Several points about the absolute discharge given in Scotland last week by Lady Scott to Daniel Cieslak, who was convicted of raping a 12 year old girl, will greatly concern child protection campaigners for their potentially far-reaching implications.
First, the sentence and the judge’s remarks could be seen as in effect lowering the age of consent. The reason Mr Cieslak was convicted of rape, rather than of an under-age sexual offence, was that consent (which must be informed consent) is legally impossible under any circumstances for children under 13.
However, despite this legal impossibility the judge, who accepted that the accused genuinely believed the girl was over 16, was reported to say “Here the victim willingly participated in the sexual intercourse and there was, in fact, consent.” So there could not be consent: and yet there was. That contradiction surely needs urgent clarification. Otherwise both the absolute discharge and the judge’s remarks risk giving a “green light” to anyone wishing to have sex with a child under 13, by saying that they looked over 16. The current law is also undermined.
Secondly, while mitigating factors may well exist in an accused’s individual case – which can be reflected in length of sentence – sentencing is always also a statement of how seriously a society takes particular acts. It also deters others. So for instance the increased sentences for domestic abuse, for drink driving or dangerous driving, and other offences now taken more seriously by modern society. The absolute discharge and the remarks made a very different form of public statement.
Thirdly, there are strongly suggestive indications that the victim may have already been a vulnerable child in need of extra protection. Two girls of 12 and 13 were wandering alone in Edinburgh city centre in the small hours of the morning. One of them, it was reported in some media, quickly showed sexualised behaviour with a stranger, Mr Cieslak, whom she had met in a taxi queue, then later had sex with him. These behaviours are very common reactions in some children and young people who have already been sexually abused or exploited, and would be recognised as such by anyone working with survivors of these crimes.
Was an investigation made before the trial into their circumstances, and were the girls already known to anyone who should have been protecting them? There had been more than time enough to find out between the incident in 2015 and the court case. If so, was this information passed to the court?
The reason those questions are especially important is twofold. It has now emerged that countless vulnerable girls of similar ages and behaviours to this girl were carefully groomed into agreeing to sex, then raped and brutalised by gangs in the child sexual exploitation scandals of Rotherham, Rochdale, Oxford, Derby and elsewhere. The reason most were left unprotected for years by police and social services was because they were dismissed as willing partners, as “little slags”, or as “child prostitutes” by the authorities themselves. Many had been vulnerable children, already previously abused or neglected.
This knowledge, which we all possess now, makes it especially important for authorities and courts to protect children showing early sexualisation or “difficult” behaviours, not simply to accept as Lady Scott did of the girl in the case that she had “no concerns, and there was no suggestion of her being distressed”. If we allow them to be dismissed as “willing” or “active” participants”, we surely contradict both Scotland’s child protection policies and its National Plan to counter child sexual exploitation.
Even where a young person is between 13 and 16 – and may indeed have limited consent, Scotland’s “National Guidance on Under-age Sexual Activity: Meeting the Needs of Children and Young People and Identifying Child Protection Concerns” recommends factors which must be considered in judging risk and the need for protection. They include informed choice, the circumstances of the sexual activity, a history of being in care, and a history of previous abuse.
In the (English) Neil Wilson case in 2013, appeal judges and Director of Public Prosecutions (DPP) strongly criticised a judge who leniently treated the abuser of a vulnerable 13 year old, and said the girl was a predator and “egging you on”. Appeal judges made the highly important statement: “An under-age person who encourages sexual relations with her needs more protection, not less. The Attorney General is therefore right to say that the victim’s vulnerability was an aggravating, rather than a mitigating feature”.
Is it time for such unequivocal statements – and for a Crown appeal against this sentence – north of the Border?
Full details of English child sexual exploitation scandals in: Nelson, S (2016). Tackling Child Sexual Abuse: Radical approaches to prevention, protection and support, Policy Press, Chapter 4.
Scottish Government (2010) National Guidance. Under-age sexual activity: Meeting the Needs of Children and Young People and Identifying Child Protection Concerns” [para 47].
Barrister suspended from sex cases after court comments BBC News (online), 07/08/13; Attorney General’s Reference (No 53 of 2013)  EWCA Crim 2544 (para.20).