Stuff Digital Edition

‘I was not in a position to consent’: The Mama Hooch acquittal causing concern

Two men had sex with a patron of the Mama Hooch bar in Christchurch on the same night. One was convicted of rape, while the other was acquitted, leading to questions about what constitutes consent. Nadine Roberts, Blair Ensor and Jake Kenny report.

*Not their real names permanent

In April 2018, Rose* was on a night out with friends at Mama Hooch. Already drunk, she was handed a free drink by Roberto Jaz, who told her to meet him outside in 20 minutes.

When she didn’t, Roberto’s older brother Danny, the bar’s manager, found her and took her to their family’s nearby Italian restaurant Venuti, but not before she had fallen over outside.

At Venuti, according to Rose, Roberto, who worked as a chef at the restaurant, and another man John* were in the kitchen.

On the bench were lines of white powder, which she was coached to snort.

Danny left soon after, locking the door behind him, and Roberto and John took turns having sex with Rose over the next few hours.

Roberto filmed some of the encounter using his cellphone.

The videos show Rose in an incoherent state. But while Roberto was found guilty of drugging, raping and sexually violating Rose, John was cleared of the charges during the same judge-alone trial in the Christchurch District Court.

Judge Paul Mabey, KC, is yet to release his reasoning for the acquittal but the Crimes Act states sexual violation by rape must prove several elements of the offence beyond reasonable doubt.

The first element is proving that the victim’s genitalia has been penetrated by the defendant’s penis.

That was not disputed in John’s case, because he did not deny they had had sex, although he claimed it was consensual.

The second addresses consent, which is defined as a decision freely given by a person who is in a position to make a rational decision. Lack of protest or physical resistance does not, of itself, amount to consent.

In John’s case, the judge had to assess if Rose was in a position to make a rational decision after drinking 1.5 bottles of wine and ingesting drugs. In order to reach a guilty verdict, the judge had to be sure there was no consent – or reasonable grounds for John to believe Rose was consenting.

When John was arrested and questioned by police in November 2018 as part of Operation Sinatra, a major investigation into the drugging and sexual assault of Mama Hooch patrons, he claimed his sexual encounter with Rose had been ‘‘110%’’ consensual.

John also claimed he had ‘‘no idea’’ about Rose being made to take drugs. He said he had always flirted with Rose, and after a few drinks they ended up having sex.

But when Rose was interviewed by police, she told a different story about how the night became a ‘‘trainwreck’’.

‘‘I was in no state to stop what was going on. The drugs they gave me kind of made me normalise it, like OK, this is happening. I was not in a position to consent.’’

Central to John’s denial was his assertion that non-consensual sex only happened when you forced someone to have sex – something Rape Prevention Education executive director Debbi Tohill vehemently disagrees with.

‘‘The responsibility lies with the person who perpetrates the violence,’’ Tohill says.

‘‘It’s up to them to ensure the person they want to have sex with isn’t too drunk or drugged, and that they are giving free and enthusiastic consent.’’

If a person is drunk or under the influence of drugs, they can’t consent, she says.

Surprised that John was acquitted, Tohill thinks we have a long way to go in understanding sexual consent.

‘‘You might go out, have a few drinks. You might be taking drugs.

‘‘That doesn’t mean you can be sexually assaulted.’’

Predators know what to say to police, she believes, and know it’s difficult to prosecute them when it’s a ‘‘he said, she said’’ situation.

Auckland barrister Marie Taylor-Cyphers, who is experienced in sexual assault cases, says consent is a complex issue involving whether all parties are willing participants, and believe others have consented.

Taylor-Cyphers says it’s important not to criminalise behaviour if one partner thinks the other is genuinely enjoying it.

‘‘We don’t want those men going to jail for 20 years. That’s not what the crime of rape is set up to reduce. It’s just the wrong focus.’’

Without having seen the videos, Taylor-Cyphers says there could have been a difference in the way the victim presented to the parties involved, and to the judge who was viewing them.

John’s statement about what he believed to be non-consensual sex is important because he believed rape involved force, which Taylor-Cyphers acknowledges is a simplistic view.

She thinks more needs to be taught around reasonable belief in consent, and understands why John’s acquittal is hard for some people to accept.

‘‘For some reason, the judge has found that [John’s] belief, messed up as it is, is reasonable ... there must have been some skerrick of evidence that the judge has pinned that to and gone, ‘well, yeah, maybe John did think that’.’’

Auckland barrister John Munro has represented numerous defendants in sexual assault cases, and says while a complainant may have been under the influence of drugs, that didn’t necessarily mean they did not consent: ‘‘It is a matter of degree.’’

Munro thinks John’s acquittal on the drugging charge could be over whether there was ‘‘concrete evidence’’ he was involved with, encouraged, or knew of the white powder being administered.

Regardless, the standard for proving a charge beyond reasonable doubt is very high. TaylorCyphers says it’s not good enough to think someone is possibly, probably or very likely guilty: ‘‘You must be sure.’’

John sobbed in the dock in April as he was acquitted of raping, sexually violating and drugging Rose, and spiking the drinks of two other women.

The Jaz brothers were each convicted of dozens of crimes, including rape, sexual violation, sexual assaults, and various druggings. They will be sentenced in August.

John is seeking name suppression.

‘‘I was in no state to stop what was going on. The drugs they gave me kind of made me normalise it, like OK, this is happening. I was not in a position to consent.’’

Rose’s police interview

NEWS

en-nz

2023-05-28T07:00:00.0000000Z

2023-05-28T07:00:00.0000000Z

https://fairfaxmedia.pressreader.com/article/281797108369878

Stuff Limited