as a suspect, and can take his evidence but not his confession, about the event.

4 Youth (Care and Supervision) Law, I960 (14 L.S.I. 44) sec. 3, provides for four types of care for the minor—these include provisions concerning his studies, his education or mental rehabilitation, the appointment of a friend of the court for the minor, placing the minor under the supervision of a welfare officer, and provisions concerning the placement of the minor in a closed institution.

5 Sec. 9(d) of the Criminal Code Ordinance, 1936, specified the age of 9–12 as the age of criminal responsibility providing that the minor “had the capacity to understand” that his action was prohibited. The new version of this section, passed by the Knesset in 1977 (Penal Law, L.S.I. Special Volume), exchanged the words “had the capacity to understand” with “had the capacity to know…”; “Sec. 13 (a): A person under the age of nine years is not criminally responsible”. “Sec. 13 (b) : A person under twelve years of age is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he had the capacity to know that he was forbidden to do the act or make the omission.”

6 In Appendix 8, p. 26, sec. 6.5.1 of the Report of the Prime Minister's Committee on Distressed Children and Youth, 1974, we find: “Criminal responsibility should be borne by 12 year olds and above, but not 9 year olds. This requires the appropriate legislation. Juveniles under the age of 12 who commit offences, and with respect to whom it is desirable, according to all the data, that the Court intervene and give the appropriate decisions, will be brought before the juvenile court in conformity with sec. 2(d) of the Youth Law as a “minor in need of protection”. We must ensure that minors below the age of 12 who show signs of social deviation and a predisposition to crime will receive the care and supervision that they require”.

7 Divrei Haknesset 1977, 268.

8 Divrei Haknesset 1977, 269. The former Minister of Justice, S. Tamir (DMC) expressed concern that “the total exemption of a wider age-group from criminal responsibility harbours dangers, one of which is that a large sector of the young population will become involved in crime.”

9 Divrei Haknesset 1978, 2230–1. MK M. Algrabli (DMC) and MK Meir Pe'il (Shelli) both raised the subject of the suitable frameworks for the education, care and rehabilitation of juvenile offenders, and the responsibility of these services for the juveniles below the age of criminal responsibility who become involved in crime.

10 Sessions of the 9th Knesset, 1978.

11 Interpol, Trends in Juvenile Delinquency During the Period 1974–1979, Report Submitted by the General Secretariat to the General Assembly Session in Nairobi (France, 1979).

12 Below 13: Afghanistan, Argentina, Australia, Bermuda, Canada, Cayman Islands, Cyprus, Dominican Republic, Ecuador, Egypt, Greece, Holland, Hong-Kong, Indonesia, India, Jamaica, Korea, Lesotho, Luxemburg, Malta, Mexico, New Zealand, Portugal, Qhatar, Scotland, Singapore, Tasmania, Tunisia, U.S.A., Venezuela. Age 13: France, Israel, Morocco, Peru, Senegal. Age 14 and above: Austria, Belgium, Chile, Congo, Denmark, England and Wales, Finland, Germany, Italy, Japan, Monaco, Norway, Sweden, Switzerland, Yugoslavia.

13 Council of Europe, Legal Affairs, European Committee on Crime Problems, Social Change and Juvenile Delinquency (Strasbourg, 1979) 20–23.

14 Morris, A. & McIsaac, M., “Juvenile Justice” (1978) Cambridge Studies in Criminology 139.Google Scholar

15 Council of Europe, supra n. 13, at 137.

16 National Advisory Committee of Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 9.2, 297–8, and Standard 10.8, 331–2 (Washington, 1976)Google Scholar (hereinafter — “Task Force”).

17 Standards for Juvenile Justice: A Summary and Analysis, Institute of Judicial Administration and American Bar Association, Juvenile Justice Standards Project (Ballinger Publishing Co., Cambridge, Mass., 1977) (hereinafter—“Standards for Juvenile Justice”).

18 Jurisdiction — Delinquency, A Comparative Analysis of Standards and State Practice (National Institute for Juvenile Justice and Delinquency Prevention, Office of Juvenile Justice and Delinquency Prevention, Law Enforcement Assistance Administration, Washington, D.C., 1977), vol. 5, p. 7. In 45 States in the U.S.A. there is no statutory stipulated minimum age of criminal responsibility. These states adhere to the common law conception, which considers a child of seven to be capable of understanding. Another two States stipulate the age of 7 years (New York and Maine). Four other States stipulate the age of 10 years (Colorado, Massachusetts, Texas and Vermont) (p. 6).

19 Schur, E. M., Labeling Deviant Behaviour (Harper and Row, 1971)Google Scholar; S. Nelkin-Sharon, “Opening Criminal Files or ‘Diversion’ — Effects on Future Criminal Behaviour of Juveniles”, Stencil, Israel Police, Department of Investigation and Prosecution, the Bureau for Juvenile Delinquency, 25 Sept. 1979.

20 The youth divisions of the Israel police are given discretion which allows them to open a diversion (no-indictment) form instead of prosecuting the juvenile, and also to close a file after it has been opened. The diversion forms are the police records of suspicion of delinquent behaviour of a juvenile, when such behaviour is not followed by the opening of a criminal file on the minor. In most cases in which diversion forms are opened, the police suspect that less serious offences, either contraventions or misdemeanors—have been committed, and that it is the minor's first offence. The police here exercise their power not to enter a criminal procedure against the minor and not to prosecute him. Of particular interest is a survey which was conducted in Israel. In her survey, Ms. Nelkin-Sharon found that if the police procedure ends in diversion the rate of recidivism is only 5.0% (4.34%); if the minor is tried in a juvenile court, the rate of recidivism is more than 50% (53.84%). Of course, we must keep in mind that diversion forms are generally filled in only in the case of suspicion of less serious offences, and also, that a number of these minors cannot be located. These findings explain to some extent the low rate of recidivism, but nevertheless, the gap between the two groups with respect to the rate of recidivism is astonishing.

21 The Police youth divisions have been established only in the three large cities (Tel Aviv, Haifa, Jerusalem). Elsewhere in Israel, there are no youth divisions, and one policeman at each police station is responsible for interrogating juveniles.

22 The second period, which is identical to the first with respect to the months covered, was chosen for two reasons: first, in the first six months after the commencement of the Law, there was uncertainty with respect to the duties of the various social welfare services, and even concerning the activities of the police. The second reason is that it is well-known that there is a connection between juvenile delinquency and the seasons, and therefore, it was important to chose two periods covering the same seasons.

23 The 1978 period covers both criminal records and diversion forms. Here is the division: Tel Aviv — 28 criminal records, 97 diversions; Haifa — 43 criminal records, 72 diversions; Jerusalem — 36 criminal records, 29 diversions. Total — 107 criminal records and 198 diversions. In all — 305. In 1979, the division of diversion forms amongst the three cities was: Tel Aviv — 215; Haifa, 86; Jeru salem — 60; Total — 361.

24 Since the commencement of the Law, police can no longer interrogate minors below the age of 13. Should the police encounter such juvenile suspects, they may only take their evidence.

25 Since the commencement of the Law, the details of minors below the age of 13 who are suspected of criminal activity are no longer fed into the police computer. If a complaint is filed and the perpetrator of the act is unknown, a file is opened. If, afterwords, it is discovered that the offender was a minor below the age of 13, the file is closed, and the details of the juvenile do not appear in any police records. If a number of people are suspected in connection with an offence, some of them below 13 and some of them above that age, the file is not closed, but the details of those below the age of 13 are not recorded. For this reason, we could not obtain details of the following groups of 9–13 year olds: a) those who are 9–13 but who are suspected of offences in complicity with youths 13–18; b) 9–13 year olds who committed offences together with adults over the age of 18; (c) 9–13 year olds who committed offences with respect to which general files were opened. Similarly, there were no details of these groups in the criminal records or the diversion forms at the police stations from which the material was collected by hand. Therefore, these categories of minors were not included with respect to 1978 and 1979.

26 The word “involvement” is used to explain the type of contact between the police and juveniles, and it means that the connection between the police and the juveniles included the opening of files or the completion of diversion forms in the case of juvenile suspects. In the case of diversion, the juvenile had no further contact with the police or with the juvenile court.

27 In order to illustrate the phenomenon of juvenile delinquency in this age-group on the national level, and its gravity, we have chosen a number of national statistics relating to the illegal behaviour of minors aged 9–13 (taken from: The Ministry for Labour and Social Welfare, Department of Research and Planning and Department for Corrective Services, Young Persons in the Care of the Youth Probation Service, 1977). The statistics are taken from 1977, for in the second half of 1978, the new Law was already in force. In 1977, 798 minors aged 9–13, from all ovei the country, were referred to the youth probation service (see Table 6, p. 9); 78.5% (627) of whom were Jewish (Table 1, p. 1). This group constitutes 10.7% of all minors who came under the care of the probation service (Table 4, p. 8), and 2.8% per 1,000 of all minors aged 9–13 in Israel (Table 5, p. 8). The rate (per 1,000) of crime in this age-group is decreasing annually: 5.1% in 1975; 3.9% in 1976; 2.8% in 1977, and 1.9% in 1978 (Youth Probation Service, 1980). With respect to those minors referred by the police to the youth probation service in 1977, 76.9% of the files were closed (57.1% were closed upon the recommandation of the probation officer, and 19.8% were closed by the police for lack of evidence). The remainder (23.1%) were prosecuted (Youth Probation Service, 1978, Table 17, p. 19). The results of the trials and the sentences were as follows: 8.2% received the heaviest possible sentence, either a Court Order to be institutionalized, or proper control or supervision by a fit person; 6.8% received fines, etc., 7.9% were released with no Orders, and 0.2% were acquitted after trial. Of these minors, 15.3% were recidivists (Table 10, p. 9). Most came from large families — 86.5% were from families with four or more children (Table 7, p. 14).

28 In this research, the material was collected manually from the police stations. As such, we are not talking about juvenile delinquents, but of juveniles suspected of criminal activity. As long as the juvenile has not been brought before the court and convicted, he is considered only as a suspect.

29 This ratio of 10:1 between boys and girls, with respect to criminal involvement, is a familiar one in both sociological and criminological literature. Nevertheless, there is a statistically significant rise in the number of boys suspected of criminal activity over the period 1978–1979, and a decrease in the number of girls (x2 = 15.9853; d.f. = 1; p<.001). In absolute numbers: from 258 boys in 1978 to 338 boys in 1979; and from 47 girls in 1978 to 23 girls in 1979.

30 On this point, see Sec. 5(a) of this paper, in which explanations for this phenomenon are offered. However, it should first be mentioned that attempts made, at a symposium devoted to the subject of raising the age of criminal responsibility (held in Bar Han University on 10 April 80), to investigate this finding with the Head of the youth section in Tel Aviv, failed. The Head of the youth section claimed that he does not know the reason for the rising number of juveniles suspected of committing offences. The Juvenile Delinquency Section of the Israel Police informed me that the youth department expanded its operations in Greater Tel Aviv from 1978 to 1979, and it may be that the 72.0% rise in the number of suspect juveniles over this period in Tel Aviv is the result of the change in the activities of the police. (See Israel Police, Yearly Report 1978, 11). As for the two other phenomena: 1) an increase in the number of suspects aged 9–12 and a decrease in the number of 13 year olds, and 2) a growing number of boys and a decrease in the number of girls—we have no satisfactory explanation, and we would tend to attribute them to the activities of the police.

31 See Table 3.

32 See n. 30, and see also Sec. 5(a) of this paper. In any case, we must stress that the criminal statistics which we collected especially for this research from material in the Department of Juvenile Delinquency at the Israel Police have their limitations. It must be remembered that criminal statistics reflect the activities of the police more so than the real situation. Thus, we can explain the decrease in the number of juveniles involved with the police in the Haifa and Jerusalem areas. It could also be that the police, knowing that they cannot interrogate or prosecute these minors, did not even take their evidence. Despite these drawbacks, these statistics can be considered as reflecting the situation to a certain extent. Besides, no other body has any different figures, or figures which are more accurate, dealing with the criminal activities of 9–13 year olds, both before and after the commencement of the new Law.

33 In the first half of 1980, various assessments were heard in Israel that violence in the schools was increasing, and that minors aged 9–13 are playing a larger part in violent activities in the framework of the schools. For this reason, when we examined the types of offences, we referred specifically to offences committed within the bounds of the schools: in 1979, the police were informed of 24 offences committed in the area of schools, although none in the schools themselves; the offences were committed in school clubhouses, or in clubhouses nearby (17 offences); next to the schools (3 offences), and in kindergardens (4 offences). Of these offences, 10 were in the category of malicious damage, and the rest—8 offences were assault between two children, theft (5 offences) and arson (one offence). The composition of offences in 1978 was similar.

34 In analysing the data, we attempted to discover the source of the marked statistical differences between the two periods with respect to sex, age and place of residence. For this purpose, we examined the first two variables (sex and age) in two ways: first, by comparing the statistics from the two periods relating to the same area in Israel; and second, by comparing the data from 1978 for all the three areas with the data from 1979 for all the three areas. The results were as follows: 1) Sex: Tel Aviv, 1978, as compared to Tel Aviv, 1979: There was an increase of 90.4% in the number of males involved with the Tel Aviv Police (Tel Aviv, 1978 — 104 boys and 21 girls; Tel Aviv, 1979 — 198 boys and 17 girls, (x2 = 5.43308; d.f. = 1; p< .01). Jerusalem and Haifa, 1978, as compared to Jerusalem and Haifa, 1979: There was less involvement of both boys and girls with the police, and the decrease amongst the girls was much greater: (x2 = 8.59402; d.f. = 1; p<.003). Hence, the decrease in the number of girls involved with the police, which we discussed in Sec. 3(b) is the result of two factors: first, the great increase in male involvement with the Tel Aviv police, and second, the marked decrease in female involvement with the police in Haifa and Jerusalem. 2) Age: The data indicates a rise, in the second period, in the number of 9–12 year olds involved with the police as opposed to the 12–13 year olds. A comparison of the two periods according to place of residence indicates that here, too, the change occurred because of changes in the operations of the police in Tel Aviv (x2 = 41.1490, d.f. = 5; p<.001). More 9–12 year olds (and in particular, 10–12 year olds) were involved with the youth divisions of the Tel Aviv Police. In Jerusalem and Haifa, however, upon comparison of the two periods we find that there were no differences in the involvement of juveniles with the police according to age (x2 = 7.65060, d.f. = 5; n.s.).

35 Youth Probation Service, 1978, supra n. 27. The youth divisions of the police adopt 99.4% of the recommendations submitted by the Youth Probation Service.

36 (1960) 14 L.S.I. 44.

37 S.H. (1978) 148.

38 Divrei Haknesset (1977) 276.

39 Melamed, A., “Youth Probation Officer, Adult Probation Officer, Welfare Officer: Comparison of Functions and Powers” (1975) 6 Welfare 45–54.Google Scholar

40 Youth Probation Service, 1978, supra n. 27, Table 2, p. 2.

41 Ministry for Labour and Social Welfare, Circular to the Social Service Bureaux, Bureau of the Deputy Director General, Dr. I. Brick, 28 June, 1979, n. 39/115/79.

42 Question no. 4395, raised by MK S. Arbeli Almozlino on 15 Aug. 79, and Question no. 4714, raised by MK O. Namir on 12 Nov. 79. The two MK's asked questions concerning the raising of the age of criminal responsibility, and expressed their concern over the lack of readiness on the part of the social services to deal with this population.

43 Sessions of the Ninth Knesset, 29 Jan. 1980, p. 3.

44 These arguments were heard, and even appeared in various newspapers. To the best of my knowledge, at present there are no official statistics on these two subjects, and everything that has been said is only speculation.

45 Empey, LaMar T., American Delinquency, Its Meaning and Construction (Dorsey Press, 1978) part 2, pp. 113–195.Google Scholar

46 Sellin, T. & Wolfgang, M.E., The Measurement of Delinquency (Hiley and Sons, New York, 1964).Google Scholar

47 Hood, R. and Sparks, R., Key Issues in Criminology (World University Library, 1970) 43–5.Google Scholar

48 Wilson, J. Q., “The Police and the Delinquent in Two Cities”, in P., Garabedian and D., Gibbons, eds., Becoming Delinquent (Aldin, Chicago, 1970).Google Scholar

49 See Sec. 3(c)(1) of this paper.

50 In a study which I conducted, 221 teachers from the Jerusalem area were interviewed, all of them teaching 9–13 year olds. 69.2% of them answered that they have no idea about the sort of care received by children who are suspected of delinquency and who are no longer criminally responsible. 82.8% of the teachers interviewed in this study said that they do not know if the children of the relevant age group who attend the school are involved in any way with the police.

51 Shanit, D. and Zemakh, M., Factors Affecting the Exercise of Powers of Intervention According to the Youth Law (School of Social Work, University of Tel Aviv, and the Ministry of Welfare, 1977) 68–77.Google Scholar

52 See, e.g., Children and Young Persons Act, 1969, the Law raising the age of criminal responsibility in England and Wales, which stipulated that the age of criminal responsibility will be raised from 10 to 14. Implementation of the law was postponed until such time as the agencies could prepare themselves for the changes wrought by the law (Council of Europe, supra n. 13, at 119).

53 See the findings in Sec. 4 of this paper.

54 Schur, , Radical Non-intervention (Prentice Hall, Englewood Cliffs, 1953).Google Scholar

55 Morris, supra n. 14, at 148.

56 Welford, C., “Labelling Theory and Criminology: An Assessment”, (1975) 22 Social Problems, no. 3, 332–45CrossRefGoogle Scholar.

57 Stewart, V. Lorn (ed.), The Changing Faces of Juvenile Justice (New York University Press, 1978) 140.Google Scholar

58 Standards for Juvenile Justice, supra n. 17.

59 M. E. Wolfgang, “The Longitudinal Study of Delinquency and Crime”, paper presented at the Israel Society of Criminology Meeting, April, 1980 (stencil).

60 Hassin, Y., “Presence of Parents during Interrogation of their Children by the Police” (1980) 8 Crime and Social Deviance, no. 2, pp. 86–95.Google Scholar

61 Placement of Offenders on Probation (Probation Services) Regulations, 1959, secs. 9–30 (K.T. p. 1199).