Abstract
I examine the discursive identity construction of “childish” adult defendants in court as an arena of negotiation involving judges, lawyers, psychiatrists, probation service professionals, plaintiffs and defendants. Being categorized a “childish” defendant can be legally constructed as either contributing to the aggravation of punishment, or conversely, to mitigating the sentence. Based on court rulings retrieved from an Israeli judicial database, four categories of such “childish defendants” are identified and discussed: the innocent childish defendant, the influenced childish defendant, the childish defendant who is unable to control his/her behavior, and the childish defendant who lacks boundaries, with varying consequences for the court’s exercise of stringency, leniency, and other forms of social control. I conclude by discussing the findings’ implications for political intersections of law and age, and specifically childhood. The construction of childishness, as it takes place in courts, is further discussed as a means of control that transcends biological age.
This article, based on court rulings retrieved from an Israeli judicial database, sets out to explore the construction, labeling and performance of childishness in court. Constructing the defendant as childish can either lead to the aggravation of punishment, or conversely, mitigation. These dialectics provide an intriguing yet little explored arena for negotiation involving judges, lawyers, psychiatrists, probation service professionals, plaintiffs and defendants. My continuous bracketing of “childishness” should serve as a reminder that I focus on its social construction which is arguably disconnected from biological age (as adults can be labeled “childish” too), or any other essential characteristic. After locating my subject within the relevant literature on childishness and childhood as social constructs in general and particularly within the legal system, I turn to an empirical investigation of negotiating “childishness” in court discussions of adult defendants. This provides a rich empirical field for discussing the discourse of “childishness” in court as a polysemic hybridization of childhood and adulthood, denoting and reinforcing the arbitrary nature of the court’s power.
Recent studies have begun to explore the ascribed “ages” of defendants in Israeli courts as means of control and hegemony. One such study 1 deals with verdicts given by Israeli military courts to Palestinian children of varied ages. These cases demonstrate that constructions of age and childishness as an ascribed psychological age serve as means of judicial control. This study deals with trials of adults in civil courts, thus allowing to further explore the role of childishness and age-construction in the civil system and in the context of non-minor defendants.
Labeling theory originally asserted that contact with the criminal justice system is predominantly stigmatizing 2 ; however, the point of departure for the ensuing analysis is that much more is going on in courts in terms of labeling as well as identity construction, including labeling that may have a de-stigmatizing effect for the defendant.
I. Childishness and Childhood as Social Constructs
There is a long and well-accepted western tradition regarding childhood as an essential trait in need of protection, for example in the UN’s 1989 Convention on the Rights of the Child. This assumption has, however, long been questioned by the understanding of childhood as a social construct. The construction of “childhood innocence” is inter-connected with the expansion of the child pornography law, where the emphasis on imagery sometimes replaces the concern for child abuse. 3 Legal understandings of “childhood” thus presuppose its construction as a political idiom for the promotion of social welfare. Jenks 4 discusses two dominant cultural tropes of childhood in the west: the Platonic image depicting angelic innocence and purity, and the Dionysian image depicting sensuality, hedonism and selfishness. Childishness, in the Dionysian sense, is a deviation from normalcy whose result is shame; childish behavior in the Platonic sense is the unique self-fulfillment of each individual. Parents and other adults invest age-specific rights and expectations with moral significance by (often) disapproving of “childish” behavior and by using privileges to reward behavior they label “mature.” On the other hand, we are often prepared to show some tolerance for “childish mischief.” This dualism is captured in news stories of youth violence casting violent youth as simultaneously evil victimizers and innocent victims, arguably resulting from the appropriation of these two broader cultural discourses – that of the evil, violent “minor” and that of the innocent, vulnerable “minor.” 5 Postmodern theory has further deconstructed these dichotomies, replacing them with performances of age hybridity. 6 Those encompass the adult-like child (giftedness, for example) and the child-like adult (gaming and pop culture, for example). Investigating childishness – rather than children or childhood – takes this postmodern premise of anti-essentialism one step further. Childishness, when applied to chronological adults, is a social construct in which adulthood and childhood exist simultaneously in a single individual.
II. Childishness in the Legal System
If Denzin 7 is correct that “children … are political products – they are created, defined and acted on in political terms,” then “childishness” is also a political label that signals power relations. Rose argues: “Childhood is the most intensively governed sector of personal existence … The way we control our children reflects … the strategies through which we exercise power and constraint in the wider society.” 8 “Childishness” as a label is on the one hand a resource of protest, but also a sphere of multiple governmental measures and legislation. Indeed, the association between “childishness” and deviance is blatantly reflected in the institutionalization of a separate juvenile court system.
The child constitutes a unique character in the judicial drama; this character has even earned the special legal category of “minor.” Previous studies of children in the judicial context have focused primarily on children’s participation in custody hearings and divorce trials, 9 and in the juvenile justice system. 10 Buckley 11 conducted a qualitative analysis of 81 legal opinions in which children are mentioned, examining the correlations between the legal perceptions of childhood and the right to free expression of high school students in the United States. Based on this analysis he identifies three main perceptions of childhood: as a period separate from and unlike adulthood; as a transitional period of becoming an adult; or as a period fundamentally similar to adulthood, according to the principle of children’s rights. The incompatibility between these three perceptions reflects societal ambivalence with respect to the nature of children and childhood.
Such ambivalence may serve, and be accentuated by, particular political situations in which the court prescribes (often arbitrarily) what is “childhood” and what is “childishness”. Viterbo 12 shows how in the occupied Palestinian territories, Israeli “domestic” courts consider childhood to end at the age of 18, while military law considers the threshold of “childhood” to be 16 years of age. Viterbo claims that this arbitrariness is also reflected by the difference between the domestic court where young “age” often leads to mitigation and the military court where it does not. He quotes from a verdict by Judge Fechrer 13 who claims that in terrorist activity cases, “young age” may aggravate the verdict. Such aggravation is meant to make young people think twice before they decide to join terrorism.
In another trial from 2003, Judge Ori Egoz states that when young children are selected by adults to perform terrorist acts because of their age, it is connected to the hope that their young age will help to mitigate their punishment. 14 Viterbo claims that in these cases the aggravation of the punishment by the court is directed, first, at the children themselves, and secondly, at the adults who recruit and train them. These are actually two different conceptions of “childishness”: passive and active.
These examples illustrate my central hypothesis, namely that the notion of age serves authority in courts. The court has the arbitrary power of the sovereign entity to delineate the boundary between child and adult. The court can impose sanctions on mature behavior of children, and as I argue later in this article, it can also show clemency and write off a certain amount of misbehavior as “childish mischief.” 15 Viterbo does not deal with childishness, but rather demonstrates the elusiveness of age and coexistence of age(s) amongst minor defendants in military courts: Both children who appear as younger than their actual age and vice versa – those whose body exhibits early maturity. There are verdicts in which judges claim that the defendant’s chronological age is “young,” but his or her “physiological age” is mature, and vice versa, depending on the situation. Age is not a fact but a subject for negotiation.
III. The Constructionist and Symbolic Interactionist Approach
The discursive framing of social problems, especially the moral and affective dimensions of the construction of person categories in social problems discourse, has been examined from a social constructionist perspective since the groundbreaking work by Blumer 16 and Spector and Kitsuse, 17 and more specifically in the construction of abused women, 18 threatened or abused children, 19 and the homeless. 20 Borrowing from Gubrium and Holstein’s 21 (1999) analysis of interpretive practice, I see the framing of “childishness” as comprising both an alleged condition and an alleged person. I focus here on how the identity of the defendant is negotiated in court by judges, lawyers, psychiatrists, probation service professionals, plaintiffs and defendants. Through interactions in court, individual defendants purposefully project themselves into the roles assigned for them by others in a manner that combines external assessments and self-appraisals. 22 The self thus becomes an object 23 for which the individual and others attach labels, both positive and negative. This takes on special importance in the psychology of punitive justice, as Mead 24 already noted.
Labeling theory is thus another complementary way to examine the construction of the “childish defendant” in courts as an alleged condition and an alleged person. Labeling theory focuses primarily on how institutions and social control agents define social objects, principally individuals and their acts. As a sociological theory, it is largely concerned with the role played by authority, status, and power in the assignment of social identities to individuals, especially in the context of deviance. 25
Labeling theory originally asserted that contact with the criminal justice system has the counterproductive effect of increasing future offending, because of the stigmatizing effects of justice ceremonies. 26 This has been termed the “deviance amplification effect.” 27 More generally, criminologists have also studied the inter-relationships between reflected appraisals, parental labeling, and delinquency. 28 The point of departure for my analysis is that much more is going on in courts in terms of the management of labeling, including labeling that may have a de-stigmatizing effect for the defendant. The labeling of “childishness” in courts is thus used here as a case study illustrating the complex and polysemic practice of labeling. My analysis will focus on the dominant motifs of labeling adult defendants as childish in court, accounts of its origins, the putative persons that populate this condition and the positioning of these categories in identifiable moral universes.
IV. Methodology
I examined court rulings retrieved from the Israeli judicial database (http://www.ruling.co.il/). Using the above website’s internal search engine, a search for the Hebrew words for “childish” in the masculine (yalduti) and feminine (yaldutit), and for its derivative “childishness” (yaldutiyut) yielded 651 documents. These comprise rulings handed down by all levels of the Israeli court system (Justice of the Peace, District Court, and Supreme Court) from 2004 to 2015. The document search was then narrowed by removing duplicates or documents in which the concept “childish” does not relate to defendants. This left 433 documents, each of them dealing with a single adult defendant and including statements connected to his or her childishness. In the majority of cases, the depiction of the defendant as childish was found in probation service reviews, to which the court refers defendants in order to obtain an expert opinion as to the degree of danger they pose to the public. The “childish” label was further addressed by the judges, psychiatrists, and the defendant him/herself. Thematic analysis 29 of the legal texts in which the defendant is described as childish led to the creation of four categories of the “childish defendant”: innocent, influenced, unable to control him/herself, and lacking in boundaries. I chose the data excerpts presented below because they illustrate my general findings. Significant elements in each excerpt were italicized by the author.
V. Findings
1 The innocent childish defendant
In many cases, attributing childishness to a defendant serves the purpose of mitigating the defendant’s punishment. In a 2009 ruling concerning an alleged rape,
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Judge Baruch quotes the probation service’s review: The probation service related that … [the defendant had] a childish personality and lack of self-confidence, and decided ultimately that in its assessment, the risk of repeating such a deed on his part in the future is not high.
The defendant’s childish behavior is mentioned multiple times in this ruling, and in all instances it is associated with the decision to mitigate the defendant’s punishment. Judge Shevach, referring to the same case,
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states: In the case before us, the defendant did indeed stumble … but a considerable part of this failure/stumble does not stem from delinquent behavior but rather is the consequence of foolish and childish behavior originating from a personality deficiency, as witnessed in numerous expert opinions submitted in his case.
Childishness is used in these circumstances to mark the distinction between an unforgivable delinquent behavior and a forgivable offense which is “the consequence of foolish and childish behavior.” Judge Shevach also compares the childishness of this (adult) defendant to the behavior of a minor – in this context drawing a connection between young age and innocence: We must consider the defendant’s shameful behavior, at this stage, after the fact, by understanding his childish personality, similar, to a certain extent, to the behavior of a minor, not necessarily from criminal aspects … [T]herefore, although the defendant was 22 years old at the time of the incident, he did not function as an adult but as an adolescent suffering from a lack of maturity and from childishness.
In other cases, childishness is not attributed to the defendant’s character or personality but rather to the offense itself. For example, the defense attorney in a robbery trial
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from 2013 claims in defense of his client: [T]he actions committed by defendant number one in the case under discussion lack sophistication and knowledge … It is so childish to go out in full daylight without a mask, to snatch a woman’s purse, while the whole world is watching him and sees his uncovered face, and then to get back into the car. This is a childish, foolish deed, without a plan, and this is how this deed should be treated. This is not a sophisticated person; this is not a clever deed, and the offense should be treated accordingly …
The innocent childish defendant is described in rulings as naïve, foolish, reckless and unsophisticated. His innocence is anchored in the perception that maturity is related to cunning, sophistication and wisdom. The innocent defendant is thus understood to be a child in an adult’s body: fundamentally a good and pure person (like Jenks’ Platonic child) who was twice unlucky, first for breaking the law, and second for being an adult chronologically while doing so. The court uses its authority to separate chronological age from psychological age, to separate wisdom from foolishness, and to attribute innocence and foolishness to childhood.
Childishness can be used as a mitigating factor even in cases where the court sees the defendant as far from innocent. For example, in an alleged rape case
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involving a drunk girl at a party, one of the three judges sitting in the appeal claimed that even though the defendant …did not assist the victim after the event, fled the place and even told her friends that she had gone elsewhere, this was the result of his childish personality and lack of maturity. Therefore, he should be treated as a kind of minor.
The judge also pointed out that the professional assessment of the defendant included mitigating descriptors such as “sensitivity, dependence, lack of security, with an ambiguous self-image of masculinity, also he was released from military service due to claustrophobia.” In considering the final decision, Judge Jubran (presiding the court) stated that The circumstances of this affair are found in the lighter end of the spectrum concerning such offenses. The defendant who appealed before the court did not exert violence on the victim. He did not ambush her and his offense was not pre-planned. He has expressed regret about hurting the victim. Both the center for danger assessment and the probation service assessing the defendant stated that his childish character influenced what happened, and because of that, the danger that these doings will be repeated is low.
In yet another case, 34 the judge, the professionals assessing the defendant, as well as his parents and the defendant himself, all labeled him as childish. Even though the defendant was found guilty as charged, the result of this concerted labeling was a mitigated punishment. The defendant kidnapped his ex-girlfriend after she had broken up with him (their whole relationship lasted two months), pushed her violently into the trunk of his car, handcuffed her and drove to a remote and lonely place “in order to talk.” After about five hours, she managed to persuade him to untie her and take her back to her apartment, where they spent the night together. The defendant, a single young adult aged 21, was described by his parents as “introverted, lacking self-confidence and childish.” The psychiatrist assessed the defendant’s personality as “childish and immature … he did not really plan what to do after kidnapping her, but did it in a childish whim to be ‘a hero’.” The defendant expressed his agreement with the psychiatric assessment and stressed that the psychotherapy he had undergone “helped to hasten my psychological maturation.” In summarizing the case, the judge concluded that “it was as a result of his personality, namely his immaturity, childishness, low self-esteem and so on, that the defendant found it so hard to accept the break up, even though to the outsider their short relationship appears banal, simple and common.”
2 The influenced childish defendant
Another trope of childishness that is associated with mitigation portrays the defendant as a secondary character in the execution of an offense. In some cases, two defendants are involved, one of whom appears dominant, and the other appears submissive, malleable, dependent, and childish. In 2004 Judge Schiff wrote a sentence 35 for two brothers (ages 22 and 26) convicted of kidnapping a ten-year-old boy for the purpose of extortion. The judge determined that the older brother was the dominant party in planning and executing the offense, while the younger brother was influenced by him. The judge quotes from the probation service review which determines that “[t]he defendant possesses a childish personality, is introverted, influenced by others and manipulated … The defendant tended to blame many others for what happened to him and found it hard to assume responsibility himself.” Later on in the sentence, the defense reinforced the portrayal of the defendant as immature and passive: “The defendant is a naïve young man with a childish personality who has never before been in trouble with the law. [He] was greatly influenced by his brother …” The influenced childish defendant attains in court a diminished responsibility for his actions.
The distinction made by the court in these cases is between the adult subject who bears responsibility for his actions and the childish subject whose behavior originates from without. Childishness is here associated with diminished responsibility, diminished guilt, and a resulting mitigated punishment. In the following two categories I illustrate how childishness can also serve to legitimize liability and an aggravated punishment.
3 The childish defendant who is unable to control him/herself
Some defendants are described as impulsive and unpredictable persons who cannot control themselves. Their lack of self-control is perceived as dangerous, prone to violence, and deserving of a more severe punishment. In a 2012 decision
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concerning car theft and disobeying police orders to stop, Judge Mizrahi associated the childishness of the defendant with an aggravated sentence: [O]ne can say that a worse than terrible review was received concerning him [the defendant]. It was conveyed in his review that what stood out were his impulsive reactions and childish and immature personality traits. He was completely self-absorbed and expressed a need for immediate gratification without any ability to delay gratification.
The court also uses the notion of childish impulsiveness to weigh the potential for recidivism. In the same vein, a 2007 sentence
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concerning a man who threatened to murder his wife states: The defendant is a young fellow with a childish and undeveloped personality, with a tendency towards manipulative behavior and a need to outwardly demonstrate self-confidence. Additionally, the impression of the probation service is that the defendant has a tendency for outbursts of rage.
While “undeveloped personality” as we saw before could be construed as mitigating, here the probation service uses it to argue that the defendant should not be trusted. Judge Abu Taha also cites the defendant’s lack of control as an aggravating factor, pointing to an instance when the defendant laughed during the trial: When the defendant chuckled while his mother-in-law was testifying on the witness stand, this left me with the impression that he, indeed, possessed a childish personality along with manipulative behavior, as described in the [probation service’s] review.
The impulsiveness attributed to a defendant may serve arguments towards mitigating or aggravating the punishment. In 2011, in the trial 38 of a man who assaulted a policeman, the prosecution quoted the probation service’s review: “The fact that the defendant has a tendency to act in a childish and impulsive way in conflict situations is worrisome.” In contrast, Judge Maimon-Sha’ashua pointed to the defendant’s impulsiveness as evidence of a merely episodic inclination: “[The defendant] has a childish and impulsive character sometimes and is aware of the problematic way in which he conducts himself.” The defendant’s impulsiveness may thus be understood either as a durable trait that increases the risk of re-offense, or as an occasional tendency that is of little concern. In those cases in which childishness serves arguments for aggravating the sentence, the childish personality is described in terms resembling Jenks’ Dionysian child – as someone who is a slave to his impulses, unable to delay gratification and incapable of foreseeing the consequences of an action. The court in these cases reasons that since the subject is unable to control him/herself, restrictions must be imposed upon him/her from the outside.
4 The childish defendant who lacks boundaries
The defendant who is characterized as childish by the probation service is often described as having difficulty in setting internal or external boundaries for him/herself (generally, the defendant is believed to have difficulty in setting both types of boundaries). In cases such as these, the probation service recommends aggravating the defendant’s punishment in order to firmly set the boundaries that the defendant him/herself is unable or unwilling to set. In the majority of cases, the exact “boundaries” that the defendant lacks are left vague and undefined. For instance, they may be described very generally as “boundaries of behavior” or “sexual boundaries.” In other cases it is stated that the boundaries being discussed are between “good and bad” or between “permissible and prohibited.” In 2012, a court decided
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to reject an appeal on the terms of house arrest for a man convicted of assault. The decision relied, among other things, on a probation service review which the judge described as follows: The impression of the [probation] service is of childish and immature personality traits, difficulty in regulation and control of his impulses, difficulty in coping with external boundaries and difficulty in setting internal boundaries for his behavior.
The precise nature of these boundaries, or the defendant’s difficulty in setting or abiding by them, is never described by the judge.
A ruling
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from 2012 cites another probation service review describing a childish defendant who has trouble setting boundaries: The review in the matter of the defendant is negative, noting that it contains considerable childish features [such as] difficulty in setting boundaries, an indistinctness between permissible and prohibited, a need to impress others and present himself in a positive light, but difficulty in reference to those problematic parts of his personal and marital life …
Based on cases such as this, in which the “boundaries” in question are nebulous and undefined, it can be argued that the court’s use of the concept of “lack of boundaries” is itself lacking in boundaries. It is, at the very least, highly ambiguous. The use of “childishness” as a trope in this context denotes and stresses the hybridity and ambiguity that are perceived to characterize the adult defendant.
VI. Contrasting Interpretations of Childishness in the Same Case
There are cases in which there is overt disagreement regarding the interpretation given to childishness. A sentence
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from 2010 concerns a male janitor at an elementary school who allegedly touched a boy in the genital area. The probation service determined the defendant to be dangerous due to his childishness, and recommended imprisonment rather than therapeutic treatment. Judge Maimon-Sha’ashua cited precisely the same child-like personality traits, but in the service of the opposite recommendation: Sending a young man with a childish and weak personality, like the defendant, to jail, even for a short while, is liable to turn him into an easy target for sexual or other abuse by convicts, particularly due to the type of offense he committed, and [is liable] to worsen his mental state and even the degree of danger he poses.
Childishness appears here to denote helplessness and vulnerability which necessitate protection. In a sentence 42 handed down in 2004 to a man who attacked and wounded his girlfriend, the probation service presented the defendant’s childish personality as the source of his crime, and attempted to reduce his responsibility on those grounds: “[This is a man] who possesses a childish personality who got in trouble with the law due to personality problems and a lack of tools for coping with emotional situations in his relations with the complainant.” Judge Ravid rejected this argument and interpreted the defendant’s childish personality more harshly, emphasizing its Dionysian aspects: “The defendant has violent impulses, and there are aggressive parts in his personality.”
In another case of a man accused of stabbing his ex-wife to death in the hallway of her house, 43 two conflicting expert testimonies were brought before the court. They concerned, in particular, the defendant’s claim that he suffers from a psychiatric disorder, for which he requested to be hospitalized twice during his arrest. Both psychiatrists who assessed the case claimed that the defendant’s claim concerning his alleged psychiatric disorder was very manipulative. However, one psychiatrist called it “infantile and childish manipulation” that does not diminish the defendant’s responsibility and capacity for planning; while the defense argued that based on the other psychiatrist’s assessment, the same childishness was part of the defendant’s reduced cognitive capacities, and could not rule out the “authentic nature of his psychiatric disorder.”
Cases in which childishness is interpreted in conflicting ways support the argument that the determination of the defendant’s mental age by the court is not simply a technical task but an expression and display of its authority. The very act of attributing childishness to the defendant, the very determination that his/her chronological age is not the age that defines his degree of danger to the public or his responsibility for his actions, is an act that reflects the legitimate power of the court.
VII. In Conclusion
Criticism of “developmentalism,” the perspective in which childhood and adulthood exist on a continuum, is well grounded in the theory of childhood. 44 In keeping with this critique, and as part of the overall intellectual engagement in de-naturalization of mankind and society, 45 this study treated childhood and adulthood not as discrete categories or as two ends on a continuum, but as entities created out of their relationship with each other – a relationship that includes confluence and overlap as well as divergence and contradiction. Childishness in court is a label rather than an essence (compared to Butler). 46 The childish subject is a product of linguistic actions within a field of discourse, and the performance is the medium in which the subject is constructed. In queer theory, binary gender performances form the social order, and while they can be subverted and blurred at specific times by specific transgender actors, these subversions already reproduce and reaffirm current power structures. 47 The same can be said concerning the construction of the “childish adult” in court.
My analysis supports Spencer’s 48 claim that the complexity and paradoxical nature of constructions of youth violence (or childish defendants, in my case) allow for a broad range of ideological interpretations – from control/punishment to a rehabilitation position. The category of the “childish adult” is created by the court not to challenge its category-defining power but indeed to strengthen it. The court has the authority to determine whether a given defendant can be excluded from the accepted binary age classification, being deemed simultaneously an external adult and an internal minor (or vice versa). This privilege allows courts to monitor the defendants that enter the courtroom, to impose strict control on the subject’s behaviors, and to obscure the “real age” of the defendant. 49 Labels are an outcome of attempts to control, not an empirical truth awaiting discovery. The court’s clemency toward childish defendants is among its most potent displays of power. Thus, while objectified legal discourse continues to claim that the act of definition facilitates comprehension, the bottom line of this study reminds us about labeling theory’s major premise, namely how definition facilitates control.