Persuading the jury
On the day the Konzani trial started, the Court of Appeal delivered its decision in R v Dica  (Weait, 2005b). This resulted in extended discussions between counsel and the recorder as to its implications. The prosecution sought to persuade the recorder to adopt a restrictive interpretation, so that the defence of consent to risk should mean consent to the risk of HIV or another serious STI only, while the defence attempted to persuade him of the merits of a more expansive approach, so that it would be a defence if there was consent to the risk of any STI (including those that are less serious). The reason for these arguments over interpretation was that it would be easier for the prosecution to prove to the criminal standard that a person infected by a partner had not consented to the risk of that consequence. On the other hand, it would be to the defence's advantage if agreeing to unprotected sex implied consent on the part of the complainants to the risk of catching any disease that might result. The recorder was not persuaded by the defence argument, which in his judgment failed to reflect the fact that the charge was s. 20 of OAPA (an allegation of inflicting serious bodily harm), and in consequence the prosecution sought to show how the defendant's appearance and demeanour gave the complainants no grounds for suspecting that he might be HIV positive, emphasizing Konzani's active and conscious deception towards them, and his failure to engage in safer sex (and so limit the risk of transmission) by using condoms consistently. This enabled counsel to suggest that it was inconceivable that consent existed. For the defence, the ruling meant that the only viable approach was to concentrate his cross-examination on the complainants' awareness of the range of risks associated with unprotected sex - something with which (as we have seen with complainant A) he had some success. This at least enabled him to invite the jury in his closing submission to interpret this awareness as amounting (in effect) to consent to the risk of HIV transmission. In doing so, this provided him with an opportunity to suggest that the prosecution had in some sense misled the jury as to what really matters:
Time and time again in his closing speech for the Prosecution you were told that none of these women would have had sex with him if they had known. That is utterly irrelevant. It has no bearing on any legal principle here involved. It supports no aspect of any charge which is legally laid against Mr Konzani. It only serves to promote your moral censure of Mr Konzani, which is utterly beside the point, and to confuse two issues. We are not concerned with whether there was consent to sexual intercourse.
They have said, 'These women wouldn't have consented to having sex if they had known'. That is not an ingredient of any charge faced by Mr Konzani. We are concerned not with his knowledge of his condition, that is utterly beside the point.
So we are not concerned with consent to sexual intercourse, we are not concerned with knowledge of his condition, we are not concerned with re-writing the criminal law and making it an offence to have sexual relations without disclosing an infectious disease. That is not the law, and we are not in this case about the business of re-writing the law. You could make a moral argument for re-writing the law. This is not Parliament. We are here to do justice according to what the law is and the only issue which you are here to decide is whether in each specific case of the three women with whom you are concerned the specific facts in each case show that she may have consented to the risk of being infected with HIV, consent to the risk, not consent to being given the disease - two wholly different concepts. (D:CS pp. 12-13)
Here we can see that the defence, faced both with an unhelpful ruling from the judge and a deeply unsympathetic defendant, seeks to reduce the question it has to answer to a morally neutral, technical, legal one. Undoubtedly conscious of the effect which the complainants' evidence may have had on the jury's sympathies, and of the risk that the jury's prejudices and moral response could impact on their interpretation of the testimony, counsel tries over and over again to deny the relevance of these. In the process of reducing and abstracting the facts of the case to a set of discrete legal issues he attempts to ensure that their focus in deliberations is not on the risks that others expose us to, but those to which we willingly expose ourselves:
No-one wants HIV. No one wants lung cancer, but how many people risk those conditions? On the way up to court I picked up a packet of cigarettes that had been discarded. 'Smoking seriously harms you and others around you'. You can stand outside this court at lunch time and look at all the cigarette ends on the ground and if you trace the trail you will find groups of smokers puffing vigorously outside. They all have packets like this that tell them that smoking seriously harms them and people round them, people they love, their children, their wives, there is a serious health risk and yet these are sold all over the town in shops [sic] which say, 'Smoking kills you'. You go up to one of those smokers, you say, 'Do you consent to getting lung cancer?' They'll say, 'I'm more likely to get run over by the number 99 bus', 'My grandfather, Dave, lived till he was 99 and he smoked 20 Woodbine a day'. That's what they will say, I guarantee it. They are taking an obvious risk of serious harm to their health and deaths from smoking in this country are more significant a health factor than deaths from HIV.
That shows you that people do take risks with their health and if you ask them whether they consent to taking the risk of lung cancer they will say 'No', but the question which they are actually answering is, 'Do you want lung cancer?' isn't it? That is what they are saying, 'I don't want it'.
No-one wants HIV, no-one wants lung cancer, but the way people rationalise these risks is if they want something enough they are prepared to put those risks to the back of their mind.
It does not mean when they go to the doctor they look at the x-rays and they are shown to have lung cancer that they have not consented to that risk.(D:CS p. 13)
There are, it is clear, difficulties with this line of reasoning. It is not obvious, for example, how cigarette smoking (the result of a nicotine addiction that can cause smokers to ignore advice about health risks) can be compared to the desire for unprotected sex. Even if it were the case that the complainants desired this to such an extent that they were willing to ignore potential harm, a clear distinction exists between consenting to a risk in situations where the source of that risk can act so as to minimize it, and consenting to a risk with respect to which the potential 'victim' alone has control. The defence argument is arguably more persuasive and better taken when he focuses on the precautions we may reasonably be expected to, and do in fact, take in other non-addictive contexts (for example, the precautions that were taken during the scares about salmonella in eggs, mad cow disease and foot and mouth in the 1980s and 1990s). Counsel is also more persuasive when he points out that boxers and others involved in dangerous sports may suppress their awareness of the risks associated with those sports, but such suppression does not mean that they are not consenting to those risks. Counsel develops this theme when suggesting that the evidence of character and behaviour adduced by the prosecution to emphasize the defendant's culpability and the complainants' blamelessness tends towards establishing the converse:
All that evidence perhaps helps you to understand is how many, many different women of different ages and from different origins seem to have had an immediate attraction for Mr Konzani. It shows in the history of some three or four years that we have looked at how women would meet him on the street and come to his house and be in bed with him, knowing almost nothing about him.
No careful courtships in evidence here before entering into sexual relations. It just shows the speed with which these relationships started and helps to demonstrate how little thought is given by either party to engaging in sexual activity, because you will know from your experience of life that when people hit it off and they are strongly attracted and there is passion, reason goes out of the window. That does not mean that those people are not taking risks with their sexual health or as to whether they become pregnant or not. Because someone is overcome by passion and emotion and has unprotected sex, they can't say, 'Well, I didn't consent to the risk of becoming pregnant and having a baby'.
They have consented to that risk. They have taken that risk. Of course, it was not in the forefront of their mind at the time and, of course, they didn't want it to happen but they took the risk.
(D:CS p. 17)
It should be evident that there is a damaging paradox here. In the course of attempting to draw a line between the affective and emotional dimensions of the case and the technical question of whether consent to risk existed, counsel suggests that people use common sense and general knowledge as the basis for behavioural change. However, the rationality which is supposed to provide the basis for that change - the rationality that justifies criticizing and describing as blameworthy those who fail to take care when they are in a position to be able to do so - is frequently lacking when behaviour is the consequence of, or affected by, passion. He wants, needs indeed, the jury to conclude that at the relevant time(s) the complainants were thinking clearly and exercising a voluntary, willing, consent; but the converse may be true precisely because of the emotional, passionate, uncontrolled context in which unprotected sex occurred. It is similarly difficult for him to assert convincingly that even if they were not aware, they should have been:
What this also demonstrates, doesn't it, and this is relevant because you have to consider what thought these young women gave to the risk, if he was prepared to sleep with them so easily, surely it must have been apparent to them that he must have slept with others in that way and that if he is someone who is therefore involved in casual sexual relationships he is someone who it is more risky to have unprotected sex with. Is that not a fair point?
If he is in bed with woman A after 36 hours of knowing her is it not reasonable for her to think, 'Well, I wonder if he does this often? I wonder if he's married. I wonder if he's got a string of girls. I wonder if he'll come back next week'. If he has with them struck up such a passionate relationship leading to intimacy so quickly ought they not be on guard that he might be someone who is at higher risk of transmitting sexual diseases? Is that not obvious? (D:CS p. 17)
What is most notable here (and students of criminal law may find this a particularly illuminating example of the way in which courtroom advocacy is impacted by the principles that constrain it) is how counsel deals with the legal test for consent to risk. This depends upon persuading the jury about the existence of such consent as matter of fact, but here - in this context - demands avoidance of any reference to the complainants' actual states of mind when they were having sex with Konzani. Rather, he is obliged to focus instead on the normative question of what they ought to have been thinking. The prosecution has had the opportunity to suggest that there was no consent to risk because they had no knowledge of that risk (or at least no knowledge deriving from disclosure by Konzani) and this requires defence counsel to suggest that there was consent because there ought to have been knowledge. The strategy is to try and persuade the jury that Konzani's sexual partners were in a position to make willed, rational, decisions and that their failure to do so makes them the (ir)responsible parties.