"A man who raped a 10-year-old boy at a swimming pool in Austria has had his conviction overturned after judges found he may have believed the child consented."

[strangerintheday]

link here

Please someone explain to me the logic of this because I am completely and utterly lost for words.

[IcaMorgan]

Ive just been informed that with the retrial it could mean him going to prison for 16 yrs rather than the 6 he got. So it could be a good thing

[FarelyKnuts]

From the article. .."While the sexual abuse verdict was “watertight”, the more serious offence requires evidence that the defendant knew their victim did not consent to sex."

[SparkleFlutterShy]

There are actually people who believe that children can consent to sex. In some cultures middle aged men are marrying and having sex with pre pubescent girls.

Nothing to add but just saying that some people who do these things to children don't believe what they're doing is damaging to the child.

[strangerintheday]

But we are not talking about "some people" here. I understand that the Austrian Supreme Court found the rapist "may have believed the child consented". It is going back to re-trial because the rapist's lawyers argued his conviction is unsafe because of the way consent was understood.

So, whether the re-trial may be a "good thing" because he ends up locked for longer is not relevant. The re-trial ordered not because of the short sentence but because of the issue of CONSENT.

This is happening in the heart of Europe, where 10 year old children have to give consent for having violent sex with strangers in swimming pool lockers. Apparently. Or I am misunderstanding something here. So, please , explain it to me because I cannot make any sense out of it!

[strangerintheday]

"can" not "have to"

Anyway, I wonder if this is a legal technicality here that I don't understand. I would be utterly grateful if someone legally savvy could shed some light on that.

[Amandahugandkisses]

My god that poor boy.
Speechless.

[Qwerdy1234]

I don't understand this at all.

What difference does it make whether this MONSTER believed it was consenual or not.! It wasn't! It was rape.
So he could be a complete nutcase and 'believe' something and that makes his sentence different?!

Can anyone explain this better?

[Amalfimamma]

WTAF?

[Redrocketship]

Any rapist could say that they 'believed' the victim was consenting and use that as a defence. Even though this was clearly rape, the boy ended up in hospital because of his injuries fgs, dont they have age of consent laws in Austria? A 10 year old is not capable of giving consent regardless of what the perpetrator might believe so why do they need to establish this?

Will the poor child have to go through the trauma of another trial now? Disgusting

[Qwerdy1234]

I'm finding this so upsetting.

On what planet does anyone think a 10 year old boy would consent to sex that leads to serious injuries, with a 20 year old man who is a complete stranger to him??

I can't get my head around it.

[WyldFyre]

From the article. .."While the sexual abuse verdict was “watertight”, the more serious offence requires evidence that the defendant knew their victim did not consent to sex."

Reading this it suggests not that the accused believed he had consent but that the prosecution failed to establish beyond doubt that he didn't.
It seems to be more down to a failing in the trial proceedings than anything else.
Seems a trivial difference but whole cases can stand and fall on small details.

[prh47bridge]

This case highlights one of the differences between UK law and Austrian law. In the UK sex with a child under 13 is always classed as rape whereas consensual sex with a child under 16 is classed as the lesser offence of sexual activity with a child.

In Austria the age of consent is 14, two years younger than in the UK. A number of websites state that sex with a child under that age is statutory rape in Austria. This is wrong. Consensual sex with a child under that age is classed as a form of serious sexual assault (although there is an exemption when the perpetrator is less than 3 years older than the child). The sentence for this form of sexual assault is up to 10 years in prison, rising to 15 years if the child is seriously injured or becomes pregnant, rising even further if the child dies as a result of the assault. Consensual sex with a 10 year old is not classed as rape in Austria.

In this case the attacker was convicted of both sexual assault and rape. The sexual assault conviction stands but the rape conviction has been overturned as Austrian law requires evidence that the attacker knew the victim did not consent - this is similar to UK rape law for victims over 13 where the prosecution have to prove that the victim did not consent and the rapist did not reasonably believe that the victim consented. The Supreme Court in Austria was of the view that the first court failed to establish whether or not the attacker knew the victim did not consent and therefore the conviction could not stand.

The Supreme Court in the UK would never make such a decision as it would be clearly contrary to UK law. However, the decision appears to be in line with Austrian law.

I don't think anyone is arguing that the child in this case consented. The question is whether it has been proven that the attacker knew the child did not consent.

This is certainly not a case of the Supreme Court going out on a limb and coming up with a strange decision. I don't know how much attention this case is getting in Austria or whether it will lead to pressure to change the law. I hope the law does change in Austria. In my view sex with a child of this age should be treated as rape regardless of consent.

[slenderisthenight]

WHAT?!!!

I have no words.

[slenderisthenight]

The justice system is seriously awry if the 'more serious' offence related to consent rather than to child abuse.

There should be no comparing the two. But if anything child abuse should receive a longer sentence than anything else on earth IMO.

Just appalling.

[slenderisthenight]

Consensual sex with a 10 year old is not classed as rape in Austria.

This is abhorrent.

[prh47bridge]

I'm not sure I would go so far as to call it abhorrent since it is classed as a serious crime. I would reserve that label for jurisdictions where the age of consent does not apply within marriage and children of 10 or younger can marry.

Whilst I accept some may consider calling it rape important for the message it sends, my concern with the Austrian system is that consensual sex with a 10 year old is not punished as severely as rape rather than the fact they don't call it rape.

[Redrocketship]

How can sex with a 10 year old be consensual?

[slenderisthenight]

ph

Well, your view is convoluted interesting but I think that having a category for rape of ten year olds that is not called rape is abhorrent. Getting into a 'no that's not abhorrent because this is more abhorrent is ridiculous and petty.

[prh47bridge]

You misunderstand. I was saying I find it difficult to call it abhorrent when they class it as a serious crime.

By your standard a lot of countries have abhorrent legal systems. Many countries do not refer to the offence of having sex with someone under the age of consent as rape.

[PoldarksBreeches]

this wouldn't happen in the uk (shouldn't) because a) 10 year olds can't consent and b) the onus is on the alleged perpetrator to prove they reasonably believed the victim consented rather than the victim proving they didn't.
Other countries have shitty legal systems shock.

[prh47bridge]

For what it is worth, sex with a 10 year old was not classed as rape in England & Wales until 2003. Prior to that the offence was "intercourse with a child under 13".

[prh47bridge]

the onus is on the alleged perpetrator to prove they reasonably believed the victim consented rather than the victim proving they didn't

No it is not. The victim never has to prove anything. But in a criminal case the onus is always on the prosecution to prove its case. All the defendant has to do is raise reasonable doubt that they could have reasonably believed the victim consented.

[TheWoodlander]

That is so fucked up. How can a 10yr old consent?

[slenderisthenight]

By your standard a lot of countries have abhorrent legal systems.

By my standards there's a great deal of shocking injustice in the world, yep.

[slenderisthenight]

I don't quite understand the one-upmanship where these crimes are concerned. Why do you want to reserve a special corner for your 'pet' crimes and make sure nothing else sits there, even if it's the notion that a ten year old can be abused without it being rape?

What a fucking strange thing to want to do.