I remember reading about this case earlier this year. Brought to a public pool in Vienna as part of the integration process for asylum seekers, an Iraqi refugee named “Amir” allegedly followed a 10-year-boy into the bathroom and attacked him in a stall. Then he went back out to the pool to enjoy a swim. When the cops arrived, he told them that he hadn’t had sex in four months because his wife was still in Iraq. When he saw the boy, he’d had — and I quote — a “sexual emergency.” The victim had to be taken to the hospital to be treated for his injuries.
Usually this is the part where the stranger in a strange land insists that such things are perfectly normal where he comes from and therefore the locals should indulge him. Not this time. Even the rapist himself didn’t plead cultural relativism:
When asked whether it was illegal to have sex with young boys in Iraq, he said “such a thing is forbidden in any country in the world,” adding that he realised it had been “a huge mistake”.
He told the trial court back in April that he was still hoping to bring his wife and child to Austria from Iraq, even though he’d be locked away for 10-15 years by the time they arrived. Incidentally, the victim’s mother had been a refugee from Serbia herself years before. According to the Local’s report at the time, “She [now] regrets teaching her five children to offer the same hospitality to new arrivals that she had herself received.”
Fast-forward to a few days ago, when an Austrian appellate court finally ruled on Amir’s appeal. The sexual assault conviction will stand — but the rape conviction has been overturned because, er…
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…
Supreme Court President Thomas Philipp said that while the verdict was “watertight” with regard to the serious sexual abuse of a juvenile, the written verdict on the second indictment, rape, cannot be sufficiently proved.
According to the Supreme Court, the first court should have ascertained whether the offender had thought that the victim agreed to the sexual act and whether Amir A. had the intention to act against the will of the boy.
I’m mystified. So are some Twitter pals, to the point where they’re questioning whether this entire incident really happened or, if it did, whether the English language accounts are distorting the ruling. (There is an Austria appellate judge named Thomas Philipp, for what it’s worth.) Unless this page is outdated, the age of consent in Austria is 14; there should be no legal reason for a court to explore the dubious question of whether a 10-year-old who needed to be hospitalized after being attacked was actually looking for a quickie in a bathroom stall with a random guy at the pool. It doesn’t sound like the court is holding the Iraqi to a culturally relative standard of behavior, i.e. that we should cut him some slack because “this is what Iraqis do.” Rather, it seems like this is a problem of Austrian legal culture, where they’re looking to see if the boy had somehow given the rapist “the wrong idea” about what he wanted even though, legally, it’s impossible for him to do that.
What am I missing here? Any legal eagles out there with European experience have any idea what’s going on? This ruling is, I assume, ultimately just a procedural matter and that the trial court will re-convict this degenerate on the rape charge: The boy’s injuries are evidence of how violent the attack was and the fact that he’s reportedly horribly traumatized by what happened speaks volumes about whether he had agreed or not. But still — it’s baffling to an American to see consent pop up in a case like this. Are they in fact suggesting that the Iraqi, being unfamiliar with Austrian customs, might have innocently misunderstood something the boy said or did as an invitation to sex and then acted on it without realizing it was illegal — even though the Iraqi himself supposedly admitted he knew what he did was wrong? Since when is ignorance of the law an excuse, especially with a crime this serious?