The epistemic and moral challenges of doli incapax

Dr  David Moltow1, Ms  Cassandra Thoars1

1University Of Tasmania, Sandy Bay, Australia

Australian laws require children who have allegedly committed crimes to be dealt with separately from adults. In all jurisdictions the presumption of doli incapax – grounded on the notion that children are incapable of evil intent and so cannot be held responsible for the criminality of their actions – operates in relation to children aged up to 14 years. However, the doli incapax presumption is rebuttable in cases involving children 10 years or older, and in which it can be proven beyond reasonable doubt that the child in question knew, or was capable of knowing, that their act was seriously morally wrong. This creates evidentiary complexity involving two elements of the presumption: the epistemic and the moral. The epistemic relates to the child’s capacity to know, while the moral relates to questions of value. Together they raise questions concerning a child’s moral agency (i.e. the extent to which it can be known that a child has freely and knowingly committed an immoral act). The epistemic considerations of factual knowledge can differ radically from epistemic considerations of moral knowledge, in which there is a long standing and fundamental uncertainty concerning what constitutes a moral fact.

In this paper we draw from case law to highlight the radical epistemic and moral challenges associated with proving moral knowledge in children. We then propose criteria that may help police, lawyers and the judiciary to decide when to prosecute a child on the basis of their moral agency.


Dr David Moltow – University of Tasmania

Philosophy Lecturer in Ethics and Professional Practice in the Faculty of Education, University of Tasmania (Hobart Campus).

Moral philosophy, jurisprudence, political philosophy. Education Philosophy and Ethics. Humanity and the Humanities.

Exploring the humanising value of education.

I have taught Philosophy of Law and Political Philosophy, and in the present context ask students and postgraduates to reflect on the relations between law, ethics and justice, and to consider how these might apply in education, particularly in relation to its role in the promotion through the humanities of (inter)cultural awareness, ethical understanding, and sensitivity to environmental imperatives

Cassandra Thoars – University of Tasmania

Cassandra’s PhD focuses on the links between education and juvenile justice. Cassandra’s research expands upon her Honours work, in which she investigated the relationship between engagement in education and recidivism, explored from the perspectives of teachers and education leaders. She graduated from the University of Tasmania with a Bachelor of Education with First Class Honours in 2016, and her PhD research will advance policy makers’ and stakeholders’ understanding of the role schooling plays in youth offender recidivism.

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