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with the recent JonBenet Ramsey documentary, many people now feel Burke was the killer. Since he was only 9 yrs old, he could not be charged in Colorado since the minimum age was 10 yrs old at the time (under that age a juvenile cannot commit a crime, so no crime occurred??). His parents were indicted as accessories (perhaps not the exact term) but never brought to trial. Many wonder why - is it possible that due to shielding laws, no evidence against Burke could be introduced (due to his age or the fact he was not being charged) and therefore there was very little that could be presented in court? Can an adult be an accessory to a 'non-crime' if Burke is completely shielded, and in essence no crime was ever committed in the first place?

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In general, a guilty action also requires a mens rea, or guilty mind, in order to be guilty of a crime. A child who is too young to form an intent to commit a crime cannot be guilty of a crime. The toddler who finds a loaded gun and shoots someone isn't guilty of assault or murder because the toddler couldn't have formed the intent to commit the crime.

Under the more modern Model Penal Code definitions, Strict liability laws are applied regardless of intent, but negligent, reckless, knowing, and purposeful states of mind all require some level of intent, and again, a child is unable to form this intent.

The defense of infancy is a defense against the formation of a mens rea by a child's age. In English common law, under the age of 7, infancy was a complete defense. Age 7 to 14, infancy was a rebuttable presumption, and over 14 were presumed capable. In the US, some laws set different ages, as corrected in the comments, CRS 18-1-801 states that "No child under ten years of age shall be found guilty of any offense."

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    Colorado does not rely on English common law; as OP correctly notes, they set the minimum age to 10 by statute. Also, the question was "can the parents be guilty as accessories," which may have a different answer than "can the child be guilty of a crime."
    – cpast
    Sep 29 '16 at 5:24
  • Thanks for the clarification on the CO law. Do you have the statute citation? I took a quick look and couldn't find it. As to your other point about the question asked, I was responding to this part of the question: "(under that age a juvenile cannot commit a crime, so no crime occurred??)" and a related question about evidence in court against Burke that was hard to decipher. The last question is indeed about accessory liability, which I did not answer.
    – David
    Sep 29 '16 at 5:37
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    It's section 18-1-801.
    – cpast
    Sep 29 '16 at 5:44
  • so is it possible the DA was unable to proceed against the Ramsey's at all even if he really did want to, due to not having any ammunition? Since anything related to Burke's involvement would be inadmissible due to his age, and him being (presumably) the killer, that's a pretty big hole to fill with nothing. I'm not sure if Catch-22 or Twilight Zone is more appropriate here if that's the case. Sep 29 '16 at 6:18
  • I don't believe that an inability to prosecute Burke would preclude trying the adults, depending on the exact facts of the case. If the adults participated in the murder, then they may have primary criminal liability in some capacity, depending on the exact facts. One advantage to might be that since Burke couldn't be charged with a crime, he can be compelled to testify because it wouldn't violate his fifth amendment rights against self incrimination.
    – David
    Sep 29 '16 at 21:02
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the crime is still committed; the law itself does not define the crime as pertaining only to a particular age group. its the difference between law breaking and law enforcement. just because you cant do the latter doesnt mean the former didnt happen.

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  • I think the DA at the time mentioned the situation was "complicated" which based on the age aspect is an understatement. Even if he wanted to bring the Ramsey parents to trial, all the shielding for Burke would seem to render his case totally empty. In the end Burke's age (by a few months) may have prevented the Ramsey's from spending a considerable amount of time in prison, especially if one did the actual strangling of a brain-dead JonBenet (A scenario involving just the ransom note and protecting Burke would seem to be far less punishable) Sep 30 '16 at 21:08

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