A legal presumption rooted in medieval common law, known as 'doli incapax,' could influence the case of three private school students charged with aggravated sexual assault. This law, meaning 'incapable of evil,' suggests children under a certain age lack the capacity for criminal intent.
In New South Wales, Australia, where the alleged incident occurred, children under 14 are legally presumed not to possess criminal intent. This presumption can be rebutted if prosecutors prove beyond a reasonable doubt that the child understood their actions to be morally wrong. The law does not apply to children under ten, who cannot be charged with a crime.
Of the three Scots College students charged, only the youngest, who is 13, would qualify to have the 'doli incapax' presumption applied to his case. The other two defendants have already turned 14. All three boys face charges related to an alleged sexual assault of a 14-year-old girl in a Bondi Junction alleyway on July 22.
The 13-year-old is charged with two counts of aggravated sexual touching. One of the 14-year-olds faces the same charges, while the third boy, also 14, is charged with one count of aggravated sexual touching. None of the boys have entered pleas.
All three are currently on bail with strict conditions, including prohibitions against contacting the alleged victim and entering Bondi Junction. A variation was granted for one of the 14-year-old defendants, allowing him to attend an address in Bondi Junction under specific circumstances when accompanied by his father. Apprehended violence orders taken out by police also include provisions preventing the boys from approaching within 200 meters of a specified address related to the alleged victim.
The 'doli incapax' law was last formally tested in an Australian High Court case a decade ago. In that instance, the court found that an 11-year-old boy, later assessed as having borderline intellectual disability, did not possess the moral maturity to understand the wrongfulness of his conduct, despite a trial judge's previous conviction. The NSW Judicial Commission emphasizes that proving guilt requires demonstrating the child appreciated the moral wrongness of the offense, not merely that the conduct was considered 'naughty.'
The families of two of the accused students have engaged a specialist law firm to protect their identities. The case has reportedly sent shockwaves through the school community. The three boys are due to return to Surry Hills Children's Court on October 20, though their physical appearance may not be required if they are legally represented.