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+.

I feel like the sentencing statement contradicts itself- firstly, it says the police officers arrived at 3.30am, and spent "some time" talking to the victim. Then it says by about 4am, she was in the taxi queue. How long is "some time"? It seems like 10-15 minutes, during which they identified the missing girl they were looking for. It seems reasonable this might have distracted the police- although you'd think there would be some concern about the others in the group.

I can see how the police might want to cover their backs a little having left (at least) two young girls who had been drinking out in the city center.

However, the thing I really don't like from the judge's statement is the implication that a 12yo can basically consent to sex "Here the victim willingly participated in the sexual intercourse and there was, in fact, consent."- A 12yo cannot consent by law. It would be better if the judge had something like "there was the appearance of consent". It seems like she feels the law is wrong, and actually, young children can consent to sex.

I feel like the judge has far too much concern about his distress, and not enough about the girl's. Maybe she is not distressed right now, but when she is 19, or 21, I'm sure she'll look back and wonder why more was not done to protect her.

"Nor do I consider there is any basis for, or real public interest in, requiring your notification under the Sexual Offences Act 2003". I also disagree with this really strongly. At best, he's shown he's willing to have sex with a girl he though (but wasn't 100% sure) she was 16, that he barely knew. He knew she had been drinking and imo he took advantage. Even if she had been 16, she was still in a vulnerable situation, and he chose to sleep with her, apparently barely knowing her (which is not a crime, I know, but it's not excellent behaviour, either). It shows a lack of judgement, which is relevant if he ever wanted to work with young people or vulnerable people. If I was an employer in that situation, I'd want to know- surely that's the point of a DBS check?

I also don't like the wider message the judgment sends out- that some 12 year olds can consent in some circumstances, that it is ok for an adult to have sex with a pre-teen in "exceptional circumstances", that it's ok to have sex with a child if they "look older". That the impact on the rapist's life matters and men have no responsibility to be careful who they sleep with.

I agree with previous posters that if we expect this of shopkeepers and bar staff, if we expect people to have some responsibility about not driving drunk, surely it's not too much to make sure the person you're about to have sex with isn't actually 12. To me, a 19yo man picking up a 16yo in these circumstances is bad enough and making people think twice in that situation is no bad thing.

It feels like some areas of society view men as having an unalienable right to sex, and anything that could possibly interfere with that is far more terrible than the idea we might actually protect female children (or any children, come to that).

I agree with you LadyLance

Judge Scott said there was "in fact consent" in a situation where the law determines that a child does not have the capacity to make that consent.

As Rape Crisis said: “It’s any adult’s legal and moral responsibility to actively seek and be sure they have received the other person’s consent for any and all sexual activity with them."

“This includes making sure that that person has the freedom and capacity to give their consent. For example, if someone is unsure as to whether the person they’re with is too drunk to freely consent, they should not have sex with them.”

"A 12-year-old child does not legally have the capacity to give their consent and sexual activity with them is always therefore a sexual offence.”

Scott also claimed that Cieslak would have had a defence if the girl had been a few months older. But equally, if she had been a few months younger, consent would have been even less defensible.

Scott added: "there is no suggestion here of predatory conduct".

As if picking off a 12 year old a at taxi rank isn't predatory?

And what's with the patriarchal obsession with 4 male witnesses?

By the old Hudood Ordinance in Pakistan, if a woman had 4 male witnesses she could 'prove' rape, otherwise she would be charged with adultery. (Since revised, I think).

In this case, the male witnesses are used to 'prove' the girl appeared to be 16. A bunch of men with a vested interest in justifying failure to identify her age, contribute to the view that hitting on her was reasonable in the circumstances.

The consequence is a 12 year old girl who arguably looks older has no protection.

actively "looking" for underage kids didn't think she was underage
This is what is troubling in my view.

The police failed because, if they had been actively looking with intelligence, or a less negligent attitude in their looking, they might have realised this girl who had been under their noses was underage.

They should be expert in this through work in trafficking and child prostitution. All girls with big bosoms and make-up (presuming this was why she seemed older) are not sixteen, nor do they really look it on closer, informed, inspection.

Therefore not so much should have been made in the court of this police evidence and it just seems too convenient.

The police have have a history of failing young, vulnerable girls, out alone in the night.

I suppose I have missed the point being made that if the police were unsure, then how could the man be. But something feels 'off'.

Were any of the police in question women, I wonder?

I think the problem with this whole narrative that 'the coppers thought she looked 18, the door staff all thought she looked 18' is that, when questioned, none of them is going to say 'she was clearly a kid but for whatever reason we didn't act. Least of all the police, who have an explicit duty of care. We can't know for certain, but I suspect everyone's simply covering their arses.

I simply struggle to accept that a 12 year old can look obviously over the age of consent. I mean, maybe in the dark of a taxi queue, when tired and hammered, I can see how the mistake can be made. But surely the responsibility falls on the man not to make that mistake.

FWIW - at the risk of getting a kicking - I do think that some rapes-of-12-year-olds are even worse than others, and that, if various parties are to be given any credence at all, this one's towards the lesser end of the spectrum. But a complete discharge still stick in the craw for me. it just can't be right, and whatever the judge says about not it not setting a precedent, it inevitably sends a worrying message.

Ninon I agree. There was not consent. There cannot, legally, be consent in this situation. Even if she was 13, he may have had a defense, but I do not think it would have been as simple as him necessarily being found not guilty. I don't think a 19yo and a 13you should be considered experimenting teenagers of the same age- and therefore, as I understand it, the fact that she was not unwilling is less relevant.

KindDogsTail I agree the police have failed. In their defense, it seems like the missing girl they were actively looking for was with this group, and they may have been distracted by finding her. However, surely then they should be considering the ages of the other girls/people in the group, if they know one of them was 12. It's much easier for them all to say "She definitely looked 16" than admit they made a mistake. I also don't see how, given the timeline we are given, they can say they spoke to the girl in question for "some time".

Some police are good, and some are not so good, or make mistakes. I don't think we should consider them as infallible witnesses.

thedancingbear Firstly, she was never in a club, so no doorstaff. She drank vodka, with a group of friends, but there's no suggestion that she personally bought the vodka either. When the girls spoke to police, they were in Macdonalds. So it's only the police, and a taxi driver, and the judge looking at CCTV.

I do accept that he hasn't set out to groom her, or specifically pick up a 12yo (just specifically a younger girl, rather than one his own age), so in that sense, I don't think he deserved the harshest sentence. If he had been given a suspended sentence, I would be more accepting. For me, the biggest issue is that it will not go on future DBS checks, despite the fact he clearly has terrible judgement.

There was not consent. There cannot, legally, be consent in this situation.

There was factual consent (which is what the judge is saying), but for good reasons, the law doesn't recognise it until you reach a certain age. That's why the guy is guilty, but it doesn't determine his punishment.

If people think there should be a mandatory penalty for statutory rape (as with murder), that's a different issue, but that isn't currently the law.

I've been trying to dig and in Scotland I think this would show up in standard and enhanced disclosures and on pvg memberships but I can't seem to get clarity. I may phone disclosure Scotland with a query.

There was factual consent

She was 12, she had been drinking vodka, passivity is not consent.

The judge assumes consent as there was no obvious resistance.

When discussing early sexual experiences, and the relationships forum here is a good example, women often describe freezing in situations of unwanted sex that they simply do not have the experience or the confidence to know how to stop.

I don't think there needs to be a 'mandatory penalty', simply for judges to engage their brain and for better training to be provided.

Rape myths affect the judiciary as much as everyone else.

And what's with the patriarchal obsession with 4 male witnesses?

Does it say anywhere the police and the taxi driver were male?

*She was 12, she had been drinking vodka, passivity is not consent.

The judge assumes consent as there was no obvious resistance.*
You're assuming passivity. The judge has presumably been provided with evidence from both the offender and the victim and has found actual consent and said that the victim "willingly participated".

She could be wrong in her assessment of the evidence, but we don't have the evidence available to us to scrutinize.

I'm still finding it astounding some are desperate to excuse a 19 year old man who at best targeted a vulnerable girl in the early hours he thought may possibly be 16 (still a child, age of consent or not I think a 19 year old who's happy to take that chance and target a 16 year old is likely to be unpleasant) and more likely suspected she was younger but didn't care (as I've said on this thread earlier, there's no way I could have a conversation with a 12 year old and not realise they were under 16). A 19 year old man and a 12 year old girl, for goodness sake.

I'm not a criminal lawyer but as he pled guilty to what extent would evidence have been scrutinised? Presumably there was examination or cross examination in court?

The judge has presumably been provided with evidence from both the offender and the victim and has found actual consent and said that the victim "willingly participated"

But as there was court cross examination and he pled guilty to what extent was the evidence taken at more than face value?

And that is aside from the fact consent was irrelevant anyway.

Can I just say my H works for A large bus company in Scotland.
They frequently get shouts over the Radio from Control re missing and vulnerable people, esp youngsters when on back shift.

He says that when he calls in a likely spotting that the Co say when they pass the info on to PoliceScotland they can seem very slow / disinterested.

He doesn't work backshift any more. He used to find it upsetting sometimes, seeing young lasses out on the lash at 4am and he said quite a few of them were 'just kids' ie 10-14. He said they'd get on with a face full of slap and lots of bravado but you could see straightaway that they were just young lassies who should have been at home in bed.

RJnomore1 At the very end of the sentencing statement, it says "As a result, the requirement of any notification does not arise under the relevant statutory provisions." I took this to include DBS checks, but I hope I am wrong. If you find out differently, I would be interested to know.

In general, it seems like people are assuming the girl "was not distressed" because she had prior sexual experience. However, what if she wasn't distressed because she didn't fully understand what was happening to her? I also agree that freezing is a common response to sexual assault/rape in victims of all ages, as can be participating to a certain extent because you are afraid of what is happening to you. The judge seems to be implying that the victim gave an appearance of "enthusiastic consent"- which is just disgusting IMO.

Also presumably we only have his and her word on that. After all, I doubt there was CCTV of them having sex. The judge seems very sure of what happened given presumably this is based on the memory of two drunk people (one of whom had a vested interest in saying she consented, one of whom is a child) and this testimony cannot be entirely reliable, surely.

IamAmy I agree that any 19yo who is picking up drunk 16yo strangers at 4am is likely to be unpleasant to say the least. A decent 19yo man would have made sure she got home safely. But then as a society we hold male rapists to a much lower standard of behaviour than we do rape victims (particularly female ones).

I think that a 12 year old who is not distressed by having sex with an adult man is alarming in itself and shows how abnormal this child's experiences have been. It's not a mitigating factor at all, for me. It's a symptom of her disordered childhood.

Lady I took that to mean he was not required to sign on the sex offenders register. From what I know a conviction for rape of a child is an offence which is never spent and therefore will always show on an enhanced disclosure or a pvg but I'm not totally sure.

AssassinatedBeauty Or she didn't actually understand what had happened to her at the time? At some point, I guess she's made a disclosure to someone that lead to this case getting as far as court. If this was totally normal to her then it seems weird that this case which was apparently a one off would get to court. Either way, I agree it's not a mitigating factor.

RJnomore1 I hope you're right.

Re evidence as he pled guilty the Crown makes a statement of fact. The defence, as usual, may enter a plea in mitigation re sentence. The Crown can object to the plea and can order a proof (trial) on the plea in mitigation.

In other words will not have been scrutinised in the way evidence led in court would have been.

You're assuming passivity.

No I'm not, I'm pointing out that lack of active resistance and lack of obvious signs of distress in a 12 year old who had been drinking does not necessarily mean consent.

The judge has presumably been provided with evidence from both the offender and the victim and has found actual consent and said that the victim "willingly participated".

She could be wrong in her assessment of the evidence, but we don't have the evidence available to us to scrutinize.

Scott will have had the statements to the police of the Cieslak and the girl, and the police's account of their interviews. She will have had statements from the police who talked to the girl earlier and the taxi driver. But as he pleaded guilty, he wasn't subject to a trial thus he wasn't cross-examined. And the victim didn't give evidence to the court.

As to the gender of the police - the discussion earlier in the thread indicated that the police officers were male, I inferred they had read detail that I hadn't. If that's incorrect, fair enough.

LadyLance apparently she disclosed what had happened to her sister (no idea how old) because she was worried she might be pregnant. The sister then informed the police.

It's not a mitigating factor at all, for me. It's a symptom of her disordered childhood.

Absolutely.

While I know you know this is true, it still doesn't take away from the fact that the only person to blame for this crime having been committed is the young man himself.

I'm still finding it astounding some are desperate to excuse a 19 year old man who at best targeted a vulnerable girl in the early hours he thought may possibly be 16

It's extraordinary isn't it, and very depressing.

I agree with LadyLance that the implication is that men are entitled to sex and if they whoops hit on a child, it's unfortunate, but excusable. It's not possible to be 100% sure and they can't be expected to take much in the way of precautions.

Unlike women who are tasked with all the precautions in the world against getting raped. And if they fail, they may end up getting blamed.