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, all ten of violating sexual self-determination.

For a jury, after a two-day trial, neither was proven. The evidence procedure "clearly led to acquittals," noted 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 guilty verdict." Some of the girl's answers in the contradictory questioning seemed "prepared and not age-appropriate." Consequently, all defendants had to be acquitted "on all counts," emphasized Schmitzberger.

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 great public interest and led to political demands for tougher penalties for sex offenders. A 16-year-old was definitively acquitted of the charge of rape in a parking garage last November. 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 great 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, was allowed to be 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 false. Things were reported or claimed that did not match 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 only 14 and thus just criminally responsible at the time of the sexual contacts with the then twelve-year-old.

"It is not about setting an example. It is 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 guilty verdict despite incriminating statements

The prosecutor was convinced of the defendants' guilt. The evidence procedure had "not provided 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 affected person was "simply afraid" and did not dare to resist the boys.

The defense team did not accept this. "There was never, really never a coercive situation. There was no violence, no assaults," said Timo Gerersdorfer, who represented a 17-year-old. He had "rarely experienced such public pressure" in a main hearing and received hostile emails because he held a mandate in this matter. Gerersdorfer and Manfred Arbach-Stöger, another defense attorney, directed sharp words at the legal representative of the affected person, Sascha Flatz, who had conducted quite offensive media work in this case and likely fueled the reporting. "Sascha, even though we are friends, playing this in the media is not appropriate," remarked Gerersdorfer towards Flatz.

"If the public pressure had not been there, the prosecution would have dropped the case. Because it should have been dropped," noted defense attorney Mirsad Musliu, who represented an 18-year-old. The evidence was clear: "The girl participated voluntarily. The gentlemen (meaning: the defendants, note) did nothing until she said 'yes'. "

Musliu relied on the statements of the affected person's best friend, who had testified as a witness behind closed doors. The then twelve-year-old had literally reported "sex meetings" to her and had not mentioned violence or incidents against her will, Musliu emphasized. Arbach-Stöger summarized the evidence procedure even more drastically: "The whole procedure is a dud. I have never been so convinced in a case that someone is as innocent as here."

Public excluded from large parts of the trial

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 statement of the affected person, who had been questioned contradictorily during the investigation and thus spared an appearance as a witness in court, was also played and discussed behind closed doors.

The public was then allowed during the questioning of the affected person's ex-boyfriend, who was in a relationship with the girl from September 2023 to February 2024. He was 16 at the time, the girl was 13 at the beginning of the intimate contacts. Because she was not yet 14, thus a child and legally incapable, the now 18-year-old was sentenced to 15 months of suspended imprisonment last March, not yet legally binding. Although the sex was consensual, the young man had not pressured 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.

Ex-boyfriend of the affected person: "She made herself older"

"She made herself 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 "in the park" learned from a defendant that several boys had "had something (meaning: sex, note)" with the then twelve-year-old in the previous spring, the 18-year-old reported. He told his girlfriend's mother about the whispers in the park and finally confronted the girl with the alleged multitude of her sexual contacts after being shown corresponding videos. These had embarrassed him, 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 had "been 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." That she was forced or pressured by the defendants is not evident from this text message.

Photography Ban in Court

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

The defendants - with one exception, juveniles who were themselves only 14 at the time of the crime - were specifically accused of having performed sexual acts with the girl against her declared will. The case-relevant events took place in a hotel room, stairwells, a hobby room, and in at least three instances in the apartment of one of the defendants. Two defendants faced charges of sexual coercion, while the rest had to answer for violating sexual self-determination.

Serious Sexual Abuse of Minors Not Charged

The originally considered charge of serious sexual abuse of minors was not charged from the outset. "The investigation did not establish with the required certainty that the defendants were aware that the victim was only twelve years old," the prosecutor explained at the beginning of the trial. They were therefore granted the belief that they became intimate with the affected person believing she was already 14.

(APA/Red)

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