She took time to clearly explain the definition of consent in New Zealand, particularly as it pertains to intoxicated people.
She also debunked prominent misconceptions about victims of sexual offending.
“Research shows that widely held assumptions about how frequently sexual offending occurs, when; where; and against whom it occurs, are usually incorrect and they do not reflect the reality of sexual offending,” she said.
“It is therefore important for you to know that there is no such thing as a ‘typical’ sexual offending; a ‘typical’ sexual offender; or a ' typical’ complainant or victim of sexual offending.”
Justice Lisa Preston. Photo / Pool
She also spoke about sexual offending between people known to each other.
A number of the women who made police complaints about Muchirahondo were partners or in some form of intimate relationship with him - some casual, some more serious.
“Non-consensual sexual acts can be committed in a variety of circumstances,” said Justice Preston.
“This can happen when the people involved know each other; when the people have on other occasions had consensual sexual activity or do so again afterwards; or where the people involved are in a relationship with one another.
“Sexual offending is not less serious just because the people involved have any such relationship.”
The judge also told the jury there was no right or wrong when it came to a person’s response to a sexual assault.
“There is also no ‘typical’ response to sexual offending,” she explained.
“We know from research that persons subject to sexual offending react to that trauma where it occurs, in different ways, including in ways they may not be able to control.
“The ways they react might not be what you would expect; or what you think you would do in a situation.
“Some complainants appear distressed when they complain of an offence. Others do not.”
Justice Preston said it was important the jury did not form any particular view about a complainant based on their appearance.
She referred to a video interview they were shown, where Muchirahondo was questioned by police about a woman alleging he had raped her.
“You might recall, he expressed a view about the way in which (the woman) dressed on the night of the party as ‘more like a hooker in the streets’,” she said.
“I caution you that jurors must not make any assumptions about a complainant’s willingness to engage in sexual activity based on the type of clothing she was wearing.
“If someone dresses in what might be considered as revealing, it says nothing about whether she wanted to have sex.
“A complainant’s clothing therefore says nothing about whether she consented, in this case, to sexual activity with the defendant. Thinking of this nature has no place in this trial.”
John Hope Muchirahondo has been found guilty of raping a number of women.
Justice Preston also addressed the fact many of the women had been socialising and drinking with Muchirahondo before the assaults they accused him of.
“You must not assume a complainant consented to sexual activity nor that the defendant had reasonable grounds to believe she was consenting just because she was socialising and drinking with him before an alleged offence,” she warned.
“It is not uncommon for people to socialise and to drink to the point of intoxication.
“On those charges where alcohol use is part of the evidence, do not assume that drinking alcohol in and of itself indicates an interest in having sex.
“Similarly, you must not think that because a complainant was drinking, she was therefore ‘asking for trouble’.”
It was also pointed out that some of the women had flirted with or kissed Muchriahondo in the hours before they alleged he raped or violated them.
Justice Preston said the jury could not decide a verdict based on that fact.
“Just because a complainant returns home or goes elsewhere with a defendant, or there was consensual kissing and apparent flirting does not, of itself, mean that a complainant consented to anything that occurred after, nor that it was reasonable for the defendant to believe she was consenting for that reason,” she said in court.
“A person who engages in sexual activity is entitled to choose how far it goes and to have their position respected by the other person and upheld by the law.
“It will be important in each case where relevant that you consider carefully the issue of consent and Mr Muchirahondo’s belief in consent and whether that was reasonable at the time of the alleged acts.
“Of course… that does not mean you must ignore events that happened before and after, but you consider the issue of consent carefully and, importantly, at the time of the sexual acts.”
Some of the complainants in the case did not go to police immediately. Others initially denied there was any offending.
Some continued their relationship with Muchirahondo, or spent time with him after the assaults they alleged.
Justice Lisa Preston told a jury considering rape charges they could not assume the complainants drinking alcohol "in and of itself indicates an interest in having sex". Photo / 123RF
Justice Preston said the jury could not read anything into that.
“There may be many reasons why a complainant of a sexual offence might not immediately make a complaint, whether to family, friends or others. There can also be understandable reasons why someone does not involve the police straight away, including a fear of the process that may follow and the impact it might have on their relationships, including with the defendant,” she said.
“Research shows that complainants react in different ways. Some do complain close in time to the alleged offending. Others do not.
“Reasons can include because of shame; shock; confusion or fear of getting into trouble; not being believed; causing problems for other people; or because of a fear about the process that might follow.
“Importantly, as I have noted there is no such thing as a “typical” response. Different people react to situations in different ways.
“A complaint made some time after the alleged offending does not of itself mean the complaint is untrue, just as an early complaint does not of itself mean it was true.”
Justice Preston told the jury that her direction was important but should not be taken as her “expressing an opinion about any of the evidence” or what their verdicts should be.
“My direction says nothing whatsoever about Mr Muchirahondo’s guilt or innocence on any charge or charges.”
The jury spent more than 40 hours deliberating and in their second day, asked Justice Preston to further explain consent and drunk consent.
Rules of engagement: what is consent in New Zealand
A person consents to sexual activity only if they do it “actively, freely, voluntarily and consciously without being pressured into it”.
Allowing sexual activity does not amount to consent in some circumstances.
A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
A person does not consent to sexual activity if they allow it because of physical force, or threats, or the fear of force.
A person does not consent to sexual activity if it happens while they are asleep or unconscious.
A person does not consent to sexual activity if it happens while they are so affected by alcohol or some other drug that they cannot consent or refuse.
A person does not consent to sexual activity if it happens while they are affected by an intellectual, mental, or physical condition to such an extent that they cannot consent or refuse.
A person does not consent to sexual activity with another person if they allow it because they are mistaken about who the other person is.
A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality. For example, a person who consents to an intimate test or examination by a professional does not consent to them doing something to them sexually that is not part of the test.
Anna Leask is a Christchurch-based reporter who covers national crime and justice. She joined the Herald in 2008 and has worked as a journalist for 18 years with a particular focus on family and gender-based violence, child abuse, sexual violence, homicides, mental health and youth crime. She writes, hosts and produces the award-winning podcast A Moment In Crime, released monthly on nzherald.co.nz
