A man who admitted raping a 12-year-old girl has walked free from court.
Daniel Cieslak, 21, of Leith had believed the girl – who he met in a taxi queue in Edinburgh in July 2015 – was 16. He burst into tears when police later revealed her true age.
The judge, Lady Scott, said she was taking the “wholly exceptional decision” not to sentence Cieslak.
Instead, she gave the first offender an absolute discharge at the High Court in Glasgow.
She said: “I do not consider there is any need for, or public interest in, punishment. To do so would in my view be disproportionate given the nature of the criminal culpability here.”
Student Cieslak, who was 19 at the time of the offence, had earlier pleaded guilty to the rape charge.
The court heard that the girl had travelled to Edinburgh on a Friday in July with her 13-year-old friend, where they met more friends and bought vodka.
In the early hours of the following morning, police searching for another girl who was missing spoke to the 12-year-old in Princes Street.
Prosecutor Kath Harper said officers had not noted her details “as they were not concerned by her age”.
At about 04:00, the girl and her friend met Cieslak and one of his friends in a taxi queue.
The victim said she was 16 and her friend was 17. The taxi driver later said he thought the girl was 20.
Cieslak then invited them to a party at his friend’s house, where he had sex with the 12-year-old.
The court heard she left the next morning, and there had been no suggestion of her being distressed.
The offence came to light days later after the girl told her sister she was “extremely worried” she could be pregnant.
An absolute discharge is given instead of sentencing an offender. It is not a conviction – although it may put before the court if the offender appears again for another offence.
It is used “when the court is of the opinion, having regard to the circumstances, including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment”.
Moving letter of ‘devastated’ 12-year-old rape victim after attacker walked free
A 12-year-old rape victim has spoken of her devastation after her attacker was spared jail because a judge thought she had been an “active participant” in sex with him.
The girl said she has attempted suicide following the decision to let Daniel Cieslak walk free after he pleaded guilty to raping her at a house party in Edinburgh in July 2015.
She believes Mr Cieslak, then aged 19, had sex with her while she was unconscious on a couch after drinking vodka and cherry cola during a night out with her 13-year-old friend.
A Scottish court gave Mr Cieslak a controversial absolute discharge in March this year after hearing that he believed the victim was over 16.
Lady Maggie Scott, the senior Scottish judge who sentenced the student, said: “The victim willingly participated in the sexual intercourse and there was, in fact, consent.”
But the girl has hit back against the ruling, asking: “How can someone consent when they can’t even talk?”
In an emotional letter published by the Daily Record, she says: “The guy Daniel said he didn’t know my age. I can barely remember that night.
“I have flashbacks, images ever since.
“I had passed out in the living room then I remember him picking me up, and then waking up in a bed.”
The victim, now 14 years old, says she suffers from anxiety and depression and takes tablets to help her get to sleep following the rape.
Once a “confident, happy” youngster, she claims she now has to “fake a smile”, and wrote: “I even tried to commit suicide because I was barely holding it together.”
She said she had celebrated with her family when Mr Cieslak pleaded guilty to the rape of a girl under the age of 13 years, but explained: “Then he walked free, nothing at all. I was devastated.”
In her judgment, Lady Scott ruled that Mr Cieslak “had reasonable grounds to believe she was above the age of consent” after he met the victim and her teenage friend at 4am in a taxi queue in Edinburgh City Centre.
The trio agreed to go to a party at his friend’s flat, and during the taxi journey Mr Cieslak said the girls claimed to be 16 and 17 years old.
The taxi driver said he believed the victim was 20 years old when he was questioned about the night.
Once at the party, Lady Scott said Mr Cieslak and the victim had sex – the judge said there was “no suggestion of her being distressed” when she left the following morning.
She revealed that police officers had spoken to the victim in the street before she met Mr Cieslak, and said they showed “no concerns about the age of the victim” while they were searching for a missing girl.
When explaining the reasons for Mr Cieslak’s absolute discharge, Lady Scott cited the victim’s “willingness to go to the flat to party and when she got there to engage in consensual sexual activity with you, in which she was an active participant”.
Consent is not a defence to the charge because children under 13 are deemed legally incapable of giving consent.
The victim’s mother was left furious at the sentence at Glasgow’s High Court and told the Daily Record: “I don’t think it sank in for [my daughter].
“She asked me, ‘What happens now mum?’ I told her, ‘Basically nothing, darling.’ She asked, ‘So he’s just walked free?’
“She knows she shouldn’t have been in town with her friend.
“For weeks she said, ‘It’s my fault. I shouldn’t have been there.’ But now she’s at the angry stage.”
The mother insisted that “what happened to her wasn’t consensual”.
Mr Cieslak, now aged 21, cried and held his head in his hands when he was arrested and interviewed about the rape.
Lady Scott said the reaction supported “the fact that your belief she was 16 was genuine” and told the court there was no “need for, or public interest in, punishment”.
The engineering student was not required to sign the Sex Offenders’ Register.