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In Scotland the age of criminal responsibility is currently eight years, however age of criminal prosecution was raised to 12 in 2010.

It is noted that, in some states, a link is made between infancy as a defense and defenses that diminish responsibility on the ground of a mental illness.

Distinctions between children, young offenders, juveniles, etc. The majority view is that this linkage is not constructive in that it implies that children are in some way mentally defective whereas they merely lack the judgment that comes with age and experience.

This is an aspect of the public policy of parens patriae.

In the criminal law, each state will consider the nature of its own society and the available evidence of the age at which antisocial behaviors begins to manifest itself.

Under the English common law the defense of infancy was expressed as a set of presumptions in a doctrine known as doli incapax.

Yet, the sense that children do not deserve to be exposed to criminal punishment in the same way as adults remains strong.Children have not had experience of life, nor do they have the same mental and intellectual capacities as adults.

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Tegenwoordig zijn er van de 1,8 miljoen inwoners nog maar zo’n 700.000 inwoners over.The prosecution could overcome the presumption by proving that the child understood what he was doing and that it was wrong.In fact capacity was a necessary element of the state's case.Thus, if the rationale of the excuse is that children below a certain age lack the capacity to form the mens rea of an offense, this may no longer be a sustainable argument.Indeed, given the different speeds at which people may develop both physically and intellectually, any form of explicit age limit may be arbitrary and irrational.Hence, it might be considered unfair to treat young children in the same way as adults.