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An Iraqi refugee in Austria had his conviction for raping a 10-year-old overturned because he didn’t realise the victim was saying no. The conviction was set aside by an appeal court, citing concerns about whether force had been used, which is a requirement for a rape conviction in Austria. But a conviction for serious sexual assault of a minor stands, and there will be a re-trial on the rape charge. [Vladimir Putin criticised] a case in Austria last week, which saw an Iraqi migrant have his conviction of raping a 10-year-old boy at a swimming pool in Vienna overturned. He was originally convicted of the crime but it was overturned because a court didn't prove he realised the boy was saying no. Daily Mail, 3 November 2016 It's technically correct that a conviction was overturned, but this account omits vital information. Austrian state and English-language media reported in late October that an Iraqi refugee had his conviction for rape of a 10-year-old boy set aside by an appeal court. The Supreme Court of Austria reportedly said that there were problems with the rape conviction and overturned the six-year jail sentence originally given. The court’s written judgment, if there is one, doesn’t seem to have been published. The Austrian embassy told us that it will be very soon. But there are a couple of reasons that it’s not accurate to say, as Mr Putin reportedly did, that the court released the defendant as a result of the Supreme Court’s decision. For one thing, his conviction for a separate offence—serious sexual abuse of a minor—was deemed watertight, according to Austrian broadcaster OFT. The country’s Ministry of Justice confirmed this to us. It isn’t mentioned by the Mail. Under the Austrian Penal Code, the more serious crime of rape involves force. Bernhard Heinzl, an associate at Vienna law firm Dorda Brugger Jordis, told us that the issue in the case was whether or not force was applied. The lower court hadn’t clearly established that there was an element of force in the case—so while the sexual abuse conviction stood, the rape charge didn’t. That may explain why the decision was reported to be about whether or not the victim said no. In Austria, as in some other European countries, the crime of rape is about force rather than lack of consent. Mr Putin portrayed the court’s concerns being that the defendant didn’t speak German and didn’t know that the victim objected to the rape. That seems like a misunderstanding, as those aren’t reasons in themselves to set aside a rape conviction. There will now be a retrial on the rape charge, and the defendant reportedly remains in jail in the meantime. This is similar to what might happen in the UK if a conviction is set aside for legal reasons. Even if the facts don’t change—and in this case, the defendant confessed—the legal process sometimes needs to be re-run if it was handled incorrectly the first time. Mr Heinzl points out that, in the circumstances of this case, the sentence that can be given for rape is similar to what might be expected for serious sexual abuse of a minor. The EU’s 'East StratCom Task Force' has said that Russian media reporting of the case as an acquittal, and Mr Putin’s reference to it, is an example of pro-Kremlin disinformation.
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