Too young to rape

By 13 July 2007 93

[ED (Ntp) - Who says we don't listen to our readership. Below is LG's post with my reactionary gripe to the ruling and CT link following the more tag. Thanks also to stan_bowles for the link to the court ruling.]
The ABC has a story the ACT Supreme Court finding an 11 year old boy not guilty of sexually assaulting a young girl at knife point.

The article states that “the boy and another 11 yr old had taken the girl to a park and forced her to get undressed. The 11-year-old then tried to have sex with the girl until other people entered the park and he then ran away”

Justice Higgins “concluded the boy was too young to realise his actions were criminal, and while he had acted out sexual behaviour, he was clearly incapable of engaging in sexual intercourse”.

Now I know the argument of how old do you have to be to be responsible for your actions is an old one and I’m not sure of what penalty (if any) the boy has or will received. But it can hardly be comforting to the young girl in question knowing that despite being forced to do things at knife point, the offender was “clearly incapable of engaging in sexual intercourse”.

A strange, sad story. Can we at least penalise the parents who have obviously done a terrible job in raising their child?

First posted by NTP as: WTF? Higgins has his head up his @r$e!

OK, I might be going off a bit half cocked but our esteemed Chief Justice Terry Higgins has just let of an attempted rapist. The facts not in issue are that the offender accosted the victim, held a knife to her throat and forced her to undress while his friend acted as a lookout. She only got away when other people arrived in the park where the assault was taking place.

The issue is with the offender’s age. He and has mate were both 11.

Justice Higgins said the onus was on the Crown to not only prove the facts, but also, “Had he a guilty knowledge that he was doing wrong?”

He found the boy’s actions had not met the criteria of section 26 of the ACT’s Criminal Code, which says: “A child aged 10 years or older, but under 14 years old, can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.”

I’m sorry, why hold a knife to someone if you think what you’re about to do is OK? Why have a lookout unless you are concerned about being caught?

The full Canberra Times article relating to the case can be found here.

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93 Responses to
Too young to rape
Absent Diane 1:14 pm
13 Jul 07

I agree with sentiments about penalising the parents..

Don’t know what you can do with an 11 year old kid to punish them and have them pumped out a well balanced kid at the end of the process. Even counselling would probably be better than nothing though

jemmy 1:18 pm
13 Jul 07

Very sad case. He was expressing sexual behaviour at age seven. How? Where did he see it to copy? I agree with LG about the parents and would go further to charge them with abuse.

This kid won’t even get the psychiatric help he obviously needs. There is a loophole problem if the court can’t force treatment because he is technically not guilty.

LG 1:20 pm
13 Jul 07

Unfortunately (according to the CT article) because the boy was found not guilty, he isn’t required to undergo any form of counselling or rehabilitation.

I just hope at the very least, the boy’s laywer is correct in saying the court process has knocked some sense into him.

Ntp 1:21 pm
13 Jul 07

At the absolute LEAST a conviction should have been recorded even if no penalty applied. Court directed councelling and monitoring would seem sensible as well.

Thumper 1:22 pm
13 Jul 07

A sad story with no winners, only losers, and one that should have everyone slightly worried about where society could be headed.

Surely some positive intervention is called for for this kid.

asp 1:54 pm
13 Jul 07

“concluded the boy was too young to realise his actions were criminal, and while he had acted out sexual behaviour, he was clearly incapable of engaging in sexual intercourse”

I thought the age at which a child could be charged with a crime was ten. Unless this kid and his mate have a mental illness that means there mental age is less than their physical age, I don’t see how Higgins can say he was too young to know his actions were criminal.

And as for being too young to have sex. Well, one would hope. But a look at Wikipedia, at an article which cites reputable sources reveales that in a physical sence, a ten year old would be capable of it. And in the age of the internet, there would be every chance he has looked up how.

To be found not guilty is just wrong. I am not for a second advercating a prison term for someone so young, but certainly this kid needs counseling and appropriate punishment. What we don’t need is young kids getting away with this sh*t and then doing it again when they’re 20.

Woody Mann-Caruso 2:05 pm
13 Jul 07

It’s OK. They’ll probably catch him in his late 20s after he’s raped and murdered a whole string of women. Justice will be served!

KandyA 2:19 pm
13 Jul 07

shoot him.
shoot his parents and guardians.
shoot the judge,
DPP – shoot them.
The boy’s lawyer? yes thats right..shooting.
hell, shoot the young girl too.
Everyone should be shot.
I think you all agree with some part of this,
so shoot me.

stan_bowles 2:28 pm
13 Jul 07

Ntp 2:41 pm
13 Jul 07

You know Stan after reading the ruling I sort of agree with it. Still think a guilty verdict with no punishment but counselling/monitoring would have been more appropriate.

lod 3:21 pm
13 Jul 07

The ruling is an interesting read. The judge goes into great detail of what it means to know that his actions were wrong.

An interesting point I picked up was that he had to consider what level of wrongness the child believed it was. Essentially that the child knew that it was very wrong rather than just impolite wrong or teacher said so wrong.

The judge also felt that the boy was suffering from a relevant mental dysfunction, he is already undergoing treatment.

It’s essentially stated that the sexualised behaviour was picked up from his father bringing prostitutes home. Over the same time period the boy was suffering from emotional and psychological abuse at home.

The boy did actually try to penetrate the girl but wasn’t able to do so. So he clearly knew how the act worked but wasn’t physically capable.

His history makes for a sad read. I suspect he’ll see the inside of a prison well before he reaches adulthood.

philbert83au 3:24 pm
13 Jul 07

Thanks for the article and link NTP, but can we have less hysteria and more news in the main article? Say what you like and judge-bash to your heart’s desire in commentary but keep it newsish out front. See the ABC link for how to do this.

Ntp 3:39 pm
13 Jul 07

How’s that philbert83au?

Whose bloody site is this anyway ;)

neanderthalsis 3:51 pm
13 Jul 07

Ranting hysteria and public indignation are the core values of the RiotAct, Philbert. I would hazzard to guess that that is what keeps us punters coming back.

So, does the verdict mean that in two years time when he does it again, he can say that he had done it before and not got into trouble, so naturally assumed it is ok?

Ntp 4:00 pm
13 Jul 07

Neanderthalsis i just nominated you for a pool room quote with that.

Woody Mann-Caruso 7:21 pm
13 Jul 07

I come for the hysteria, and stay for the rants.

Pandy 7:28 pm
13 Jul 07

Where is Howard and the army in this case?

JJJmonkey 7:50 pm
13 Jul 07

“I thought the age at which a child could be charged with a crime was ten. Unless this kid and his mate have a mental illness that means there mental age is less than their physical age, I don’t see how Higgins can say he was too young to know his actions were criminal.”

The age a child can be charged is 10… however between the ages of 10 and 14, the child has to be aware that what he was doing was wrong. So it is not an assumption just because he is over the age of 10, he can be charged.

sepi 7:57 pm
13 Jul 07

I think some punishment should have been applied – a weekend in solitary in Quamby might scare him into thinking this type of behaviour is not a good idea.

asp 8:03 pm
13 Jul 07

JJJ, True, although in this case, to me it is clear he knew or at least suspected that what he was doing was wrong.

In this case, the actus reus (guilty act) and mens rea (guilty mind) of the offender are clear. Like others have said, if he did not beleive what he was doing was wrong, why have a look out? The judge’s excuse that he was too young is very flimsy. I think if judges still beleive that young kids are capable of serious crimes, they need a reality check.

asp 8:04 pm
13 Jul 07

that should read: kids are NOT capable of serious crimes

ant 8:42 pm
13 Jul 07

The kid clearly formed the intention of raping the girl. He planned it out. He had a knife, and used it. He posted a lookout. This is one very scary kid. I’m sure we’ll see more of him. Our taxes at work, now and in the future.

bd84 9:17 pm
13 Jul 07

Hhaving read the transcripts there looks like there was was more than enough evidence to find the child guilty of one offence if not more and also the evidence to the fact that he knew what he was doing was wrong. But whether or not a child can be coached to say he didn’t know it was wrong is another story..

The most scary part is that this that child appears to be still in the custody of his mother and that the mother originally prevented the child from being interviewed.. While the transcripts do say that this child has been undergoing counselling for his problems, there’s not much preventing the child to drop out next week especially still living with this mother who seems to have had an influence on his life along with the abusive father. I would suggest the judgement with no enforced psychiatric help is a dangerous precedent to be setting, especially with the evidence against him. Likely to see this child again we are, while hoping this counselling will be successful, I will feel sorry for his next victim(s). The law is a crock.

jellen 10:32 pm
13 Jul 07

Dear ‘law is a crock’ people,
What exactly do you propose as the optimum outcome in this awful case? Maybe we should lower the age for punishment to say, maybe 4 years old YEAH! Let’s copy America where they try kids “as adults”, and aren’t scared of executing kiddies who deserve it. BRING IT!
Let’s follow the lead of those fine countries that don’t wimp out from dishing out some just desserts to their kiddie criminals…
Surely that would be a fine list of countries – the kind of right thinkin’ places just right to bring up a family – the kind of place where kiddies know thier place and everything just works – let’s follow the yellow brick road to…:
the Democratic Republic of Congo,
Saudi Arabia,
Yemen and, drum roll, please,
the United States of America (USA)! WOO HOO!
That’s what I’m talking about – damn fine places each and every one.
OK- sold to the law is a crock people – we need to start up a petition and need to git ourselves on that list pronto!

ant 10:58 pm
13 Jul 07

Jellen, you are not looking at the facts. What aobut the girl? Is she just throwaway trash, collateral damage in the very important life of this “child”? He didn’t steal something, he didn’t jaywalk.
He planned to rape a girl, he held a knife against her throat, and he posted a lookout.

this is no “child”.

asp 11:11 pm
13 Jul 07

jellen, lay off the turps and look at the facts.

No one is suggesting that this kid should be tried as an adult, nor do I beleive anyone here is suggesting that he receive an adult prison sentence. I don’t see what is wrong with making sure this boy spends a couple of nights behind bars in a youth detention facility and receives counceling. Reasonable measure, all with a view to reforming him and hopefully stopping him from doing anything like this again.

As ant pointed out, this kid planned this. He had a lookout on duty and had a weapon. Had he being physically able and some people had not come along, he would have succeeded in raping the girl. Are you (jellen) saying that just because he is a kid, we should let him rape, or at least attempt to rape, whoever he wants?

I-filed 11:34 pm
13 Jul 07

Letting the little creep off scot free is sending a very bad message. One, he will re-offend with impunity, and two, the victim will feel totally messed up by “Justice” Higgins. Hopefully she will receive a VOC payment on two fronts: the initial crime, and then Higgins’ “judgement”.

bd84 11:50 pm
13 Jul 07

Jellen, obviously you’re one of those rent a crowd people who go and protest at every even for the point of it to bring up everything that was totally irrelevant. Either that or lay off whatever you’re drinking/smoking.

Most people’s point was that the law allows kids 10-17 yrs to get away with blue murder, only to allow them to do the same thing over and over. Justice is what is needed, even if it was legally enforced psychiatric help or some other proper intervention in this case.

JJJmonkey 2:31 am
14 Jul 07

asp… I haven’t read the ruling, so I’m not going to comment on the validity of the decision, I was merely stating the law…

the actus reus (guilty act) and mens rea (guilty mind) of the offender

I can tell you though, in the re-writing of the Crimes Act into the Criminal Code, this definition no longer exists.

VicePope 1:56 pm
14 Jul 07

This is one of those really difficult cases. Assume the act was done, and no-one would disagree that it was a terrible thing. None of us can really know what the victim went through or is still going through. She is entitled to the greatest support society can offer.

But, the question is whether the alleged perpetrator was capable of forming the appropriate criminal intention. That’s a matter of fact, folks, and any teacher will tell you there is an enormous range of understanding (and culpability) among kids of the same age. His Honour reached a view that, in effect, the kid was not capable of forming even the truncated intent that is satisfactory for a conviction. In other words, he is no more guilty than would be a rabbit or a budgie. (Or, more poignantly, an adult with grossly impaired mental/perceptual function who had no idea what he or she was really doing). No guilt, no conviction, no penalty.

His Honour may have got it wrong, but judges aren’t generally idiots and they have precedents to consider, experienced lawyers before them and the evidence of expert witnesses. A reference to the case (2007-07-12 R v JA [2007] ACTSC 51 on suggests the extent of the evidence considered and the balancing exercise required.

Let’s not allow the sympathy that we all feel for the victim to become a reason to seek punishment of someone who is not responsible for his actions. (I agree with everyone who has spoken of the bigger issues – like who should take moral responsibility for putting s-xual ideas into a child’s mind).

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