Two views on criminal parental responsibility

Leonie le Sage

Introduction Discussions about parental responsibilities in both the legal as well as pedagogical domain normally focus on the duties parents have towards their child (e.g. Blustein, 1982). Here, important issues are which parental rights correspond with their duties, whether or not childrens rights override parental rights and under which circumstances the state has the right to take the rights and duties from the parents. A rather different question is what the responsibilities of parents are towards others or society in general (Vallentyne, 2002). Questions regarding parental duties towards others in most cases merely reflect a financial concern, as in the debate about who should pay for (most of) the costs of day-care centres. Yet, in reaction to particular cases of violent youth crime (for instance, the James Bulger-case and the Columbine High School shooting) the UK and USA have developed legislation to hold parents criminally responsible for the crimes their children commit, which makes it possible to not only recoup the costs of the youngsters incarceration from the parent, but also to detain the parent, sentence her to work in community service or to follow courses on how to enhance her parental skills. In this paper I will address the question whether or not it is justifiable to hold parents criminally responsible for the criminal acts of their children. To that end, I will focus on a theory of criminal accountability which forms the core of most modern criminal law systems, and analyse if parental responsibility can be accounted for in this theory. I will discern two views on why parents are responsible: the frequently endorsed view that parents are responsible because they have the duty to guard or control the behaviour of the child and the view that they are responsible because they have the duty to morally educate the child. Both views are compatible with the core theory of responsibility, yet, I will argue that the first view 1.) seems to imply a too limited concept of parental responsibility, 2.) when emphasised, can lead to pedagogically undesirable practices and that this view therefore needs to be supplemented by the view that parental responsibility is constituted by the duty to morally educate the child. First I need to argue, however, that we really need a theory on criminal parental responsibility. The need of a theory on criminal parental responsibility Many reports and articles on parental responsibility do not address the question if parents can be held responsible for the crimes of their children, but rather if it is desirable that parents be held responsible for the crimes of their children (e.g. Hakkert, Mantgem, & Spindler, 1999). Therefore, research is directed at the consequences of existing practices of punitive sanctions for parents (for instance a fine or community service) for the number of recidivists and at possible alternatives for these sanctions. While some argue on the basis of the outcomes that criminal parental responsibility is undesirable (e.g. Scarola, 1997), others have suggested that some sanctions have (potentially) desirable outcomes and therefore could or should be imposed on parents (e.g. Graham, 2000). Although this line of argument is highly informative and required in deciding which sanctions should possibly be imposed, the preliminary question if we can rightfully hold parents responsible for the crimes of their children, is not addressed. A utilitarian argument or a deterrence theory of punishment might seem to justify focussing on the consequences of

sanctions only, but by doing so one may be tempted to act contrary to the primarily retributive justification of our punishment, which should be based in Strawsons (1962) terms on reactive attitudes: to hold someone responsible after all implies that one sees the person as blameworthy, as deserving punishment, as being guilty of something. It is possible that this focus on the consequences is related to the fact that it is presumed that parents are responsible for the behaviour of their children1; therefore there is no need to question the legitimacy of actually holding parents responsible. In the Netherlands, for instance, a research report of Junger-Tas (1996) related criminal behaviour of youngsters with the situation in which they were raised and thereby provided a ground for others to develop views on whether or not it is desirable to hold parents responsible for the criminal acts of their children and what measures should be taken (e.g. De Jonge, 1999). The fact that parental behaviour (or upbringing situation) can be causally related to the behaviour of youngsters does however not provide sufficient reasons for rightfully imposing sanctions on them, not even if this leads to desirable outcomes, as I will show with the help of an example. Suppose that the wish for material gain and prosperity of a spouse leads her husband to commit crimes like thievery or fraud. There clearly is a causal relation between the spouses wishes and the criminal behaviour of her husband. Suppose furthermore that sanctioning the spouse (she, say, should work in community service when her partner is caught committing a crime) leads to a decrease of criminal behaviour on the part of her partner. Is it the case then that because of the fact that the spouse can influence the partner to refrain from undesirable behaviour, we may rightfully sanction her? I think that only few would maintain that we may, the reason for this being that we cannot see the spouse as guilty of something; we cannot see her as the one that deserves the blame. Although it is clear that the behaviour of the spouse influences the behaviour of the partner, and the consequences of imposing a sanction on the spouse are desirable, we feel very reluctant to sanction the spouse, because we maintain that someone who is not really guilty of the crime, cannot rightfully be held responsible for it. Focussing on the consequences implies the risk that parents are sanctioned unjustifiably, for they perhaps are not the ones to be blamed. What we need before we decide which sanctions, procedures or punitive measures are desirable, is to determine whether or not parents can rightfully be held responsible for the crimes of their children. In the following, I will briefly outline a theory of responsibility which is at the heart of most modern penal codes and argue that parental responsibility is consistent with this theory. Responsibility for ones own and others behaviour In holding someone responsible, one assumes that the so-called choice- (Moore, 1990) or control-criterion is satisfied: the agent could have chosen to do otherwise, the act was under her control. More concrete this means that the act was intentional or due to negligence. The agent cannot be blamed if she was non-negligently ignorant of the wrongness of her behaviour. A further assumption is that the agent was able to discern good from evil and to regulate her behaviour accordingly, in Wallaces terms (1994): she has at her disposal the power of reflective self-control which comprises a cognitive and conative power: (1) the power to grasp and apply moral reasons, and (2) the power to control or regulate his behavior by the light of such reasons (p. 157). Persons whose behaviour is influenced by psychological or mental deficiencies lack reflective self-control and therefore cannot be
That this is a commonly held view is shown by a study of Brank and Weisz (2004) in which 68,7 percent of the respondents maintained that, next to the juvenile offender herself, the parent is most responsible for the criminal behaviour (in comparison to peers, media and school). Far less, however were actually willing to punish the parents.
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blamed for not having acted otherwise then they did. However, the agent who lacks these powers of reflective self-control can still be held responsible if she herself has caused intentionally or due to negligence - this deficiency to occur. Drug- or alcohol abuse can bring one to be lacking the power to grasp and apply moral reasons and/or the power to control ones behaviour in the light of such reasons, but it is not a reason for diminished responsibility because the agent herself is responsible for the state of mind she was in at the time of the crime. She willingly or due to negligence created the situation in which she lacked the powers of reflective self-control. This historical responsibility (Fischer and Ravizza, 1998) also implies what can be called responsibility for self (Taylor, 1976). People acquire certain dispositions, virtues, vices, ways of thinking, ways of reacting et cetera that are for a part there own doings (Spiecker and Steutel, 2003; Jacobs, 2001). They are, due to the fact that they shape their own characters on the basis of conscious decisions or due to negligent behaviour responsible for the kind of person they become and for the acts that are the results of becoming a certain kind of person. A criminal law case in the Netherlands in which the judge explicitly referred to the responsibility of the defendant for the person he has become is the case of Wik. H., condemned for (among other violent assaults) the murder and rape of a young girl. According to the judge the defendant has been given earlier in life a chance to change the direction of his life, a chance he did not grasp and this is the choice the defendant made, and made over and over again, everyday again. The defendant, it is true, is accountable to a lesser degree, but he can nevertheless be held responsible for his deeds.2 Can parents be held responsible for the crimes of their children on the grounds of these criteria? Criminal parental responsibility implies that the agent (the parent) can be held responsible for the behaviour of other persons (the child). Normally, people are only responsible for the crimes they commit themselves, because that falls under their control or choice. However, there are exceptions. For instance in the case of blackmail or indoctrination. The reason for this seems to be that in the first case the agent exercises control over the will of the other person (the other person is forced to do something), in the second case the agent exercises control over the other persons judgements (she is forced to belief something). The judge in the so-called Veghel-case in the Netherlands seems to argue for criminal parental responsibility on exactly these grounds: the father who strongly urged his son to shoot the exboyfriend of his sister is held responsible for the boys attempt to murder him. The judge attaches importance to the fact that the defendant has gravely misused the ascendancy he as father had over his minor son.3 In this kind of cases however, there is intent on part of the parent: he or she really has the intention that the child commits a crime. Intent however, does not seem to be necessary to blame parents for the crimes of their children. When the parents know that their children are about to commit a crime, or most likely will and they do nothing to prevent the crime from happening, they can be held responsible. Not because there is intent on part of the parent, but because they are negligent. These surely are grounds for holding parents criminally responsible for the behaviour of the child, but there is more to say. The above described cases are not typical cases of parental responsibility, for uncles, grandmothers, neighbours, elderly brothers, sisters, friends (et cetera) who urge the child to commit a crime or who have foreknowledge of a crime can be held equally responsible. The responsibility of the parent seems to be related to a particular duty they have and others do not. I think that this kind of parental responsibility - that we can call responsibility due to a parental duty - can be based on two different duties: a duty to
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Verdict Criminal Court Rotterdam, 27 April 2005. Verdict Criminal Court s-Hertogenbosch, 28 February 2001.

control or guard the child and a duty to morally educate the child. I will discuss both in the following. The parental duty to guard or control the behaviour of their children The duty to control is frequently endorsed as the ground on which parents can be held responsible for the crimes of their children. According to the duty to control view the parents are responsible for the crimes of the child if and only if they have not sufficiently controlled or guarded the child. If they have sufficiently guarded or controlled the child, they can not be blamed. A well-known example of a parental order indicating a controlling duty is the parental responsibility ordinance of St. Clair Shores in 1996: parents are required to exercise reasonable control to prevent the minor from committing any delinquent act which entails ensuring a home free of illegal firearms and drugs, staying informed of the curfew ordinance, requiring that the child go to school, arranging supervision if the parent is absent, taking precautions to keep the child from committing property destruction, forbidding the child to keep stolen property, and seeking help from the government to control the child if necessary (Scarola, 1997, p. 1029-1030). Parents have to take measures so that their children will not be able, nor be easily tempted to commit crimes, for instance, they have to see to it that the child is at home early at night, to forbid the child to spend time with wrong friends, to see to it that the child cannot easily gain access to weapons, et cetera. This way, the parent controls the life of the child in such a manner that she cannot engage in criminal behaviour. If the parent has tried to control the dos and donts of the child, then, according to this line of thinking, she cannot be held responsible for the crimes of her children. Yet, if she was negligent in exercising this control, then she can be held responsible. This is a very common view on why we can hold parents responsible for the criminal behaviour of the child. It probably is appealing because this form of parental negligence can be (more or less) proven to be the case. For instance, whether or not the parents have, for instance, ensured a house free of illegal firearms and drugs can rather easily be determined. Furthermore, there seems to be a direct causal relationship between the omission of the parent and the behaviour of the child: had the parents not their weapons lying around in the house, then the child could not have shot someone. For legislative purposes, this is an advantage. I do not believe that this is what criminal parental responsibility amounts to however, nor do I think that this view really is without (legislative) problems. One main problem is that the domain of parental control or supervision needs to be sufficiently marked out. Evidently, the parent cannot guard the child everywhere or control all of the childs behaviour. It is no coincidence that the examples discussed above refer to situations in or nearby the family home: it is obvious that the parent is able to supervise and control home-situations. But what about the childs behaviour outside the family home: e.g. at school, places of entertainment, at their friends home, the places she hangs out? There does not seem to be parental guardianship or control possible in these places. We can decide that criminal parental responsibility is restricted to the domain of the family home, to those places the parent can reasonably be expected to exercise supervision and control. That has a consequence that the parent cannot be held responsible for the crimes that are committed at places that do not belong to this domain of parental control. This is rather counter-intuitive, however as an example will show. Suppose a child is beaten up by her parents whenever she does something they do not like. Because of this, she is a very quiet and timid girl at home, but when there is no parental guardianship, she shows the same violent behaviour towards others, as her parents show towards her. It seems hard to deny that the parents are responsible for the behaviour of

this child. But this implies that parental responsibility is not limited to what falls in the domain of parental control. The parents cannot guard the child in these other settings, yet, they are responsible for her behaviour. This belief implies that criminal parental responsibility is not only constituted by the parental duty to guard or control the child. In the following I will briefly outline an alternative view. The duty to morally educate the child In modern criminal courts youngsters are treated differently from adults: punishment for youngsters is less severe and can have a more educational character than for adult offenders. This difference reflects the differences in competences that is believed to exist between adults and youngsters. In line with theories on the psychological development of youngsters and adolescents (e.g. Piaget, 1932/1975), children are gradually deemed to become more competent. Where children of the age of four are seen to be lacking the necessary competences to be held responsible, youngsters from above a certain age (for instance 12 in the Netherlands) are, exempting conditions being absent, held responsible for their crimes, for the reason that they to some (minimally sufficient) degree can discern good from bad and act accordingly. In blaming the parent, however, one presupposes that the youngster herself is not or not fully responsible for her behaviour4. After all, if she was, she would be held responsible herself. In the above we saw that if someone has the powers of reflective self-control, then she can be held responsible. Criminal parental responsibility thus presupposes that the youngster misses the powers to discern good from bad and to act in line with that knowledge, and this is the fault of the parent. The reason for parental responsibility is related to the argument that the child needs education to be able to develop these competences and that it is the parent who should have provided this education or upbringing. Although the discussion about parental rights has the same point of departure, it rests on a different justification. Parents have the right to act on behalf of their children because children do not have the competences required for making autonomous decisions. This right is, as is argued for instance by Blustein (1982), dependent on the duty of the parent to act in the best interest of the child. If they do not act in the best interest of the child, they can loose the right to act on its behalf. Seen from this viewpoint, the interest of the child generates a duty of the parent to see to it that the child develops the competences she needs to act autonomously. Criminal parental responsibility, however, is not generated by the responsibility of the parent towards the child, but towards society or others in general (Vallentyne, 2002). Here we could maintain that parents have the duty to educate the child morally, so that it is equipped for moral decision-making. The child lacks these competences and the parent should see to it that she develops these. From this argument we can deduce another parental duty: the duty to morally educate the child. This duty is not, or not only, to guard or control the child, but to see to it that she develops the moral competences, and that requires the parent to be engaged in moral education or upbringing. To morally educate the child entails that parents do not only control the antisocial behaviour of the child, but also shape and cultivate the childs prosocial attitudes: that it is willing to help other persons, to be respectful to others, to be fair-minded and honest et cetera. Obviously, in grounding parental responsibility on this duty, one avoids the problem of barking out a domain of parental control, for the effects of moral education are not limited in this sense. Moreover, the purpose of moral education precisely is that the child can control her own behaviour in settings where there is no parental guardianship. As a consequence, the fact that the parents have exercised a sufficient degree of control over the
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Except for cases of complicity.

childs behaviour (the cunning child however found a way to escape from her parents control) or the crime was committed outside the domain of parental control, does not imply that they cannot be held responsible for the crime committed by the child. After all, they can be held responsible for the fact that the child has not (sufficiently) developed the powers of reflective self-control. This kind of responsibility corresponds with the responsibility for self discussed earlier. The parents are not responsible because they have omitted something (guardianship or control) at the time of the crime, but because they are responsible for the person the child is at the time of the crime (for the fact that she lacks sufficiently developed moral competences). To take this duty seriously means that one should put less (or: not only) emphasis on the parental duty to control the child. The purpose of moral education is that the child herself can control her behaviour, which will never happen if the parents exercise a strong control over the childs antisocial impulses or create an environment free of antisocial temptations. Moral education then, sets limits to in what degree control may be exercised: control may not be exercised in such a manner that the development of impulscontrolling capacities of the child is negatively affected by it. Legislation such as the St. Clairs Shores parental responsibility ordinance emphasises exclusively the control duty of parents. Because of that, the duty to morally educate the child is neglected. Taken as a normative educational policy, it says that parents should be engaged in controlling the life of their children. Complying parents will consequently be engaged in a manner of childrearing that perhaps not only will neglect other aspects of moral education (e.g. prosocial attitudes), but also conflict with the development or enhancement of the impulscontrolling competences of the child.

Concluding remarks What the above analysis of parental responsibility shows is that this should be interpreted as the reasonable expectation against parents regarding the moral upbringing of their children. Of course, we can hold parents responsible for manipulating their children to commit crimes, but intent is not necessary for parental responsibility. Parents may be held responsible for parental neglect. Parental neglect does not (or not only) refer to the parents failure to control the behaviour of the child, but to the failure to educate the child morally. This duty of the parent is ignored in recent legislation on parental responsibility. In order to do justice to the basic assumption that parents should be engaged in moral education, legislation about parental responsibilities should be put in terms of enhancing as well as controlling duties of the parent. In the beginning of this paper I briefly mentioned the issue of the desirability of parental responsibility orders. Now that I have shown that there are conditions under which parents can be held responsible for the crimes of their children, the question of sanctioning the parents has become a legitimate one. I cannot extensively address the issue of which sanction is or is not desirable. However, my thoughts on the duty that parents have against the education of their children shed an obvious light into which direction sanctions should go: parents should be assisted in the moral education of the child, examples of sanctions are Family Group Conference and Functional Family Therapy. Some authors on the subject of family interventions refer to the need of a so-called cooperative or relational approach to parental responsibility as an alternative for the contemporary individualistic guilt-approach5 (Mass &
This not only in response to criminal law, but also to imposed interventions in the family when the childs interest is threatened.
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Van Nijnatten, 2005; Mass, 1997; De Jonge, 1999). Although I am sympathetic towards the intention to restore or improve the parent-child relationship that underlies these approaches, I think we should be very cautious in weakening the link between guilt and responsibility. If we would weaken this link, we run the risk that we unrightfully demand of persons to follow courses on parenthood, to enhance their educational competences, communicative skills, et cetera. On the basis of arguments developed in this paper, promising experiments with for instance Functional Family Therapy or Family Group Conference (e.g. Weijers, 2004) can be made compulsory for parents. But even though the presence of other family members may be highly desirable, they can only be invited, because to demand this engagement from them is to be unrightfully sanctioning persons that are not the ones to blame.

Vrije Universiteit Faculty of Psychology & Education Department of Philosophy and History of Education Van der Boechorststraat 1 1081 BT Amsterdam The Netherlands lf.lesage@psy.vu.nl

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Piaget, J. (1932/1975). The moral judgement of the child. London: Routledge en Kegan Paul Ltd. Mass, M. (1997). The determinants of parenthood: power and responsibility. Human Relations, 50, 241-260. Mass, M. & Van Nijnatten, C. (2005). Child protection and the conception of parental responsibility. American Journal of Orthopsychiatry, 75, 220-229. Scarola, T. (1997). Creating problems rather than solving them: why criminal parental responsibility laws do not fit within our understanding of justice. Fordham law review, 66, 1029-1074. Spiecker, B. & Steutel, J. (2003). Is a traumatic childhood just another abuse excuse? Educational philosophy and theory, 35, 441-450. Strawson, P.F. (1962). Freedom and Resentment. Proceedings of the British Academy, 48, 125. Taylor, C. (1976). Responsibility for self. In A. Oksenberg Rorty (Ed.), The identities of Persons (281-299). Berkeley: University of California Press. Vallentyne, P. (2002). Equality and the duties of procreators. In: D. Archard, & C.M. Macleod (Eds.) The moral and political status of children (pp. 193-211. Oxford: Oxford University Press. Wallace, R.J. (1994). Responsibility and the moral sentiments, Cambridge/Mass.: Harvard University Press. Weijers, I. (2004) Requirements for communication in the courtroom: A comparative perspective on the Youth Court in England/ Wales and The Netherlands, Youth Justice. The Journal of the National Association for Youth Justice, 4, 22-31.