Man convicted of raping 10 year old has verdict overturned; Prosecution didn't prove lack of consent

[philosslayer]

An Iraqi refugee who was jailed after claiming it was a sexual emergency when he raped a boy in a swimming pool has had the sentence overturned.

An appeal court accepted the defence lawyer’s claim that the lower court had not done enough to ascertain whether or not the rapist had realised the schoolboy was saying no.

The attacker, identified as 20-year-old Iraqi migrant Amir A., had been treated to a trip to the Theresienbad pool in December 2015 as part of the integration process.

At the pool, Amir A. dragged the schoolboy, aged ten, into the changing rooms where he locked the door and violently sexually assaulted him, leaving him in need of urgent treatment at a local children's hospital. The boy is still plagued by massive post-traumatic stress disorder.

https://www.thelocal.at/20161021/verdict-on-swimming-pool-rape-case-overturned

[Lithos]

1. WTF?

I have a 10 year old daughter...

There is no such thing as consent...

L-

[LisaL]

2. How could 10 year old consent?

[Foggyhill]

3. WTF man the world is a sick place

[PoindexterOglethorpe]

4. WTF?

Don't most states have some sort of minimum age of consent? And is it EVER as low as 10???

Jesus H Christ.

[philosslayer]

5. This is Austria

The only explanation I can come up with is that the alleged rapist was a migrant, and not familiar with Austrian laws when it came to consent, and that the judge took that into consideration.

[PoindexterOglethorpe]

6. Thank you for pointing this out to me.

I clearly did not read the OP very carefully.

Even so, I find it hard to believe that any country considers a 10 year old, old enough to give consent. Not to mention that he needed "urgent treatment at a local children's hospital."

I'm beyond horrified. If I were a parent of that child, I'd arrange to have similar violence done upon the rapist.

[LisaL]

7. And here I was always told that not knowing the law doesn't absolve one of responsibility.

[Foggyhill]

10. It should not matter, if you a moron from any country, you should go to jail. Was this appealed?

[jberryhill]

25. Why do you suppose he is not in jail?

I assume he remains guilty on several other counts.

This court appears to have thrown out one charge.

On edit: yes he's still in jail

[elehhhhna]

12. Retrial I hope.

[jberryhill]

23. Of how many counts was he already convicted?

[jberryhill]

24. That's a foolish explanation

There are many possible explanations of what happened here.

This particular charge could be one of a dozen of which he was convicted, and remains convicted.

Pointedly, the article doesn't say.

What can you tell me about Austrian criminal trial procedure?

[Upin]

39. There is no situation where an adult man penetrating a 10 year old child is not rape...

[jberryhill]

40. He remains convicted of that

He remains convicted of the more serious charge.

This article buries that fact, in an attempt to make it appear that the guy is walking.

What the various technical definitions are of these various charges is beside the point.

Do you know that in a lot states, for example, there's no crime called "rape"?

There are various categories of sexual assault. This guy was convicted and remains convicted on the most serious charge of sexual abuse of a minor. The dispute over some lesser charge was or was not technically correct, is like arguing over the parking ticket you got while you were robbing the bank.

Even that charge is going to be retried, but the guy was convicted of exactly what he did, and isn't going anywhere.

[Doodley]

8. Has the whole world gone mad?

[GWC58]

9. Appearantly the world has gone

CRAZY!! I have a 10 year old son & I find this truly disturbing! WTF indeed!!!😳😡

[jberryhill]

31. The guy is still guilty of the sexual assault of a child

This was only one count.

The guy is going to stay locked up.

[GWC58]

34. And hopefully

for a long, long, long time! Anyone that hurts, or abuses/abused a child gets my BP up and my face looks like 😡 this!!

[LisaL]

41. All he got was six years. And that was before conviction on a rape charge was overturned.

[jberryhill]

46. It hasn't been overturned

It has been ordered retried.

How does his sentence compare to those of other people convicted of the same offense in Austria?

Is his longer than average or shorter than average?

What special treatment do you believe he is getting?

[jberryhill]

42. It's a more serious charge than the one being disputed in this proceeding

[LisaL]

43. Where does it say that?

[jberryhill]

45. Are you joking?

That's true everywhere - including Austria.

Please refer to the section on sexual assaults:

http://www.un.org/womenwatch/daw/vaw/responses/AUSTRIA.pdf

Austria-

Rape: six months to ten years

Child sexual abuse (under 14): one year to ten years, five to fifteen for severe injury, up to life for death

I also doubt "severe injury" needs to be entirely physical.

The minimum sentence is double, and the add-ons greater.

We also don't know what other things are done with offenders, given that European penal systems are geared toward also treating mental illness - in which case the guy is never getting out.

That is also a quick summary sheet, which does not define the elements of the offense or other sentencing rules.

[Nye Bevan]

11. Sick, wrong, disgusting, horrible....

I literally cannot find the words to convey my full disgust over this.

[jberryhill]

18. There are a lot more at that site

That's news website is chock full of awful things done by refugees.

Another theme that gets a lot of coverage are hate speech prosecutions of people who did nothing wrong.

Lots of news you don't see at other places.

[elehhhhna]

13. A hard on is a "sexual emergency"?

Wth defense it that?

[Pachamama]

14. First clue that there is no consent: When you have to drag & lock them in

This so FUBAR

[LisaL]

15. The child is only 10.

He can't consent. So I can't understand why the verdict was overturned. It's absolutely ludicrous.

[jberryhill]

17. Take a tour around that newspaper

[LisaL]

20. Are you suggesting it didn't actually happen?

[jberryhill]

21. Of how many different crimes was he convicted?

The article doesn't say.

One common technique in "omg court did something crazy" stories is to report on the disposition of one of multiple charges.

I am not directly familiar with Austrian criminal procedure, and neither are you.

This news source has a lot of stories grouped around two subjects - innocent Nazi's and evil immigrants. I do not trust that its reporting is unbiased.

So, tell me. What is the current fate of the perpetrator? Has he simply been released? The article does not say.

You may know of your Miranda rights. Ernesto Miranda was charged with rape. The police obtained a confession. The admissibility of his confession was challenged, because he did not make a waiver of his 5th Amendment rights. The Supreme Court agreed, and his confession could not be used.

So, tell me, do you know what happened to Ernesto Miranda?

He went to jail, of course, because there was enough evidence on the several charges to convict him.

You can be convicted, in one go, of a dozen different criminal charges for the same set of events. You might, on appeal, get one of those counts thrown out.

Here's an example. I walk into a bank, point a gun at a teller, demand his watch, and run out. I am charged with assault, armed robbery, and bank robbery. I am convicted. On appeal, I challenge the convictions on various grounds. The appeal court throws out the bank robbery conviction because it is not clear that I intended to rob the bank, instead of just stealing a watch.

What happens then? I go to jail, of course.

I have seen this sort of reporting on US crime stories as well. The trick is only to tell as much of it as needed.

"Did you hear about the guy who stuck up a bank? There were ten witnesses and video, and he comes in with a gun and points it at the teller. The stupid court overturned his conviction for bank robbery on some dumb technicality."

Now, go look at that site. Do you think that site would be motivated to tell less than the whole truth, even if every detail in that report were true?

I'll make it simple for you with a single question:

Where is that man right now? Was he set free?

[LisaL]

27. Actually the article does say what he was convicted of and what is his

current fate is. Still doesn't explain why court would think the prosecution didn't prove rape considering victim was only 10.

[jberryhill]

30. That's easy

He was convicted of sexual abuse of a child. He remains convicted of that charge.

If consent is an element of the other charge, then it may be an inappropriate charge.

Which one do you think carried the most signifant penalty?

[treestar]

36. according to US law

No one on this thread knows a thing about the law in Austria, and of course, the article does not explain.

It seems a finer point of Austrian law, in that he's still guilty on other charges.

[jberryhill]

16. Interesting newspaper that one

Seems to be the go-to source for victims accused of hate speech, and sensational stories about refugees.

[JI7]

19. they are trying to get people here to defend the rapist because they are muslim

do people still think the poster actually cares about muslims ?

it's clear what they are trying to do with these type of posts.

[jberryhill]

22. The story doesn't say how many counts were NOT thrown out

The story does not say the guy was set free.

I doubt he was cleared of all of the crimes of which he was convicted.

That type of reporting is common.

[LisaL]

26. Well actually it does.

[jberryhill]

28. You know what, you're right

He remains convicted and in jail, and will be retried on the lesser count. What's the problem?

Notice the absence of that from what the OP excerpted.

[LisaL]

32. The problem is, prosecutors having to prove victim didn't consent when victim was 10.

Thus couldn't consent based on his age alone. That is the problem.

[jberryhill]

33. It doesn't matter

That's the purpose of the crime of which he was and remains convicted.

What's his sentence on the other charge?

The way that crimes are defined, and the procedures for prosecuting them, vary wildly among countries.

We're not looking at whatever the statutory definitions may be.

But I will bet you that the charge on which he remains convicted is the much more serious one.

Even then, the story throws in his ridiculous statements, which appear to have no bearing on the actual outcome and disposition of the case

But the headline and excerpt posted here sure are catchy, eh?

[yardwork]

35. This is a right wing site that is not reliable. Please self delete.

[Calculating]

38. Why

Because it's critical of refugees?

[jberryhill]

44. What does his being a refugee have to do with it?

Guy molested a kid.

Guy was convicted of 1. child molestation and 2. rape.

The rape conviction, but not the child molestation conviction, is ordered retried on what appears to be a technical error by the prosecution.

The guy is in jail and he's staying there for a long time, regardless of what happens to the disputed charge.

Those are the operative facts of the story. What does his being a refugee have to do with it?