The common law defense of infancy remains applicable in criminal proceedings where the defendant is being prosecuted for conduct committed before the age of 14, the Pennsylvania Superior Court ruled in Com. v. Martz, __ A.3d __ (No. 1502 MDA 2014, filed June 24, 2015). In 2014, Dereck Michael Martz, born in 1985, was charged with numerous crimes related to alleged sexual assaults of a minor between 1996 and 2002. Proceeding pro se, Martz raised an infancy defense and sought dismissal of counts for abuse he allegedly committed between the ages of 11 and 17. The trial court granted Martz’s motion in part and dismissed counts related to acts he allegedly committed prior to reaching the age of 14. In doing so, the trial court held there was rebuttable presumption Martz lacked the capacity to appreciate the wrongfulness of those acts, which the Commonwealth had not rebutted. The Commonwealth appealed the interlocutory order as of right pursuant to Pa. R.A.P. 311(d).
Writing for a unanimous Superior Court panel, Judge Shogan reversed. The Court first rejected the Commonwealth’s argument that the infancy defense was abrogated by the Juvenile Act, 42 Pa. C.S. §§6301-6375, which establishes a presumption of capacity for children over the age of 10. Citing its own precedent, the Court explained that “the defense of infancy, created to protect children from retribution in recognition of their inability to differentiate right from wrong, is irrelevant to a determination regarding a juvenile’s amenability to treatment, rehabilitation and supervision.” In short, the infancy defense remains viable in a criminal prosecution for conduct committed before the age of 14. The Court also rejected the Commonwealth’s assertion that the infancy defense is an affirmative one to be raised at trial rather than a rebuttable presumption to be raised before trial. Nevertheless, the Court found that the Commonwealth was not provided with a full and fair opportunity to present rebuttal evidence in this case; accordingly, the case was remanded for further proceedings.