7

The Sun's headline says:

SHOCK RULING Outrage as Iraqi migrant who raped boy, 10, in ‘sexual emergency’ at swimming pool has conviction OVERTURNED because court couldn’t prove the child said ‘no’

I came across this article which made an outrageous claim that a 10 year old child had to prove they did not consent to sex. From what I understand, however, is that the source is not very reliable. Is there any truth to the article?

Brythan
  • 10,162
  • 5
  • 46
  • 53
user39270
  • 73
  • 2
  • It's The Sun. They do not have a track record as a reliable source. If you don't believe me ask any resident of the city of Liverpool how truthful the Sun is. – GordonM Mar 21 '17 at 14:05
  • @GordonM which makes it a good thing it's being asked about here. – Andrew Grimm Nov 25 '17 at 05:19

1 Answers1

11

It is not true that it had to be proven that the child did not consent (children under 14 cannot consent to sex).

It is true that the trial must be repeated because of a technicality. Specifically, the court should have determined that the perpetrator knew that the victim did not agree to the sexual actions. The court however did not establish the intent of the perpetrator, which is a procedural errors that results in a retrial.

Here is a report about the case by the ORF:

Der Oberste Gerichtshof (OGH) hob am Donnerstag das erstinstanzliche Urteil - sechs Jahre Haft - teilweise auf und ordnete in diesem Umfang eine Neudurchführung des Verfahrens an. Ausschlaggebend dafür waren Feststellungsmängel, wie Senatspräsident Thomas Philipp darlegte.

Während das Ersturteil hinsichtlich des schweren sexuellen Missbrauchs eines Unmündigen „wasserdicht“ ausfiel - der Schuldspruch in diesem Anklagepunkt wurde vom OGH bestätigt und gilt damit als in Rechtskraft erwachsen -, waren dem schriftlichen Urteil zum zweiten Anklagefaktum, der Vergewaltigung, formaljuristisch erforderliche Feststellungen nicht zu entnehmen.

Denn laut OGH hätte das Erstgericht feststellen müssen, ob der Täter gedacht hat, dass das Opfer mit der sexuellen Handlung einverstanden ist. Also ob der Angeklagte den Vorsatz hatte, gegen den Willen des Buben zu handeln. Dieser Vorsatz wurde nicht ausreichend festgestellt - daherhob der OGH den Schuldspruch wegen Vergewaltigung auf.

My translation: The supreme court (OGH) has partly repealed the first verdict - 6 years imprisonment - on Thursday and ordered a new process in this scope. Procedural errors were decisive for this, according to senate president Thomas Philipp. While the first verdict regarding the severe sexual abuse is air tight - the guilty verdict was confirmed by the OGH and is thus legally binding, there were technical errors because of missing assessments in the written verdict of the rape sentence. According to the OGH, the first court should have assessed if the perpetrator thought, that the victim consented to the sexual acts. Meaning if the accused had the intent to act against the will of the boy. This indent was not properly assessed, which is why the OGH has repealed the verdict regarding rape.

Here is the official court document:

Zutreffend zeigt der Beschwerdeführer jedoch auf (nominell Z 9 lit a, der Sache nach [wegen des in Idealkonkurrenz verwirklichten Verbrechens des schweren sexuellen Missbrauchs von Unmündigen] Z 10), dass das Urteil zum Schuldspruch A/II keine Feststellungen zu einem auf fehlendes Einverständnis des Opfers (bei dem es sich um ein implizites Tatbestandsmerkmal handelt) gerichteten Vorsatz des Täters enthält (Philipp in WK2 StGB § 201 Rz 35 f; Hinterhofer, SbgK § 201 Rz 54; Kienapfel/Schmoller BT III2 §§ 201–202 Rz 34; vgl 13 Os 43/14v; 15 Os 62/11y; 13 Os 77/06g). Dieser Rechtsfehler mangels Feststellungen zwingt zur Aufhebung des davon betroffenen Schuldspruchs, demgemäß auch des Strafausspruchs samt Rückverweisung der Sache in diesem Umfang an das Erstgericht.
My translation: The Complainant shows correctly [...] that the guilty verdict does not contain assessments of the intention of the perpetrator regarding the missing consent of the victim (which is an implicit Tatbestandsmerkmal). This error of law caused by the missing assessment forces the repeal of the affected guilty verdict, as well as the sentence including the referral of the issue in this scope to the first court.

Originally, the perpetrator was convicted to 6 years. At the retrial, he was convicted to 7 years.

Community
  • 1
tim
  • 51,356
  • 19
  • 207
  • 177
  • Was the child ten or older? Seems odd to me that sexual interaction with a child of ten is not automatically illegal, despite the child's "consent". The youngest "age of consent" I've heard is Norway at 12 years old. –  Mar 18 '17 at 15:20
  • 9
    @fredsbend The child was 10 and the minimum age of consent is 14. Children below that age cannot legally consent, and sexual interactions with them - ie rape - are indeed illegal. This isn't what the court objected to though. What they object to is that the previous court did not determine the intent of the perpetrator in their judgment. This is pretty much just a technicality, and the perpetrator is almost guaranteed to be convicted at the retrial (at which it must *not* be proven that the child did not consent, but that the perpetrator had the intent to rape the child). – tim Mar 18 '17 at 15:28
  • 3
    the retrial already happened (though it can still be appealed, so it isn't final): http://www.krone.at/nachrichten/theresienbad-sextaeter-zu-7-jahren-haft-verurteilt-strafe-erhoeht-story-543898 . He was sentenced to 7 years in the second trial. – Mad Scientist Mar 18 '17 at 15:36
  • 2
    @fredsbend You must check your facts! I'm from Norway, and our AoC is **16** (the same as in UK) - and has been for a long time. Most EU-countries though got 15 as AoC though (with a few at 14). I think Vatican City got 12 as AoC. In Norway it's legal for teens younger than 16 to have sex, and a 16yo boy with a 14yo girl - or a 18yo boy with a 16yo girl - is unlikely to be prosecuted if consensual (they'd be concidered "eually developed"). An adult (18+) having sex with a child under 16 would face prosecution, and harsher and automatically considered rape if the child was under 14. – Baard Kopperud Mar 18 '17 at 15:48
  • Could further add that if the person is under 18; they can't legally be photographed nude/sexually and shared (even by themselves), make pornography, nor sell sex. For teachers, sports coaches, doctors and such; additional restrictions applies in addition to AoC. – Baard Kopperud Mar 18 '17 at 15:58
  • @BaardKopperud Thank you for adding this context. I *heard* 12 and thought it was Norway, and took that at face value. I'm in the USA, where this legal situation is a lot more strict, so I'm not familiar with the array of other countries' procedures. –  Mar 18 '17 at 17:09
  • @tim, please add an English translation of the German sources. – SIMEL Mar 18 '17 at 22:27
  • 2
    @SIMEL I thought about creating a direct translation, but translating complex legal topics word for word is a rather complex task, which should really be done by a professional translator versed in legal texts. I'm also not sure if it would add much value (Instead of trusting the correctness of my summary, you would have to trust the correctness of my translation). – tim Mar 18 '17 at 22:34
  • @tim, right now, your cited sources are incomprehansable to me and many other users. You can leave some umbeguity in the translation, but add it non the less, otherwise, for the majority of users, it's as if you didn't anything. – SIMEL Mar 18 '17 at 22:39
  • Also, at least to me, it sounds that "did not establish the intent of the perpetrator" means that the court thinks there is a chance that he just walked around the pool, slipped and penetrated the boy by accident, repitedly, it would be great to see in the court documents that it's a technicality and not the court thinking that rape hapens by accident. – SIMEL Mar 18 '17 at 22:41
  • @BaardKopperud The Vatican City used to have an AoC of 12, but now it's 18 for unmarried individuals, moving it from the lowest in Europe to the highest. https://en.wikipedia.org/wiki/Ages_of_consent_in_Europe#Vatican_City – Andrew Grimm Mar 18 '17 at 22:48
  • @SIMEL I added a translation. And the court makes it relatively clear that it is a technicality/procedural error. It says that the determination of intend is a required step, which was missing in this case. – tim Mar 18 '17 at 23:00
  • Thank you for your answer. Can you explain why the intention of the accused is of importance if the victim is underaged and what difference it would of made? – user39270 Mar 19 '17 at 17:01
  • 1
    @user39270 I'm not that versed in the details of Austrian law, but as I understand it, the assessment of intend is *always* relevant or at least technically required, independent of age. So the case would have been the same if the victim would have been 18 or older. – tim Mar 19 '17 at 17:46
  • 5
    @user39270 Imagine, hypothetically, if the accused were coerced or threatened. Or imagine if the accused was blindfolded and the "victim" secretly traded places with his adult boyfriend. Or if the accused were mounted by the "victim" as he slept. It matters that he intended to penetrate the victim as that is an element of the offense. (Of course, it seems he clearly did intend that here, so no surprise he was convicted on retrial.) – David Schwartz Mar 20 '17 at 20:58
  • @SIMEL - My assumption was that for the specific charge or a specific charge, intent is part of the equation. You can't convict someone for murder without establishing intent, for instance. That doesn't mean that you can't be convicted of a related charge if intent is not proven, so I'd guess the court was saying "Fill in the missing required component, or convict of a lesser offense." Clearly, they were able to meet that requirement at retrial. – PoloHoleSet Mar 22 '17 at 14:12