Too young to rape

LG 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
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VicePope VicePope 10:23 am 19 Jul 07

(This is a newish bit to the topic, so I can break my self-imposed silence). I have always understood that the role of judges is to interpret and apply the law. Now, that properly allows some limited room to move (check out the theoretical basis for promissory estoppel, and perhaps for negligent advice as examples). A lower court judge can properly fill in (but in a consistent way) the gaps in common law left by previous decisions but he/she cannot disturb precedent established by higher courts or the law made by Parliament. (However, a law outside Parliament’s wide legislative power can be found to be so and ignored). A superior court judge (eg High Court) can overturn precedent but they are mostly reluctant to do so. Something to do with humility – recognising that everyone for the last umpteen years might have been right.

The room for, say, an ACTSC judge to move is pretty limited – the best chance is probably to take an available but uncommon view of the facts. Where a judge makes an adventurous decision, someone will appeal and slap it down (see some first instance Fed Crt migration/refugee decisions). All that happens is broken hearts and more costs.

Heavs Heavs 8:43 am 19 Jul 07

If you went a bit further in your legal studies you would realise that 99% of the judiciary FOLLOW precedent. They don’t set it. If the CJ just decided to make his own test, overturning precedent from a higher court in the process, then it would be an appelable error and the decision would be overturned in a flash.

And Nyssa, yeah I agree – Politicians aren’t always in touch with the general public. But I’d rather have my laws being made by people who are elected and answerable as opposed to unelected, unrepresentative judges who have a life tenure. Give me a bench of Callinan’s over a bench of Kirby’s any day.

Special G Special G 7:00 pm 18 Jul 07

I’m with Nyssa on this one. Every time a Judge makes a decission they are in effect creating new law. Legal studies in high school will teach you about precedence. The letter of the law is grey so Judges can interpret it. Jusges are supposed to reflect the views of society. They fail miserably regularly.

nyssa76 nyssa76 6:19 pm 18 Jul 07

Heavs, and yes, Parliament are known for being in touch with the general public….

nyssa76 nyssa76 6:18 pm 18 Jul 07

Heavs, as the mother of a 12yo girl I would hope that the law would protect my child and should she be assault, punish her attacker.

I’m in favour of laws that reflect the changes in society. We don’t have the scold’s bridle or a ducking stool anymore to punish people, we have laws which are meant to protect ALL members of society especially from those who are violent.

Just because your attacker is under a certain age doesn’t negate the consequences of their actions, especially since this child had a history of violence, failed FACS intervention and a psychiatrist who failed to address the rape at all in her therapy sessions with the child.

As I have said previously this boy needs some serious psychotherapy and removal from his parents. He also needs to be taken out of mainstream schooling and carefully watched around female children.

Heavs Heavs 5:01 pm 18 Jul 07

So I take it Nyssa is in favour of activist judges who attempt to make the law up as they go along, rather than judges who actually follow the letter of the law as LAID DOWN BY PARLIAMENT.

neanderthalsis neanderthalsis 4:54 pm 18 Jul 07

Does he weigh the same as a duck?

Thumper Thumper 12:29 pm 18 Jul 07

A witch dunking!

A witch dunking!

Forsooth one hast not partaken of a witch dunking since the cruel winter of 1472.

Maelinar Maelinar 12:27 pm 18 Jul 07

Maybe we should burn him in an attempt to evict the evil spirit that made him do it.

Now THAT is what a u14 in 1845 would have been taking into consideration.

nyssa76 nyssa76 12:17 pm 18 Jul 07

Those same “legal principles” have been adapted to suit the times, in the past i.e. Women being allowed to work/vote/gain custody of children.

Given that the world has dramatically changed since the laws were written, one would assume the legal profession would get a clue and update the laws according to how society functions now.

Or are they happy living as cavemen?

caf caf 11:18 am 18 Jul 07

The hubris in believing we should overturn legal principles that have served and safeguarded our way of life over at least five hundred years, based on your alleged “common sense”, is unbelievable.

Snahons_scv6_berlina Snahons_scv6_berlina 10:32 am 18 Jul 07

thats right VY, we must never ever question our learned legal masters.

VYBerlinaV8 now_with_added grunt VYBerlinaV8 now_with_added grunt 9:49 am 18 Jul 07

But Nyssa, the court FOUND that way, so it MUST be right.

nyssa76 nyssa76 10:35 pm 17 Jul 07

Special G – and any mother, well maybe just me…

VicePope, I read the report. I didn’t agree with it. Nor do I believe that “successful” rehabilitation has been undertaken.

Then again CARAU is full of femi-nazis and I do wonder about child psychiatrists who don’t ask about a vitally important incident which later led to court proceedings.

Special G Special G 5:36 pm 17 Jul 07

If it was my little girl I’d bury the little shit. Ask any dad and he would probably say the same thing.

Thumper Thumper 4:17 pm 17 Jul 07

touche Caf 😉

Maelinar Maelinar 4:04 pm 17 Jul 07

Maybe they believed that nobody in their right mind would question the presumption that holding a knife to somebody’s throat was interpreted as anything other than intent.

caf caf 3:58 pm 17 Jul 07

It would have been more correct to say that the court found that the evidence presented by the prosecution did not disprove the presumption that he didn’t know that what he was doing was wrong.

VYBerlinaV8 now_with_added grunt VYBerlinaV8 now_with_added grunt 3:53 pm 17 Jul 07

“VY etc – the court found that the accused did not know that what he was doing was wrong, “deep down” or otherwise.”

I completely understand that this is what the court found. But a court ‘finding’ something does NOT make it FACT.

I think you have all together too much faith in the legal system!

caf caf 3:39 pm 17 Jul 07

“Common sense is the collection of prejudices acquired by age eighteen.”

– Albert Einstein.

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