Man walks free from court after statutory rape

[AssassinatedBeauty]

Saw this news case today, and am not sure what I think:

www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-39305042

I feel that it gives the message that it's ok for men not to worry about the age of girls/women they have sex with if they have reasonable grounds to believe they're 16+.

Jean speaks the truth about how some men view female bodies

If anyone finds that unpalatable, I say tough shit.

LadyLance - yes, reasonable belief that someone looked older is not a defense to the crime of statutory rape (which is why he was guilty). However, it can be relevant for sentencing, which is distinct from determining guilt. That's how the judge used it here.

I do think physical appearance has to be one relevant factor (not the only factor) in forming a view on someone's likely age.

I accept it may be I am just uncomfortable with any graphic dscriptions of rape/abuse. I couldn't work it out. Maybe i was reading it too literally about this case.

Whatever. I give up. There is clearly no space to discuss thoughts on a difficult subject - even when you agree on the most fundamental aspect of the discussion.

I certainly think that squeamishness about what a 19yo did to a 12yo has no place in reducing the powerful words of a commentator like Jean Hatchet.

It is pure objectification, isn't it.
And the judge is saying that's ok.

NoWinNoFfi I guess I just don't understand how something that's not a defense can be used to allow him to walk away basically free. I can't find a definitive answer as to whether this would come up on a DBS check now either. I hope it would, as surely he's not suitable to work with vulnerable children, for example?

If this is truly the correct interpretation of the law, then imo the law is wrong and should be changed.

I do feel like the judge has too much sympathy for the rapist, though, and I feel like that's common in our legal system.

It's not an 'extreme idea' it's just the law.

No. It's not. The law is that you have committed a crime if you have sex with someone aged 13-15 when you either know they're underage or when it wasn't reasonable to believe they were over 16. You have also committed a crime if you have sex with someone aged under 13 regardless how old you think they are. In the latter case, the law also makes provision for a judge to go outside the normal sentencing range in a case deemed to be highly unusual, which is what the judge did.

Requiring people to know with 100% certainty that their partner is over 16 is not what the law says. Some people are proposing it should say that. Others, including me, are disagreeing.

If they're weren't 100% sure in that scenario then they didnt have sex with them that night.

No one could ever be 100% sure in that scenario. And yet, as you noted, many people do go home with someone they meet in a bar or club and have sex that same night. This is not generally considered abnormal behaviour. Handbag described quite accurately earlier what would be involved in making absolutely sure. It would require much more than looking at their Facebook.

The thing that gets me is the sole reason he seems to have been let off is because she looks grown up. It doesnt seem right to me just because shes mature looking does that mean she isnt as worthy as a young looking 12 yr old to being protected by the law?

As for the ons thing ive never had a ons, lived my teenage years as a miserable recluse and didnt even kiss someone till i was 19 but even i knew people hooked up for sex while hardly knowing each other. It may not be for everyone but it happens.

Coverup There's a difference between hardly knowing someone and meeting them in a taxi queue though. At 18/19 I had sex with a few friends of friends the night I met them, but knowing they had come out with my 18 year old friend, they were hardly going to be 12. Yes, they were a stranger, but it's a different kind of stranger.

Picking up a complete stranger who you believe to be 4 years younger and therefore vulnerable is not something every older teenager does, and I don't think it's a good idea to normalize this.

Lady a defence would mean you are not actually guilty of the crime. Many other factors can have a bearing on the sentence. Pleading guilty, for example, means an automatic sentencing reduction.

The logic behind the offence being strict liability for under 13s (meaning he's guilty even if he believed her to be 16) is partly that it would not usually be plausible to argue that a 12 year old could reasonably be mistaken for a 16 year old. The implausibility of that is usually considered to render the "reasonable belief" defence void. However, the law allows for cases where a combination of unusual characteristics means believing her to be 16 was reasonable. It doesn't alter the strict liability, which is why he has a conviction. But it has a bearing on the sentence.

I wasnt trying to normalise it personally i find the thought of sex with a complete stranger repulsive. I made my dp wait a few months before we had sex. I was just saying that it does happen sometimes.

I feel the problem with this is that it's based on what he said he believed and luckily for him 2 police officers and a taxi driver backed him up. A hundred other people could have seen her that night and said she didn't look a day over 14 for example, but we don't know.
Is the sentence because although he did commit a rape and admitted to it he didn't believe he was doing it at the time? Does this hold for other crimes?

I wonder, really, how many people look back on random encounters in their teens and feel great about them.

Is the sentence because although he did commit a rape and admitted to it he didn't believe he was doing it at the time? Does this hold for other crimes?
For most crimes, a lack of intent (and recklessness or criminal negligence can be enough to establish intent) will mean that no crime was actually committed. That's not true for strict liability offenses, but can be relevant to sentencing.

No. It's not. The law is that you have committed a crime if you have sex with someone aged 13-15 when you either know they're underage or when it wasn't reasonable to believe they were over 16. You have also committed a crime if you have sex with someone aged under 13 regardless how old you think they are. In the latter case, the law also makes provision for a judge to go outside the normal sentencing range in a case deemed to be highly unusual, which is what the judge did.

Yes it is. As I said, if a teenager over 18 makes a 'reasonable assessment' that their partner is over 16 but they're not sure, if they are wrong they are open to a charge of sexual activity with a child. That's just a fact.

If it came to it, they would have to convince the police and the court that belief was reasonable. And they might fail.

As we all know there are blokes who don't ask, don't care or actively target a girl who is underage.

The standard defence for being caught having sex with an underage partner is reasonable belief that they were 16, everyone uses that. Doesn't mean they believed it, or the belief was reasonable or that they even asked.

Equally, the standard defence for rape (of complainant 13 and above) is reasonable belief in consent. Everyone uses that too. In that case you also have to show that that belief was reasonable. Ultimately it's up to the court to decide.

Requiring people to know with 100% certainty that their partner is over 16 is not what the law says.

What I have said was that if you're not 100% sure then don't go there as it's not worth the risk.

No one could ever be 100% sure in that scenario.

Driving license, driving itself, someone from work you don't know but recognise. A mate of someone from work. Someone who was at uni with a mate. A stranger but you recognise from your local vet/GP/law practice/dentist etc, yes you can be sure someone's not 15.

And btw the FB comment was specifically with reference to this case - in this case just looking at Facebook snaps would have been enough to be clear this girl was not 16.

Nancy, I think that's disingenuous. If the victim had a Facebook page that said she was 16, and had pictures of her looking, apparently, 16+, would that have been sufficient to give the offender the "all clear" in your view?

Nancy are you saying you know the victim?

No, but that's not a very likely scenario and really - a bunch of photos of 12 year old girls without the benefit of a dark night, makeup up, heels, etc, in school uniform etc, it would clearly indicate that a girl was not 16.

Before anyone says you have to be 13 to be on FB, I know, but many 12 year olds have them anyway.

My son's 12, he has one friend who's 13 who might pass for 14/15 as he's quite tall and chunky and his voice has broken, but if you saw that boy with my son and other school friends it would indicate he was not.

No, I don't know her, I just know what photos of 12 year old girls look like. I've got plenty of my own. They do not look like photos of 16 year old girls.

Fucker - I say tough shit.

Whatever.

For most crimes, a lack of intent (and recklessness or criminal negligence can be enough to establish intent) will mean that no crime was actually committed. That's not true for strict liability offenses, but can be relevant to sentencing.

I think this issue of 'recklessness' is important here. Orchid keeps saying, well, you can't be 100% sure. But the degree of recklessness is going to make a massive difference to the chance of getting it wrong. There may have been no intent, but a young man picking up a teenage stranger and having a ONS is - whether currently not unusual behaviour or not - reckless behaviour.

Questions of intent and recklessness are questions asked ONLY when deciding on the issue of guilty or not guilty. They don't arise here, as the offence is one of strictly liability. Very few serious offence are strictly liability. So, it does not matter if he had intent to commit the offence OR whether he was reckless as to her age OR he thought she was over 16. The law says in this particular case it does not matter - you commit that act, then you're guilty of the act, no matter what you thought.

So, having fully established guilt, the court moves on to sentence and listens to the aggravating features and the mitigating features of the case.

Is recklessness not an 'aggravating feature' then? If not, perhaps it should be.

Yes, you're right - I don't know how much additional evidence gathering would be involved - none if the prosecution agreed with defence on the issue of her appearance.

"...whilst there is no defence to this offence because of strict liability, the fact is that you would have had a defence if the victim had been a few months older. The statutory offence for girls aged over 13 to 16 years provides for a defence based on reasonable grounds of belief by the accused that the victim was above the age of consent. It is clear from the agreed facts presented to me that the Crown would have been unlikely to, or unable to, exclude such a defence and they do not dispute this. Accordingly, it is very unlikely the Crown could prove a crime had the victim been over 13 years of age.

The relevant facts related to there being such reasonable grounds, and relating to sentence, include:

...In particular the assessment of the police officers who had no concerns about the victim’s age, in the context of having spoken to her at some length *and at a time when they specifically looking for youths who were too young to be out and about in the streets..."

An extract from the Judge's statement which I think lies at the heart of what made this case, and the absolute discharge, "exceptional". It's going to be pretty hard to find him "reckless" when the Police who were actively "looking" for underage kids didn't think she was underage.