On a summer evening in 2015, a 12-year-old girl and her friend, a year older, went to the city centre of Edinburgh to meet up with mates. They succeeded in buying vodka and around 11.30pm descended on a fast food outlet in the west end.
Four hours later, the mother of one of the girls reported her child missing and the police, presumably aware of roughly where the group could be found, arrived on the scene. They spoke first to the 12-year-old, who directed them to the missing girl. They were unconcerned about the age of the witness. To these experienced officers, she looked a lot older.
Around 4am, the 12-year-old and her friend got chatting in the taxi queue to a young man, Daniel Clesiak, who was 19, and a friend of his. The four agreed to go to an impromptu party in the flat of Clesiak's friend. Clesiak understood from the conversation in the queue that the 12-year-old was 16. The taxi driver thought she might be as old as 20.
Clesiak and the girl paired off and had sex. She left the flat later in the morning without complaint and there was no suggestion that she was distressed in any way. Clesiak's life as a student continued normally. But then the girl confided in her sister that she feared she was pregnant. As a result of this confession, the girl consulted her GP, who encouraged her to inform the police. Clesiak was arrested and charged with rape.
The law of Scotland is clear: where a victim is under the age of 13, she is deemed to be incapable of giving consent. The law exists not only to protect young people from adult predators, but to protect them from themselves – whether they enjoyed the experience or not. The fact that, in this case, the victim willingly had sex is beside the point. It is no defence to say that you had grounds to believe that the person in bed with you was above the age of consent.
Clesiak could be considered unlucky: the girl was 12 years and seven months. Had she been five months older, the law would have allowed him a defence based on his 'reasonable belief' that his victim was 16 or over. Clearly this fact weighed heavily in the mind of the judge, Lady Scott, who heard the case in the High Court last week. Having viewed the CCTV footage from the scene, she too concluded that the victim looked older than she was. In the judge's opinion, the circumstances of the case were wholly exceptional and, although Clesiak had pleaded guilty to rape, she made the extraordinary decision to give him an absolute discharge. This means that, although his offence will be recorded as a conviction, it is a conviction without a penalty.
The outcome points to the need for a clarification of official guidance on sexual offences. The Scottish government's Sexual Health Scotland website is unequivocal: '...anyone having sex with someone under 13 could be sentenced to life imprisonment.' Logically, this should be amended to make it clear that if the person over 16 genuinely believes that the other party is 13 or over, the offence is mitigated by the precedent that has just been set.
There is, however, another issue in the Clesiak case that has not received enough attention: if, after a long evening of socialising, the girl was drunk, then she was incapable of giving consent regardless of her age. Two months ago, a young woman left 'devastated' by the Crown Office's decision not to prosecute two Scottish footballers, who had sex with her in a flat in West Lothian after a night out, sued them. In that case, the woman maintained that she was incapable of giving consent to sex because of her drunken state.
A judge in the Court of Session, Lord Armstrong, said he found her evidence 'cogent, persuasive and compelling' and awarded her damages of £100,000. But the footballers, though judicially condemned as rapists, remain at liberty. There are no criminal sanctions in a civil action of this sort.
Clesiak too is a free man. It is much too early to say whether the remarkable leniency he has been shown will send the wrong message to men in taxi queues in Scottish cities in the early hours of the morning. But the result should be viewed within a larger context: the rise in the incidence of sexual crime in Scotland and the disgracefully low conviction rate in the most serious cases.
While the figures for almost all categories of crimes are going down, sexual crime has been steadily increasing in the last half-century and is now at its highest level since category statistics first became available in 1971.
In 2015-16, 1,809 cases of alleged rape were reported to the Scottish police, yet there were only 216 prosecutions of which 104 – one in 18 of the original complaints and less than half of the cases brought – resulted in convictions. In England, the conviction rate is 57% of cases brought: also low, though not quite so deplorable.
Rape Crisis Scotland says: 'Rape is a crime which can take a great deal of courage to report. It is worrying that such a small proportion of reported rapes are ever prosecuted.' Perhaps we should not be surprised: it seems little has been learned from the landmark case of Carol X, whose brutal rape in the east end of Glasgow in 1982 went unprosecuted for two strongly suspected reasons: she was a prostitute and she was drunk at the time. Ultimately the scandal of the Carol X case led to a successful private prosecution and the imprisonment of one of her assailants.
Had Carol X been 'asking for it'? Had the woman raped by the footballers in West Lothian been 'asking for it'? Had the 12-year-old in the taxi queue been 'asking for it'? Somewhere in the atavistic recesses of the public imagination, this irrelevant question continues to lurk. A quarter of a century after Carol X, the criminal justice system goes on betraying the victims of rape.