Consent and HIV transmission in the Court of Appeal: R v Konzani
The case of R v Konzani was the second English HIV transmission case to be heard by the Court of Appeal and has to be read against the first. In R v Dica  the court ordered a retrial on appeal against a conviction under s. 20 of the Offences Against the Person Act 1861 (OAPA). Mr Dica had appealed on the basis that the trial judge had been wrong as a matter of law when he refused to allow his defence (that his partners had consented to the risk of transmission) to be considered by the jury. Mr Dica did not deny that he had failed to disclose his HIV status to those partners. The Court of Appeal held that a distinction had to be drawn between consenting to the deliberate infliction of actual or serious bodily harm (which may not operate as a defence, other than in certain limited contexts such as recognized contact sports), and consenting to the risk of such harm (which may be raised as a defence). In so concluding, the court indicated that risk-taking of this kind was not something that it could, or should, outlaw - and that if it was felt appropriate to change the law this was a matter for Parliament.
It was the fact that the Court in Dica had accepted the principle of consent operating as a defence to the risk of transmission (without elaborating on what this might mean) that provided Feston Konzani with his ground of appeal against conviction. Mr Konzani, a Malawian national living in the UK, had been imprisoned for ten years in May 2004 after being found guilty of recklessly transmitting HIV to three female sexual partners. At trial he had sought to argue that his partners' consent to unprotected sex equated to consent to the risk of HIV transmission. He brought his appeal on the ground that the trial judge had misdirected the jury as to the proper meaning of consent. The Court of Appeal upheld his conviction. It concurred with the trial judge's finding that there was a difference between merely running a risk and consenting to a risk. The latter, if it was to operate as a defence recognized at law, had to be 'willing' and 'conscious'. The strength of the court's position on this point is clear:
If an individual who knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner, the principle of her personal autonomy is not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse. On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant.
In the absence of disclosure of diagnosed HIV status it was extremely unlikely (although not impossible) that a person would consent to the risk of transmission, and difficult for a defendant to argue that he honestly believed in the existence of such consent - which may also operate as a defence - because the absence of disclosure was incongruous with, or undermined the credibility of any claim of, honest belief.
Put in these simple terms, R v Konzani deserves the attention it generally receives in texts on the criminal law - a short discussion or footnoted reference. It provides authority for a relatively straightforward, if novel and contentious, proposition of English law that consent to the risk of serious harm in the context of non-fatal offences against the person will only operate as a defence to a charge under s. 20 of the OAPA where it is willing and conscious (i.e. that there was an awareness of the specific risk(s) at the relevant time), and that an honest but mistaken belief in consent based on an assertion that the victim in fact ran the risk is insufficient.
The background to the decision, however, in the form of the trial that preceded it, provides additional material that contextualizes, complicates and illuminates the reason for upholding of the conviction and this is what I turn to now, concentrating on the way in which prosecution, defence and judge engaged with the question of consent.
-  R v Konzani  at .