Interesting one for the legals here

Gob · Post by **Gob** » Sat Mar 18, 2017 12:08 am

A man who admitted raping a 12-year-old girl has walked free from court.

Daniel Cieslak, 21, had believed the girl - who he met in a taxi queue in Edinburgh in July 2015 - was 16.

He burst into tears when police later revealed her true age.

The judge, Lady Scott, said she was taking the "wholly exceptional decision" not to sentence Cieslak.

Instead, she gave the first offender an absolute discharge at the High Court in Glasgow.

She said: "I do not consider there is any need for, or public interest in, punishment. To do so would in my view be disproportionate given the nature of the criminal culpability here."

Student Cieslak, who was 19 at the time of the offence, had earlier pleaded guilty to the rape charge.

The court heard that the girl had travelled to Edinburgh on a Friday in July with her 13-year-old friend, where they met more friends and bought vodka.

In the early hours of the following morning, police searching for another girl who was missing spoke to the 12-year-old in Princes Street.

Prosecutor Kath Harper said officers had not noted her details "as they were not concerned by her age".

At about 04:00, the girl and her friend met Cieslak and one of his friends in a taxi queue.

The victim said she was 16 and her friend was 17. The taxi driver later said he thought the girl was 20.

Cieslak then invited them to a party at his friend's house, where he had sex with the 12-year-old.

The court heard she left the next morning, and there had been no suggestion of her being distressed.

The offence came to light days later after the girl told her sister she was "extremely worried" she could be pregnant.

An absolute discharge is given instead of sentencing an offender. It is not a conviction - although it may put before the court if the offender appears again for another offence.

It is used "when the court is of the opinion, having regard to the circumstances, including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment".

BoSoxGal · Post by **BoSoxGal** » Sat Mar 18, 2017 4:10 am

In the US statutory rape is a strict liability offense in most states - meaning reasonable belief that the 'consenting' sex partner is at or above age of consent is not a defense. Some states, however, do allow defendants to present evidence of mistake of age in defense to statutory rape charges.

Montana was not one of those and I have to be honest, those cases troubled me greatly. When I had total prosecutorial discretion, I was not inclined to charge 'Romeo/Juliet' stat rape cases wherein the lovers were very close in age and in the few instances I did, I pissed off some parents by refusing to go hard on plea offers and/or sentencing recommendations. When two teenagers fall in love or lust, one of them should not have his (or her) life ruined over a technicality if both went into the situation on relatively equal footing and with equal enthusiasm.

One of the biggest factors that informed my approach to those cases was my own experience as a teenage girl. I was a 14 (almost 15) year old girl when I lost my virginity to an 18 year old boy I had a huge crush on, and while in retrospect I wish I'd waited longer, I blame my own baggage and the lack of love at home for that and not my 18 year old lover who became an adoring commited first boyfriend and whose heart I later broke.

I later had a boyfriend when I was 16 who was several years older than me and to whom I lied about my age for quite a while when we first got together.

Beyond that, I knew many other sexually precocious teenage girls when I was one, and have encountered many of them in my adult life through work as well as through my relationships with teenage nieces and my one time teenage 'stepdaughter' and her friends. Absent mitigating factors (which must be considered on a case by case basis) I think it makes sense to be pragmatic about the reality that many hormone driven teenagers fuck like bunnies.

I realize this is not a politically correct position to some folks and might generate outrage, but that is as it is. Obviously my attitude is very different if the age gap is wider and depending on circumstances - I once enthusiastically prosecuted a 23 year old carnival worker who seduced a 15 year old girl, for instance. And I have no sympathy for an adult male who beds a teenage girl as there is no excuse at that level of maturity for not verifying age - even though I realize that a lot of 16 year old girls out there DO look mid-20s when all done up in makeup and dress-up clothes.

12 is pretty young, but when girls develop early and wear a lot of makeup and dress like they're older, it isn't a stretch to see how a 19 year old boy could believe one when she claimed to be 16. I have some faith that this judge measured the character of this young man and made the right call.

ex-khobar Andy · Post by **ex-khobar Andy** » Sat Mar 18, 2017 4:25 am

I'm with BSG in this; especially as the police who interviewed her while looking for another missing girl in the early morning hours were not 'concerned by her age.' The taxi driver thought she was 20. Absent a birth certificate, it seems that the 'rapist' reasonably though that she was of age. I think 'mens rea' has to be part of guilt: although as BSG says here in many states under-age sex (especially 19 year old male with 12 year old female) would be an absolute offense, it seems to me that the judge made what she was supposed to make - a judgment based on the facts.

Guinevere · Post by **Guinevere** » Sat Mar 18, 2017 1:26 pm

Strict liability crimes exist because we have made policy decisions that those crimes should not be excused, regardless of "mens rea." Intent is irrelevant, and in these cases judges do no have discretion. The penalties exist to deter future crimes, and enhance awareness.

12-year-old children, whether male or female, are just not emotionally mature enough for sex, regardless of what their bodies look like, and because of that, I would not have excused him.

BoSoxGal · Post by **BoSoxGal** » Sat Mar 18, 2017 1:43 pm

You should know that I'm no anomaly; prosecutors both female and male all over this country decline prosecution of statutory rape cases on a very regular basis.

Lord Jim · Post by **Lord Jim** » Sat Mar 18, 2017 3:25 pm

When I was 16, I started dating a girl who was two years younger. We dated of and on for the next two years (we didn't start having sex till we had dated of nearly a year)

It would have been ludicrous, absolutely ludicrous for me (or anyone else in a similar situation) to have been charged with a crime, and labeled a "pedophile" or "sex offender" when we were having sex when I was 18 and she was 16...

(Of course this was back in the late 70s, when it would never have occurred to anyone to do such a ridiculous thing)

I don't know enough about the particular case in the OP to make a judgement about it (and I admit 12 is pretty young...though bear in mind that the age of consent in Scotland is 16, not 18 as it is in the US) but as a general principle I agree with BSG on this one...

There really should be some discretion and commonsense applied in "statutory rape" cases...

ex-khobar Andy · Post by **ex-khobar Andy** » Sat Mar 18, 2017 3:30 pm

Having been a horny teenager myself long, long ago I submit that what this guy did is not worth a life sentence of being labeled a sex offender. Assuming that the facts are as written (she appeared to be of age to him and to the taxi driver, and her apparent age did not concern the cops, and she was posing as 16 and she was a willing participant) then I think he gets a pass with maybe a warning to be much more careful in future. I absolutely agree that 12 is not emotionally mature enough for sex as a general rule although I would submit that plenty of 20 year olds are similarly immature. But in this case (and again assuming the facts as written - for example he did not purposefully ply her with vodka) then I think the judge found the lesser of two evils.

Crackpot · Post by **Crackpot** » Sat Mar 18, 2017 3:48 pm

Age of convent varies by state Jim

Guinevere · Post by **Guinevere** » Sat Mar 18, 2017 3:51 pm

"Willing participant" does not mean legally able to give consent. A 12-year-old has no idea what she is consenting to, as both a matter of law, and likely as a matter of fact.

An 18-year-old and a 16-year-old having sex are entirely different than a 19-year-old and a 12-year-old doing the same. A concept with which the prosecutors must have agreed, because they brought the case. Same with the defendant, who pleaded guilty.

Crackpot · Post by **Crackpot** » Sat Mar 18, 2017 3:55 pm

There's also the possibility of being an unknowing participant in someone else's bad decision.

Lord Jim · Post by **Lord Jim** » Sat Mar 18, 2017 3:57 pm

Crackpot wrote:Age of convent varies by state Jim

I don't think it does CP:

Welcome to our “Ask The Nun” series of informal videos. Today’s question focuses on the age requirement for becoming a nun. Sister Norma Raupple shares her answer.

A woman needs to be least 18 years old before applying to join the discernment process. It’s good to have some life experience as a young adult… either going to college or working at a job for a while. During these years there are many ways to be in contact with Sisters. There are opportunities to get to know a group of Sisters and for the Sisters to get to know you… before you actually become a member of the community.

http://www.theursulines.org/2010/04/28/ ... ome-a-nun/

Crackpot · Post by **Crackpot** » Sat Mar 18, 2017 4:17 pm

I fucking hate autocorrect.

BoSoxGal · Post by **BoSoxGal** » Sat Mar 18, 2017 4:34 pm

Unless developmentally disabled, there are few 12 year olds in our culture and public schools systems who don't know what sexual intercourse is. The U.K., as I understand, is far more progressive than the USA in providing such basic sex education to young people in schools. And most parents do not control their children's access to smut on television and the internet.

Why is the responsibility for this 12 year old's being out posing as 16 and having sex with a boy 19 not placed at her parents' feet, instead of at the feet of a teenaged boy who clearly had every reason to believe her declaration of age as adult policemen didn't question it?

As to the idea that 12 year olds are helpless and clueless; I'm sure I'll be assailed for this, but I find our tendency to infantilize our children very disturbing. The helicopter parents of today who remove all responsibility and expectation of good behavior from their kids are doing nobody any favors.

And yet I'm certain that most of these same people, outraged at the notion that a girl in puberty might have some idea how her body works, also have houses full of products that were produced in foreign countries where children as young as six years old toil 12 hours days to loom rugs for self-righteous Americans.

ex-khobar Andy · Post by **ex-khobar Andy** » Sat Mar 18, 2017 4:56 pm

Per Guin:

"Willing participant" does not mean legally able to give consent. A 12-year-old has no idea what she is consenting to, as both a matter of law, and likely as a matter of fact.

An 18-year-old and a 16-year-old having sex are entirely different than a 19-year-old and a 12-year-old doing the same. A concept with which the prosecutors must have agreed, because they brought the case. Same with the defendant, who pleaded guilty.

I don't disagree with a word of what you wrote, but I do not disagree with the outcome which is that he was given an absolute discharge which, in Scottish law as defined in the OP is essentially yes you did it, but we are not going to punish you unless you do it again in which case we will come down you like a shitload of bricks. If she were my daughter of course I would want him locked up for the rest of his unnatural life which is roughly the same punishment I want for the asshole who cuts in front of me on the Interstate. If he were my son I would want to sue the 12 year old and her family for inducing him to commit a crime (and yes I am well aware that entrapment is only a defense if so coerced by a government agent). This is why we have trials and not citizen justice. So I think the judge got it right. IIUC what BSG and Guin said, that is not an option in US law, so that element of judgment is down to the prosecutor's decision to pursue the case or not.

Joe Guy · Post by **Joe Guy** » Sat Mar 18, 2017 4:58 pm

Lord Jim wrote:When I was 16, I started dating a girl who was two years younger.

Relatively speaking, wasn't she a little old for you?

Lord Jim wrote:There really should be some discretion and commonsense applied in "statutory rape" cases...

I'll bet that if cops arrested every 'stat rape' case they came across, the laws would need to change in order to clear the courts for other cases.

ex-khobar Andy · Post by **ex-khobar Andy** » Sat Mar 18, 2017 6:40 pm

I hope it wasn't relatively speaking because that would be a crime.

RayThom · Post by **RayThom** » Sat Mar 18, 2017 7:31 pm

No legal mumbo-jumbo needed.

I say to hell with all that "raging hormone" nonsense... just say NO! Strict celibacy and/or virginity until a couple is duly married is the only way to go. (Just ask any pope prior to Francis.)

If it was good enough for our parents and grandparents then it should be good enough for us.

You know it and I know it. I have spoken.

Gob · Post by **Gob** » Sat Mar 18, 2017 10:23 pm

How far should this guy have gone in checking that the horny bird he pulled was legal?

Many of these kids carry fake ID to purchase alcohol.

Bicycle Bill · Post by **Bicycle Bill** » Sun Mar 19, 2017 5:35 am

Crackpot wrote:Age of convent varies by state Jim

Get thee to a nunnery?

-"BB"-

RayThom · Post by **RayThom** » Sun Mar 19, 2017 5:44 am

First link in Google search:
"Get thee to a nunnery" is a play on words. Although a nunnery is a place for pure women who give themselves body and soles to God, a nunnery also means a whore house. Nunnery has a double meaning. Essentially, Hamlet is telling Ophelia that she is both pure and impure.

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