Acquittals for All Defendants in Trial Over Sexual Offenses Against Twelve-Year-Old

On Friday, ten boys aged between 16 and 21 were acquitted at the Vienna Regional Court, who had been accused of sexual acts with a then twelve-year-old. The incidents covered by the indictment had occurred between March and June 2023 in Favoriten. Two defendants were accused of sexual coercion, and all ten of violating sexual self-determination.

For a jury panel, after a two-day trial, neither was proven. The evidence procedure had "clearly led to acquittals," noted the presiding judge Daniel Schmitzberger. The girl's statements about the sexual contacts with the defendants to the police and later during a contradictory questioning were "fraught with so many contradictions" that "it was not possible to reach a conviction." All defendants were to be acquitted "on all counts," emphasized Schmitzberger. The acquittals are not final. The prosecutor initially made no statement.

Acquittals for All Defendants Not Final

The acquittals are not final. The prosecutor initially made no statement. The two-day main trial was already the fourth trial concerning the unfortunate fate of the twelve-year-old, which had aroused considerable public interest and led to political demands for harsher penalties for sexual offenders. A 16-year-old was definitively acquitted last November of the charge of rape in a parking garage. For the court, it was "clearly" proven that it was "completely consensual" sex. A 17-year-old was also definitively acquitted of an alleged rape in a parking garage at the beginning of January. This court concluded that the boy could have assumed "that she did it voluntarily."

Only the girl's ex-boyfriend was sentenced to a suspended sentence last March because the age difference between the couple was too large, and the consensual sex was therefore punishable. The boy, who was then under the care of the Child and Youth Welfare (MA 11), had even sought legal advice with an MA 11 employee and inquired whether he, as a 16-year-old, could become intimate with a 13-year-old. The legal advice mistakenly affirmed this, as revealed in the trial against the now 18-year-old.

Acquittals for All Defendants: Judge Criticized the Media

The judge extensively criticized the media coverage in this case, which he called "very regrettable" and in parts condemned as incorrect. Things were reported or claimed that did not align with the investigation results. This had "worked to the detriment of the defendants and the victim." As an example, Schmitzberger cited the term "gang rape" initially trumpeted by tabloid media, which he labeled as "absurd." The judge also pointed out that some of the defendants were themselves only 14 and thus just criminally responsible at the time of the sexual contacts with the then twelve-year-old.

"It's not about setting an example. It's not about delivering a verdict with a deterrent effect, but about making the defendants aware of the wrongness of their actions," the prosecutor explained in her closing argument. She appealed to the jury to decide in this case "detached from the media portrayal," which ranged from "outrage over the defendants' behavior" to "incomprehension towards the then-young victim."

No Conviction Despite Incriminating Testimonies

The prosecutor was convinced of the defendants' guilt. The evidence proceedings had "not produced any exonerating circumstances" that "would be suitable to refute the suspicion of the crime." It was "apparent" to the defendants that the girl did not agree with the sexual acts: "You violated her sexual integrity. You disregarded her will. You instrumentalized her. You exploited the girl." The victim was "simply afraid" and did not dare to resist the boys.

The second day of the trial began with the questioning of witnesses. The public was again excluded for victim protection reasons and based on provisions in the Juvenile Court Act (JGG). This had already happened during the questioning of the defendants. The video with the victim's statement, who was questioned contradictorily during the investigation and thus spared from appearing as a witness in court, was also played and discussed in private.

The public was then allowed during the questioning of the victim's ex-boyfriend, who was in a relationship with the girl from September 2023 to February 2024. He was 16 at the time, and the girl was 13 at the beginning of their intimate contacts. Because she was not yet 14, thus a child and legally incapable, the now 18-year-old was sentenced last March to 15 months of suspended imprisonment, not yet legally binding. Although the sex was consensual, the young man did not pressure the girl, and there was no aspect of violence involved, the age difference between the two fulfilled the offense of severe sexual abuse of minors. There is a legal age tolerance when minors and adults, who must be at least 13, become intimate - but this is 36 months. The defendant was nine months over this tolerance limit based on birth dates.

Victim's Ex-Boyfriend: "She Made Herself Look Older"

"She made herself look older. She lied to me," the 18-year-old now testified under oath to the court. At the beginning of the relationship, he assumed that he and the girl were "about the same age." He "found out her real age" himself by seeing her birth date on an ID.

Subsequently, he learned "in the park" from a defendant that several boys had "something (meaning: sex, ed.)" with the then-twelve-year-old the previous spring, the 18-year-old reported. He told his girlfriend's mother about the whispers in the park and eventually confronted the girl with the alleged multitude of her sexual contacts after being shown corresponding videos. These embarrassed him, and he "felt bad." He was also urged by a third party to break up because "such a girl" would "damage his honor."

He had also considered this, the 18-year-old testified: "I confronted her." She then assured him "that she did not want that (meaning: the now case-relevant sexual contacts with the defendants, note) and was 'afraid': 'I was with her. I wanted to believe her.'

In this context, a text message from the affected person to her then-boyfriend was read out by the presiding judge, in which she pleaded with him not to end the relationship. "Boy, what should I do," it said, "honestly, I am so sorry about my past. Please don't break up." There is no indication from this text message that she was forced or pressured by the defendants.

Photography Ban in Court

Due to media misconduct - photographers and cameramen had ignored the photography and filming ban in the courtroom on the first day of the trial and flashed or filmed into the courtroom with the door open - people carrying a camera or video camera were not allowed to enter the regional court on Friday.

The defendants - with one exception, youths who were themselves only 14 at the time of the crime - are accused of having performed sexual acts with the girl against her declared will. The events in question took place in a hotel room, stairwells, a hobby room, and at least in three cases in the apartment of one of the defendants. Two defendants face charges of sexual coercion, while the rest are held accountable for violating sexual self-determination.

Serious Sexual Abuse of Minors Not Charged

The originally considered charge of serious sexual abuse of minors is off the table, as the prosecutor emphasized at the beginning of the trial: "The investigation did not establish with the required certainty that the defendants were aware that the victim was only twelve years old." They were therefore granted the belief that they became intimate with the affected person under the assumption that she was already 14.

(APA/Red)

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