Old age and the Criminal Code

Selective legal aspects concerning age: a series delving into the legal landscape surrounding ageing – Part 2

In Part 1 we have considered age in the context of the Civil Code. The Criminal Code also makes a good number of references to age. However, likewise, these concern almost exclusively the younger members of society.

A few examples: The Code concerns itself with children under 15 years who are engaged as soldiers, the abduction of a person under 18 years of age, and the defilement of persons under 12 or under 16 years, the murder of a child under 12 months or the abandonment of a child under seven years. The Code establishes the age of consent and defines a child as a person below the age of 18.

For about 130 years since the promulgation of the Criminal Code in 1854, there seems to have been no direct entry whatsoever regarding old age in its provisions. It was only in 2014 that a whole new sub-title was inserted in the Criminal Code entitled ‘Of Abuse on Elderly or Dependent Persons’ through Act XXXI. The purpose of the six articles (Articles 257 A to F) Sub-Title XI was intended to make more prohibitive the deterrents for committing a crime if the victim were an older person, by harsher punishments for the abuse. Sub-Article 257 F (4) provides a definition of “elder”, that is a person who has attained the age of 60 years, whilst Sub-Article 257C (2) seems to make a distinction between the young ‘old’ and the old ‘old’ by making even further punishments for crimes committed on persons who are 70 years of age and over.

This entry was preceded by what seems to be the first insertion, in 1990, of a specific reference to old age in the Criminal Code, which was introduced through Act XXIX of 1990.

276A. The punishment established in articles 273, 274, 275 and 276 shall be increased by one or two degrees when the “violence“ therein mentioned is directed against a person who is under the age of twelve years or over the age of sixty-five years or against a person who is suffering from a degree of physical or mental infirmity in consequence of which he is unable to offer adequate resistance.

Note the juxtaposition of age 12 of a child against age 65 of an adult. Note also the association of old age with physical or mental infirmity in the perceived inability to defend oneself. This Article was amended by means of Act III of 2002 to reduce age 65 to 60 years, thus establishing in the Criminal Code age 60 as the statutory beginning of old age. However, some hold the view that a category of law and ageing is inherently paternalistic as it suggests that older persons are like children, especially in need of the protection of the law. In this sense, it is further argued that the category itself internalises ageist presumptions about older adults and that it is, therefore, flawed and even harmful. Some even argue that older adults are not a distinct group but an arbitrarily delineated demographic category that contains within it a number of groups that are legitimately distinct for the purpose of legal theory. To mention a few examples: the disabled, women, persons of colour, ethnic groups, the rich and the poor, etc.

Artificially categorising ‘older persons’ may be seen as blurring and confusing these more relevant distinctions. Indeed, the fundamental idea of ‘law and aging’ as a discrete category of legal principle and theory is controversial.  

Photo Sora Shimazaki

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