The Doctrine of Incapability and the Emperor's New Clothes: A Protected Defendant or Non-Existent Offences?

Abstract

The doctrine of incapability was a, now abolished, centuries-old presumption that a boy under 14 years of age was unable to commit an offence that required that he be an agent participant in an act of sexual intercourse. Rape, unlawful sexual intercourse, buggery, and offences of incestuous sexual intercourse were all unavailable to the prosecutor if D was under 14. Although abolished, the practical application of the doctrine is by no means dead, as shown by its appearance in R v J.OC (2012). It is likely that future historical prosecutions will throw it up yet again. Judges and scholars have often assumed that the ridiculous effect of the doctrine was eradicated by the revision of the law on attempt in 1981, even before the doctrine itself was disposed of by s. 1 of the Sexual Offences Act 1993, and the courts have sometimes circumvented application of the doctrine by convicting for indecent assault instead. This article will show that they were all wrong and, should another defendant come to trial accused of relevant offences, then, however distasteful the proposition is, we must accept that defendant's acquittal.