Consent: prosecution and defence strategy

Before turning to prosecuting counsel's approach to disproving the existence of consent, it is important to note that Konzani's admission that he in fact caused the complainants' infections and that he had been reckless (i.e. aware of the risk of transmission) meant that, in strictly legal terms, his conduct and fault were not in question. Despite this, prosecuting counsel was concerned to show the jury that Konzani was a man who had behaved in such a way that it was absurd to conclude that he could reasonably have believed the complainants to have consented to the risk of infection. Put another way, the prosecution strategy was to emphasize that the risk of infection was something to which he exposed them, rather than something to which they exposed themselves: that he was the active agent in bringing about the physical harm they had suffered.

This strategy is apparent in the following extracts from the examination- in-chief of one of the complainants in the case. Complainant A was 15 years old at the time she and the defendant met, and testified that prior to intercourse with him she had never had sex:[1]

Q: Did he [Konzani] know how old you were?

A: Yeah, I told him.

Q: And what was his reaction?

A: He wasn't very much bothered.

Q: I think you have said that you had sex with Feston?

A: Yeah.

Q: How often did that take place?

A: Er, when I moved in with him it was every night.

Q: And how did you find that?

A: Me, I was all right with it at first but then I just, I didn't like it no more.

Q: Why didn't you like it?

A: Because he was going too hard and it was hurting.

Q: Did anything happen as a result of it hurting?

A: Erm, I started bleeding.

Q: Did you tell Feston about that?

A: Yeah.

Q: Now, at this time when you were living with Feston did you have sex with anyone else?

A: No.

Q: And the sex that you had with Feston, did he use protection?

A: No.

Q: Do you understand what I mean by that?

A: Yeah.

Q: Did he wear a condom?

A: No.

Q: And when you had sex did he ejaculate inside you?

A: Yeah.

Q: Did you worry about becoming pregnant?

A: Not at first, no.

Q: Did you have any discussion about any other risks?

A: No. (E:A pp. 3-4)

These questions are designed to elicit an account of a man willing to have sex with an under-age woman, focused on fulfilling his own sexual pleasure at her expense, oblivious to (or actively ignoring) the fact that her experience was unpleasurable and painful, and who failed to use protection that would have minimized the risk of pregnancy and the transmission of disease. Disproving Konzani's defence is undertaken through painting a picture of someone of appalling moral character - someone it would be impossible for a jury to believe or find sympathetic. To counter this, the defence strategy (the only one realistically available) was focused on trying to convince the jury that the complainants were, irrespective of any moral fault on Konzani's part, aware of the risk they were taking. In so doing, counsel hoped to show that despite his failure to disclose his HIV status, they had - in effect - consented: not to the transmission of HIV itself (a defence that, in light of the House of Lords' earlier decision in R v Brown [1994],[2] was not legally available), but simply to the risk of its transmission. Because there had been no disclosure by Konzani, the only realistic strategy was to focus on the complainants' knowledge of the risks associated with having unprotected sex with someone about whose HIV status they were ignorant. Consider the cross-examination of complainant A:

Q: ... did you get sex education classes at school?

A: Yeah.

Q: It's a long time ago now but do you remember them?

A: Sort of, yeah.

Q: Did they teach you about contraception?

A: Yeah.

Q: About how to practise safer sex?

A: Yeah.

Q: Did they tell you about sexual infections?

A: Yeah.

Q: And were you aware that if condoms are worn it reduces the risk of spreading a sexual infection?

A: Yeah.

Q: Did they tell you anything about HIV? Did you know anything about AIDS?

A: No.

Q: Either from those lessons at school or from what you heard on the news? A: Er, well, they told us about it in school but I still didn't get to grips with what it was about. (E:A p. 6.)

Counsel has established, here, the general extent of A's risk-awareness - which does not (inconveniently, but perfectly understandably given the level of knowledge among many young people) extend to HIV. He thus changes tack slightly and focuses on the extent to which she was conscious of the risks associated with having unprotected sex with this particular man, whom she did not know very well before she agreed to have sex with him:

Q: What did you know about [Feston Konzani] at that stage?

A: Not much.

Q: But what had you asked him about himself?

A: Well, I asked him where he was from.

Q: And where did you understand him to be from?

A: Well, he said 'Africa', so I just ...

Q: And were you aware that there is an AIDS problem in Africa?

A: Not really, no.

Q: Did you think about that?

A: No.

Q: Did you ask him about his previous sexual partners, whether he had had any girlfriends before?

A: No ...

Q: What did you know about him before you agreed to have sex with him?

A: Not much.

Q: Why did you have unprotected sex with him when you had been taught about the safety of using a condom at school?

A: I don't know.

Q: Did you realise you were taking a risk of becoming pregnant?

A: Yeah.

Q: Were you prepared to take that risk?

A: Yeah.

Q: Did you realise you were taking a risk of catching a disease?

A: Yeah.

Q: And were you prepared to take that risk?

A: (No reply)

Q: Are you able to answer that question, please, [name of witness]?

A: Yeah.

Q: What is your answer?

A: Yes, I was, yeah.

Q: You knew you were taking a risk?

A: Yeah. (E:A pp. 7-8)

Counsel has now established A's awareness of the risk of catching a sexually transmitted infection (STI) by having unprotected sex, and so seeks to consolidate the impression of a risk-taking person. He does this by exploring her sexual relationship with P, another - subsequent - partner who (albeit on a purely probabilistic and epidemiological basis) was at greater risk of being HIV positive or having an STI.

Q: Did you know that people who inject drugs are at greater risk of having HIV?

A: Yeah.

Q: Because of sharing needles.

A: Yeah, I know.

Q: So why did you have a relationship with somebody who you knew was injecting drugs and might have ...

A: Well, I didn't know at first. When I first got with him he wasn't injecting.

[ ... ]

Q: ... but you came to know that he was injecting, didn't you?

A: Yeah, I found him in the bedroom injecting.

Q: How soon after you had started going out with him was that?

A: About two month.

Q: But you were going out with him for three months, weren't you?

A: Yeah.

Q: So is it true, [complainant's name], that you carried on having sex with him knowing that he was an injecting drug user?

A: Yeah.

Q: So what risk did you know you were taking doing that with P?

A: I knew it was a big risk.

Q: You also told [the complainant's doctor] that P might be gay or bi-sexual? A: Yeah.

Q: Do you know what risk there is of HIV in people who are gay or bi-sexual?

A: Yeah.

Q: Is it a greater risk or a smaller risk than people who are heterosexual?

A: I don't know, I only know it's a risk.

Q: So P was both an injecting drug user and gay or bi-sexual.

A: (No reply). (E:A pp. 8-9)

This cross-examination will, it is suggested, have created for the jury a complicated impression of A's understanding of HIV risk. As a young woman, not long out of school, she demonstrates only partial comprehension about the risks associated with unprotected sex. There is awareness of an increased HIV risk associated with having such sex with those who inject drugs, and with men who have sex with men, but a lack of understanding as to the magnitude of that risk as compared with unprotected sex with men who do not fall into those categories. Armed with that limited knowledge she is presented as someone willing to take a chance.

  • [1] This extract and all the other quoted extracts used in this chapter are taken from the officialtranscript of the trial of Feston Konzani in the Crown Court at Teesside, 6-14 May 2004(ref: T20037605). The abbreviations I use to denote the source of the extracts are as follows:E:A (evidence of complainant A); P:CS (prosecution closing speech); D:CS (defence closingspeech); S (submissions prior to swearing-in of the jury); R:SU (recorder's summing-up). Thepage numbers after the abbreviations refer to the page numbers of the different documentsin which the various quoted extracts are to be found.
  • [2] It was in this case that the House of Lords held (3:2) that consent could not - other than ina number of established contexts - operate as a defence to the deliberate infliction of actualor serious bodily harm.
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