An appeal court accepted the defence lawyer's claim that the lower court had not done enough to ascertain whether or not the rapist had realised the schoolboy was saying no.
The attacker, identified as 20-year-old Iraqi migrant Amir A., had been treated to a trip to the Theresienbad pool in December 2015 as part of the integration process.
He had also been provided with a 15-year-old helper and translator who was supposedly teaching him how to integrate into life in Vienna.
At the pool, Amir A. dragged the schoolboy, aged ten, into the changing rooms where he locked the door and violently sexually assaulted him, leaving him in need of urgent treatment at a local children's hospital. The boy is still plagued by massive post-traumatic stress disorder.
The boy, known only as Goran, grew up in Austria with his Serbian mother.
After the rape, Amir A. went back to the swimming pool and was enjoying himself on the diving board when police turned up.
The ten-year-old had told a lifeguard he had been attacked, and he informed the police.
Amir A., who had worked in Iraq as a taxi driver, was still clothed in swimwear when handcuffed. He confessed to the rape, saying he knew it was wrong but did it anyway because it was a "sexual emergency" as he did not had sex for four months.
He was found guilty of serious sexual assault and rape of a minor and was sentenced to six years in jail. Yet in a bizarre twist, the Supreme Court lifted the verdict of six years imprisonment and ordered a re-execution of the proceedings.
Supreme Court President Thomas Philipp said that while the verdict was "watertight" with regard to the serious sexual abuse of a juvenile, the written verdict on the second indictment, rape, cannot be sufficiently proved.
According to the Supreme Court, the first court should have ascertained whether the offender had thought that the victim agreed to the sexual act and whether Amir A. had the intention to act against the will of the boy.
The rape case therefore must go back before the regional court. According to Austrian law, the sentence was also lifted. In the second legal process, which presumably will only take place in 2017, a new sentence must be imposed. The 20-year-old is expected to remain in custody until then.
Story courtesy of Central European News.