Rewritten judgement r v konzani PDF

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rewritten judgement of r v konzani (hiv sexual offence case) from a different perpective...

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OVERALL WORD COUNT: 3996

SUMMATIVE ESSAY LAW IN ACTION 1 CRIMINAL LAW OVERALL WORD COUNT: 3996 JUDGEMENT WORD COUNT: 2997 COMMENTARY WORD COUNT: 999

OVERALL WORD COUNT: 3996 Key Facts of Appeal 1 This is an appeal by you, Feston Konzani, against your Crown Court conviction of three counts of inflicting grevious bodily harm on three different women, contrary to s.20 of the Offences Against the Person Act 1861, which states

“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude”

2 You had been previously tested positive for HIV and were aware of the risks and consequences of transmission to other sexual partners. You knowingly took the risk of having repeated unprotected sexual intercourse with all three victims, none of which knew you were HIV positive. They all subsequently contracted the HIV virus from you.

3 The first complainant (DH) and yourself were in a relationship for about 4 weeks, over which period you had repeated unprotected sexual intercourse, and she tested HIV positive as a result of this.

She said at the time of the relationship there was no discussion about all the potential risks of the unprotected sex, she knew about the risks but they never crossed her mind.

OVERALL WORD COUNT: 3996 4 The second complainant (RW) grew a sexual relationship with you from a friendship, whether there were many occasions of sexual intercourse, sometimes protected, sometimes not, saying she was not concerned about unprotected sex because she trusted you, and so you had never had a conversation about contraception. Upon discovering your intercourse had resulted in her pregnancy, her doctor informed her she was HIV positive.

She said in evidence she had taken the risk of catching the infection, but she had not thought about the risk at the time because she trusted you and therefore wasn’t concerned.

5 The third complainant (LH) met you through work and her dream to help orphans in Africa, and your friendship developed into a sexual relationship. You told her that HIV was not very common in the part of Africa that you came from. The first time you had sexual intercourse, you used a condom. Afterward she joked, “I hope you haven't got any disease”, to which you replied, “Don't be stupid”.

She said that she trusted you and did not think it was her responsibility to ask you if you had had an Aids test, believing it was your responsibility to tell her. You eventually stopped using condoms and she consequently contracted HIV.

6 After your arrest, you refused to answer any questions about DH, but eventually asserted after questioning that he thought “this entire thing is a complete lie”. When asked about RW, you declined to answer most questions but did state that you had had

OVERALL WORD COUNT: 3996 sexual intercourse with her without a condom because “The entire sex thing had happened so fast”. You refused to answer all questions about LH.

7 When asked if any one of the victims would still have had sexual intercourse if they had known his HIV status, you declined to comment. You never suggested he believed they consented to the risk of contracting HIV from you.

8 The court was asked to address the ground of appeal regarding the Crown Court judge directing the jury to draw inferences from the appellant’s failure to give evidence, instead being asked to focus on the factual context of the case instead. I responded by directing that the appellant’s refusal to answer questions is in fact part of the facts of the case and the jury can make inferences from the facts presented, including the appellant’s response to questioning, since this is how a judgement must be reached; by evaluating the facts presented.

9 Now that I have recounted the facts of the case, I will proceed with the judgment of the evidence.

Defining Consent 10 I must first direct to the jury that when deciding whether each complainant willingly consented ‘to the risk of suffering the infection’ it must be noted I say ‘to the risk of suffering the infection’ and not just ‘suffering it’. Mr Roberts rightly raised this issue, observing the issue stems from whether she consented to the risk, not consented to being given the disease, which as he said, is a mile away from the former.

OVERALL WORD COUNT: 3996 11 Considering the definition of consent further, I will address the issue of whether there was willing consent, and by this I mean conscious. I asked the jury whether there is a distinction between ‘running a risk’ and ‘consenting to the risk’ of infection. The court believes there is no difference between the two. The whole idea of ‘protected’ sexual intercourse comes from the idea that the ‘protection’ is against the risks of disease and pregnancy, so if you consent to remove this protection, you in turn recognise the possibility of the risks that come along with it, regardless of the likelihood of the worst outcome. Running the risks mean you consent to the risk, it is a ‘package deal’ of sorts.

In short, consent to the risk of HIV must be informed and willing in order for you to use it as a defence.

12 It is necessary to consider if you had a guilty mind, as established in R v K [2002] 1 AC 422. For the purposes of s20 of the 1861 act, the mens rea required for the offence is the principle of recklessness, as articulated in R v Cunningham [1957] 2 QB 396 and R v Savage [1992] 1 AC 699 which effectively stated that if you foresaw the possibility of the complainant suffering harm or chose to take that risk, recklessness is established. Since you were aware of your HIV status and understood the consequences of spreading the infection, it is clear you foresaw the risks and satisfy the conditions to establish recklessness. However, the defence of consent may be possible as stated in R v Brown [1994] 1 AC 212.

13 It must be decided then, if the victims’ ‘recognise[d]’ the risk they ran, as set out in the earlier definition. In order to ‘recognise’ and therefore consent to the risks, they

OVERALL WORD COUNT: 3996 must have awareness of the consequences, in order to consent. Notwithstanding the express and uncontradictive evidence of the complainants, we must decide if your express disclosure, as the HIV carrier, is necessary for the victims to have sufficient awareness to give informed consent.

14 To illustrate the dilemma, I refer to Jones [1986] 83 CAR 375 and Aitken [1993] 95 CAR 304, which raises the question of whether the appellants had the defence of consent if they honestly believed that by taking part in the action (in both these cases, ‘rough’ and undisciplined sport), the victims consented to the possibility of harm (that was not intended). So, like here, you assumed by participating in sexual intercourse, the victims recognised the risks. We the court must address if this assumption can be negated by non-disclosure of your HIV status.

Autonomy 15 I will reference R v Dica [2004] EWCA Crim 1103 on the issue of consent was addressed when a wife was ‘ignorant’ of her husband’s disease and did not consent to the risk of infection, overruling R. v Clarence (Charles James) (1888) 22 Q.B.D. 23. Lord Woolf CJ in R v Barnes [2004] EWCA Crim. 3246 nicely summarises the judgement of Dica, which says a HIV positive male who infected a sexual partner with HIV would be guilty of an offence if he was “aware of his condition, he had sexual intercourse … without disclosing his condition”, but would have the defence of consent if he had made his partner aware and “with that knowledge [could have] consented to sexual intercourse with him because [she was] still prepared to accept the risks involved.”

OVERALL WORD COUNT: 3996 16 I would first like to negate the idea in Dica that consent to sex does not constitute consent to injury. This contradicts the initial definition set out in this case for consent and this is faulty logic, therefore I will ignore this.

17 The allegation in Dica states that the appellant was reckless by not disclosing (or ‘concealing’) their HIV status, meaning the victims were ignorant of the risks, and therefore the defence of consent was invalid. I believe that this view is incorrect and the defence of consent is possible without express disclosure. I do grant that it is not unreasonable to assume a lack of disclosure means a person would be HIV negative, but it is very much possible to acquire knowledge of the risks of unprotected sexual intercourse aside from the carrier’s disclosure, that should not be forgotten. This knowledge is, quite frankly, easily accessible. To say one could only fully evaluate the risks of unprotected sex through disclosure of another would mean the victim is irresponsible for, and wouldn’t have autonomy over, their own health. It also would restrict the personal autonomy of the carriers, and effectively blames them for any risk of infection that was not openly accepted, even when awareness of the risks can be easily acquired from elsewhere. Dica draws the line of responsibility for the consequences unfairly and creates an unnecessarily radical version of recklessness. We the court believe that there should be a fairer, more mutual distribution of responsibility that leaves people autonomous over their own health. Categorically, if the victim had a general awareness that unprotected sex had a risk of infection, they were able to evaluate and therefore recognise the risk.

18 The issue of consent in protected sexual intercourse must also be decided, since there were multiple instances of you having protected sexual intercourse with a condom

OVERALL WORD COUNT: 3996 with both RW and LH, so I believe it is relevant. The aim of protected sexual intercourse is to protect against the risks of infection, so to protect against the risks, you must be aware and understand the risks, in order to prevent them. This categorically implies an awareness of the risks, with an aim to minimise them. Even in the case of the condom being unnecessary in the mind of the non-carrier, if the carrier asserted the use of a precaution that the non-carrier consented to, it is clear the non-carrier recognised the carrier either wanted to prevent himself possibly getting infected, or prevent spreading his infection. By consenting to sexual intercourse with a precaution, it recognises a caution, therefore an awareness, to the risk of infection that was recognised, moreover the consent would be valid, and this is even more of an absolute fact that in the case of instances of unprotected sex.

19 I believe it is important to note that in Dica, the term ‘concealment’ is used to mean a lack of disclosure of HIV status, and therefore deception, asserting silence is inconsistent with honesty, and so the victim was deceived. I would like to challenge this assertion. There is a distinction between silence, which is effectively a form of indifference, and deliberate concealment. Silence gives the non-carrier the ability and responsibility to make a fair evaluation of the facts before accepting the risks of unprotected sex. To deliberately conceal the facts, either by expressly or implicitly misleading the non-carrier to make the fact of his HIV status appear to be not what it is, is deception. This means the victim is not able to know or evaluate the true facts, and therefore cannot give valid consent. This distinction is vital to recognise a carrier that desires to protect their own privacy, which is understandable considering the stigma that carriers of HIV can receive, with a carrier that is ‘maliciously’ causing harm, as said in s20 of the 1861 act. I agree with the assertion that deception does

OVERALL WORD COUNT: 3996 limit the autonomy of the victim to give informed consent, but there must be a twisting of the information for this to be the case.

20 I feel it is important to say that it cannot be denied that it is advisable to disclose one’s sexual health and any infection one may have. There is a covenant of trust in a sexual relationship where these matters, rightly so, should be disclosed. It is not difficult to do so. However, when I assert one should disclose this information, it is not the same as asserting they have to. I believe this should not be a legal imposition since there is a stigma against those suffering with HIV that should not be ignored, and to impose a form of retribution for being a disease carrier upon them would be a immoral- a form of prejudice. As much as a non carrier has the right to make a decision of informed, willing consent, a carrier has the right to personal autonomy, and it is very much possible to protect one’s sexual health without disclosure. Responsibility should be shared more equally.

21 It is clear from Dica that consent must be informed, but we the court do not believe that an express disclosure is necessary for this. It is frankly easy to become aware of the risks of unprotected sexual intercourse, and it should become a point of public policy to be autonomous over your sexual health and educate people about the risks of infection.

Public Policy 22 The consideration of public policy could be potentially limiting to the defence of consent. It is very much in the public interest to maintain public health and avoid and prevent. the spread of devastating illness. However, this cannot come at the price of

OVERALL WORD COUNT: 3996 removing personal autonomy in the context of private, adult, non-violent relationships, therefore creating a dilemma.

23 I believe that it is possible to balance both without directly deterring non-carriers away from those with HIV through the legal imposition of disclosure, and therefore removing the carrier’s right to sexual expression. The general public policy announcement in regards to HIV transmission is to practice ‘safe sex’ to protect health. It is a fallacy to say practicing ‘safe sex’ means abstention for those with HIV, since the whole notion was created to deal with the human fallibility of sexual behaviour, and it would be a discriminatory policy just to protect the sexual expression of non-carriers and further stigmatise of the disease.

24 Instead I believe the policy to practise ‘safer sex’ should come from education of the risks of the disease, and a policy to encourage disclosure and openness without stigma. Is it vital people have autonomy over their sexual health by being educated about their sexual decisions. Deterrence should not come from retribution of those infected, but education of the risks of unprotected sexual intercourse, and the somewhat overwhelming notion that they are wholly responsible for their own health. This form of deterrence would ideally encourage the public to take greater consideration into sexual decisions through promoting awareness of the risks, and the value of consent.

Fact Analysis. 25 In order to find you guilty for the offences according to s20 of the 1861 Act, the court must prove that you were reckless, in order to establish the necessary mens rea. Yet,

OVERALL WORD COUNT: 3996 you will not be convicted if, based on the judgement here, it can be proven there was informed, willing consent by the complainants of this case to take the risk of infection of HIV. The question of consent is dependent on the facts presented to the court. The court will address the consent of each complainant separately.

26 We find the first complainant (DH) did give valid consent to the risk of infection from sexual intercourse with you. She had previous knowledge of HIV at school, and even though she may not have ‘got to grips’ with the entirety of the consequences of contracting HIV, she recognised that by engaging in unprotected sexual intercourse she took the risk of catching a disease, a fact the complainant admitted. It would create an incorrect statement of public policy to say she consented to the risk of infection generally, but not to the risk of a serious disease such as HIV, since this would justify an insensible attitude to ‘safe sex’ about whether unprotected sex can be justified in certain situations more than others, dependent on the possible disease. It is more suitable to create a blanket statement to advertise safe sexual health on all accounts. In short, DH did give willing and informed consent, being conscious of the potential consequences and having autonomy over the decisions in regards to her sexual health.

27 In regards to the second complainant (RW), we the court find that she did also give valid consent to the risk of infection. She had both unprotected and protected sexual intercourse with you, which plays a part in solidifying the defence of consent on this account. In order for willing consent to be valid, the risks have to be recognised, and in choosing to consent to protected sex, this presents a recognition that there is a risk that she wanted to protect herself against. Therefore, she equally recognised she was

OVERALL WORD COUNT: 3996 willing to accept the risk by choosing to abandon the precaution of a condom when she consented to unprotected sex. Therefore, the complainant was aware of the risks and moreover gave informed, willing consent.

28 However, we do not find that the third complainant (LH) gave valid consent. In order for consent to be valid, there must be recognition of the risks without deception, but you deceived her when by replying ‘Don’t be stupid’ when she said to you ‘I hope you haven’t got any diseases’. You mislead the complainant and deliberately deceived her by implying you were HIV-negative. She did not therefore, give fully informed and willing consent, since she was not conscious of the true facts due to your deception.

Sentence 29 Based on this analysis of consent, I would quash the convictions for the first two counts from the complainants DH and RW. However, I would dismiss your appeal against conviction for the third count from the statement of LH.

OVERALL WORD COUNT: 3996 I chose to rewrite the judgment of R v Konzani1 heard in the Court of Appeal because although public policy and autonomy was balanced fairly well, morality needed more consideration. Similarly, I believe the public policy statement made in the case didn’t really consider the humanity of HIV carriers and was somewhat discriminatory. The Lord Justice Judge drew the line of responsibility quite unfairly2 and did not give an opportunity to challenge the definition of consent, and this was something I was eager to explore in my rewriting of the judgement, therefore my judgement took a very different stance to the original.

I decided, in terms of the structure, to write in the first person and directly address the appellant, as was done in Re A3, since the issue at hand is a sensitive one and I think addressing him directly made sure that it was acknowledged that his autonomy was considered too. I added headings for each part of the judgement so that it was easier to follow and made it clear how I intended to proceed through the judgment. The issues at hand are not light and hold a lot of moral weight so I believed it important to make clear how I would be addressing the issues so that I could give ‘better guidance to the structure and contents of their longer Judgments’4

I decided to change the original definition of consent that was set out. Weait criticised the judges for not putting it to the jury to decide the definition of consent, calling it faulty logic to say there is a difference between running the risk and consenting to the risk5. Therefore, I followed the idea that there isn’t a difference between the two and ‘consent to the risk 1 [2005] EWCA Crim 706 2 Antje Pedain, ‘HIV and Reponsible Sexual Behaviour’, (2005) 64, CLJ, 540 3 [2017] EWFC 48 4 Lord Neuberger, ‘No Judgement- No ...