A 21-year-old student has walked free from court after pleading guilty to the rape of a 12-year-old girl.
Daniel Cieslak, of Leith in Edinburgh, was granted an absolute discharge in what the judge described as “wholly exceptional” circumstances at Glasgow high court.
Cieslak, who was 19 at the time, met the victim and her friend, aged 13, in a taxi queue in Edinburgh after a night out in the summer of 2015, the court heard.
The engineering student said he believed the victim was 16 and her friend 17 when they went to a flat for an impromptu party. Cieslak and the 12-year-old then had sex, the court was told.
The judge, Lady Maggie Scott, said Cieslak was culpable under “strict liability”, where victims under 13 are deemed by law to be incapable of consent, but said there was no public interest in punishment due to “a number of exceptional circumstances”.
Cieslak appeared to be on the verge of tears as he left the dock to be hugged by a number of tearful women who supported him in court.
The court heard that police first became aware of the rape when the 12-year-old told her sister she was “extremely worried” she could be pregnant. The victim’s GP then encouraged her to inform the police, the court was told.
Scott said in her ruling that the victim “willingly participated” in the sex and that “she had no concerns and there was no suggestion of her being distressed”.
Cieslak, who had been studying architectural engineering at Napier University, had been “subject to considerable pressure and distress from the burden of this prosecution”, the judge said.
Scott said: “Although the factual absence of consent is not an ingredient of the offence, it is a material factor for the purposes of sentencing. Here the victim willingly participated in the sexual intercourse and there was, in fact, consent.
“So too, whilst there is no defence to this offence because of strict liability, the fact is that you would have had a defence if the victim had been a few months older.
“The statutory offence for girls aged over 13 to 16 years provides for a defence based on reasonable grounds of belief by the accused that the victim was above the age of consent.
“It is clear from the agreed facts presented to me that the Crown would have been unlikely to, or unable to, exclude such a defence and they do not dispute this. Accordingly, it is very unlikely the Crown could prove a crime had the victim been over 13 years of age.”
Cieslak became distressed when he was told the age of the victim by police officers and has dropped out of a college course, Scott said.
Taking into account that all witnesses on the night thought the victim was over 16, that Cieslak was told she was 16 and with no signs of distress, Scott said: “Your criminal culpability here is wholly restricted to the application of strict liability within this offence.
“That is in marked distinction to other reported cases under this statutory provision, which have involved conduct involving assault or recklessness or force, or the absence of consent or have resulted in distress to the victim – all of which are factors which raise the need for punishment.
“In addition, there is no suggestion here of predatory conduct or grooming or manipulation or deception.”
Scott said she did not believe there was “any need for, or public interest in, punishment.” She added: “To do so would in my view be disproportionate given the nature of the criminal culpability here.
“Nor do I consider there is any basis for, or real public interest in, requiring your notification under the Sexual Offences Act 2003.
“Considering all of these factors I have reached the conclusion that justice is best served in this case by taking the wholly exceptional decision not to sentence you and instead I discharge you absolutely.”
Scott previously provoked anger when she said a convicted rapist deserved “credit” for overcoming his “very difficult background” to become a successful business owner.
The judge made the remarks as she sent Hamadache Hamza to jail for six years for an attack on a 30-year-old woman at her home in Scotstoun, Glasgow, in May 2011.
A spokeswoman for Rape Crisis declined to comment on the Cieslak case but said: “A 12-year-old child does not legally have the capacity to give their consent and sexual activity with them is always therefore a sexual offence.”
They added: “It’s any adult’s legal and moral responsibility to actively seek and be sure they have received the other person’s consent for any and all sexual activity with them.
“This includes making sure that that person has the freedom and capacity to give their consent. For example, if someone is unsure as to whether the person they’re with is too drunk to freely consent, they should not have sex with them.”