I am finishing up a chapter for my book, a chapter on childhood and how Confucianism and Taoism would respond to the contemporary legal question of whether children should be tried as adults.  And, lo and behold, yesterday I come across this article in the WaPo that delves into another side of the issue, one I had not thought of: should adults who committed crimes as children, but were not accused or indicted of those crimes until they were well into adulthood, be treated legally as children or adults?

     First, a bit of background on Confucian and Taoist ideas on these questions. 

      My interpretation is that Confucians would agree that children who commit terrible crimes should not be tried as adults.  Childhood from a contemporary American-Confucian point of view (i.e. Confucianism  applied to a US context) would extend to the age at which an individual has completed high school, about 18 or 19.  Before that time, moral maturity cannot be presumed, so full responsibility for one’s bad behavior cannot be borne.  This is not to say that children, especially teenagers, have no personal responsibility; rather, it simply suggests that teenagers cannot be held to complete adult responsibility.  They are adults-in-training, not yet fully autonomous in an ethical sense.  Thus, if a 14 or 15 or 16 year old commits a bad crime, murder even, they should not be treated as if they were an adult.  They can be punished (because they bear some, though not all responsibility) but that punishment should not be defined in terms of adult responsibility.  It should also be noted that "punishment" for child offenders ought to, from a Confucian perspective, have a very substantial educational purpose: children who do bad need to be taught how to do better.

     Taoists, I believe, would, in a round about sort of way, say that children can be treated in a manner similar to adults.  But that is only because the categories "child" and "adult" would be rejected by a Taoist as overly broader and ineffective for judging the Integrity (Te) and "essential nature" of any given individual.  Some "adults" may have child-like attributes, and some "children" may be more mature than others.  No one single process of education or age marker is adequate for understanding the unique qualities each of the myriad things in Way.  Thus, each thing should be understood and treated according to its individual qualities – and that applies to both children and adults.  In that sense, children should be treated the same as adults.

     So, what happens when the question is reversed: should adults be treated as children?  Here is some background on the kind of cases where this question comes up, from the WaPo article:

They were both children more than 25 years ago when Sona Gandhi and her
neighbor had the encounters that she would later call sexual abuse.
They were certainly adults the day Gandhi confronted the man in a Rockville courtroom last winter.

But the man, now 40, was charged as a juvenile because of his age at
the time of the alleged offenses, in a type of case that is becoming
more common as women increasingly report being molested as children.

….

Cases such as the one prompted by Gandhi’s
report to police last year have ignited a legal debate about whether
adults can and should be tried in juvenile court and whether labeling
adults as sex offenders for things they did as teenagers is fair and
necessary.

Gandhi says the criminal justice system let her down. Montgomery County
prosecutors dropped the charges against her former neighbor after
clinical experts concluded that he is unlikely to offend again. The man
had admitted the abuse in a telephone conversation recorded by police
last summer, according to a police report.

      The woman involved in this case agreed to allow her name to be used publicly to draw attention to these sorts of cases.

       Confucians would, I think, agree to the prosecutors decision to keep this case in juvenile court, which is regulated by stricter standards of privacy and involves different sentencing guidelines.  The offense happened when the perpetrator was a child and was operating under the limitations of childhood moral immaturity.  Perhaps dropping the case was too lenient (the victim’s pain and suffering should require something more than just an apology from the perpetrator), but it is hard to judge that without more information on the type and amount of evidence available. 

     But notice that the adult is not being tried exactly like a child – and that is because of the element of time.  More than 25 years have transpired; the child perpetrator has lived many years as an adult; and, perhaps inevitably, the quality of those years spent as an adult find their way into the judgment in this case.  His good adult behavior serves to mitigate his bad child behavior – something that is obviously unavailable to children qua children. 

     This anomaly would not  bother a Confucian.  Since the person before us is, indeed, an adult, we cannot simply ignore his experience as an adult.  The fact that he has not molested as an adult (and that is a fact in this case: the perpetrator has not molested as an adult), suggests that some learning has happened, and that is the essence of morality.  Perhaps some restitution to the victim would be in order; or restitution to society in the form of service in an appropriate social setting.  But application of adult sex offense statues would be unwarranted in this case for a Confucian.

     And what would a Taoist say?  I think all of this would be taken as confirmation of the inadequacy of any general categories like "adult" and "child."  Each thing, each person, each case must be judged on particular circumstances.  It is hard to envision what Taoist legal procedures might be, since Taoism is generally skeptical of the law (it too often pushes us away from Way).  But judgment is not wholly eschewed by Taoists – there is a sense of good and bad, right and wrong, if only at the most general level.  The difficulty is understanding each unique thing in Way.  And, for that, overly strict categories are not much help.