Part from the defendant when they consented to

Part
B

1.   
Case
Summary of R v Feston Konzani 2005 EWCA Crim 706

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

 

Facts

On November 2000, the defendant was
informed that he was HIV positive and the risks associated with passing on the
disease. Nevertheless, the defendant had engaged in sexual relationships with three
different women however he did not inform them that he was HIV positive and
knowingly he repeatedly had consensual, unprotected sex with them. All three
women then contracted the HIV virus. The defendant was sentenced to a total of
10 years’ imprisonment on three counts of inflicting grievous bodily harm on
three women in accordance to S20 of the Offences against the Person Act 1861.
The defendant appealed.

 

Issues

     
I.       
Whether
the claimants’ consented to the risk of contracting the HIV virus from the defendant
when they consented to having sexual intercourse with him?

   
II.       
Whether
the defendant had a honest belief in the claimants’ consent of contracting the
HIV virus whilst engaging in sexual intercourse which could be raised as a
possible defence?

 

Decision

The Judges were in majority of
dismissing the appeal against the conviction by the defendant and concluded
that the claimants’ did not willingly or consciously consent to the risk of
suffering the HIV virus.

 

     
I.       
Whether
the claimants’ consented to the risk of contracting the HIV virus from the defendant
when they consented to having sexual intercourse with him?

 

The Judge was specifically looking for
the prosecution to prove that the victims “did not willingly consent to the
risk of suffering that infection” and reiterated that “willingly meant
consciously.”  The Judge found that none
of the victims willingly or consciously consented to the risk of suffering the
HIV virus. The Judge was correct to refer to R v Barnes1 in
paragraph 39 with regards to consent. 
Lord Woolfe CJ states that the defendant would have a defence “if he had
made the partner aware of his condition, who with that knowledge consented to
sexual intercourse with him because she was still prepared to accept the
risks involved.” In this particular case, the defendant withheld the
information which is why it could not have been used as a defence. This is
further discussed in paragraph 41 where the judge is correct to see that “when
sexual intercourse has occurred these complainants were ignorant of his
condition…So although they consented to sexual intercourse, they did not
consent to the transmission of the HIV virus.” This shows how the victims had
no knowledge of the defendant’s contraction of the HIV virus; therefore they
could not provide the defendant with an informed and honest consent.

 

 

 

   
II.       
Whether
the defendant had a honest belief in the claimants’ consent of contracting the
HIV virus whilst engaging in sexual intercourse which could be raised as a
possible defence?

 

The defendant was unable to use the
defence that the victims consented to the risk of suffering the HIV virus.  The Judge refers to Jones2 and
Aitken3 in
paragraph 36 where the trial judge refused to direct the jury that the
defendants could be acquitted based on their involvement in ‘horse play’ and
“not intending to cause harm and genuinely believing that the injuries which
occurred.. Occurred with the victim’s consent.” However, this was not the case
here as the victims did not engage in rough or undisciplined horseplay. There
were a range of options available to the jury with regards to this issue. An
example provided in paragraph 44 states “Alternatively, he may honestly believe
that his new sexual partner was told of his condition by someone known to them
both” which could provide evidence that the defendant honestly believed that
the victim was giving informed consent however this was disregarded. The judge
states in paragraph 45 that “the defendant’s honest belief must be concomitant
with the consent… Unless the consent would provide a defence, an honest belief
in it would not assist the defendant” which was established in R v Brown4.
The judge was correct to find no evidence to believe that the defendant
honestly believed that any of the victims consented to the risk of contracting
the HIV virus. The Judge firmly stated that the truth was that the defendants
actually “deceived them” (victims).

 

Ratio
Decidendi

If a partner knowingly transmits a disease
to another individual through sexual intercourse, this can amount to a S20
offence of the Offences Against the Person Act 1861 as an individual cannot
willingly or consciously consent to the risk of suffering a disease through
sexual intercourse if their partner has concealed the disease from them.

 

2.   
A
principle that is created by judges in previous cases which are used for future
cases to follow. This is also known as case law which “comes from the decision
made by the judges in the cases before them.”5
Furthermore, appropriate case laws are applied to the specific facts of a case
and when a decision has been reached then this can be applied to similar facts
of future cases.6

 

An example of judicial precedent can
be found in R v Cunningham7
which was approved in R v Savage8 with
regards to establishing the mens rea of the defendant if they were reckless in
their actions. In Paragraph 37, the concept is summarised as “if he knew or
foresaw that the complainant might suffer bodily harm and chose to take the
risk that she would, recklessness sufficient for the purposes of the mens rea
for s 20.” This is applicable to this particular case as recklessness was
admitted by the defendant due to his knowledge of having the disease and his
decision to conceal this from his partners.

 

Another example judicial precedent can
be found in the highly important case of R v Dica9 which
provided a distinction between the risk and consent to the HIV virus. This is
evident from paragraph 41 which states “There is a critical distinction between
taking a risk… and giving informed consent to the risk of infection with a
fatal disease.” This is important as the idea of informed consent derived from
this case. This was closely followed by R v Barnes10  where Lord Woolf CJ summarised the decision in
Dica in paragraph 39 that the defendant would have a defence “if he made the
partner aware of his condition, who with that knowledge consented to sexual
intercourse with him.” In this particular case as the Judge found that none of
the victims consented to the risk of transmitting the disease and moved away
from the principle derived in R v Clarence11 that
“the consent of a wife to sexual intercourse carried with it consent to the
risks inherent in sexual intercourse, including the risk of sexually
transmitted disease.” This was regarded as no longer good law.

 

R v Brown created the principle as
mentioned in paragraph 40 that “the consent of the injured person does not form
a kind of all purpose species of defence to an offence of violence contrary to
S 20 of the 1861 Act.” This demonstrates how consent cannot justify any
violence and is later mentioned in paragraph 45 the close link of consent and
honest belief where the judge summarises that “Unless the consent would provide
a defence, an honest belief in it would not assist the defendant.”

 

3.   
Public
policy can be defined as policies or laws that have been created by a state in
order to protect the state’s citizens. This allows the government to perform
within the publics’ best interest and prevent policies/laws that go against society’s
interests.12

 

An example of public policy can be
seen in paragraph 36 with regards to rough and undisciplined sport or play
which was taken from R v Brown13
where Lord Mustill stated “the criminal law does not concern itself with these
activities, provided that they do not go too far.” This demonstrates how the
law can only intervene to an extent in order to protect citizens from harm if
their actions go further too deliberately injure another individual. This was repeated
in paragraph 40 where it was stated that “consensual infliction of violence are
special” and still the “subject of special treatment by the law.” This implies
there is no fixed law concerning this matter however the consent of a person
who suffered injuries cannot be used as a defence which protects victims from
further harm even if they agreed to it.

 

Another example of public policy can
be seen from paragraph 42 with regards to informed consent. This refers to the
principle of allowing individuals the freedom to make their own decisions and
reaffirms that if an individual does not disclose to their sexual partner the
fact that they are suffering from a disease; willingly passes on the disease
through consensual sexual intercourse, and then they are ‘deceived.’ This
demonstrates to the public that the victim’s personal autonomy has been
breached as they were unaware of their partner’s condition and the defendant
cannot rely on the defence of honest belief in the victim’s consent. The law
adopted in this case helps to raise awareness of the risks regarding HIV and
aims to protect all potential victims and defendants. This is to portray the
message that sufferers of any sexually transmitted disease should disclose this
information with any sexual partner and seek the necessary treatment available
in order to prevent infecting another individual and preserve their personal
autonomy.

 

 

1 2004
EWCA Crim. 3246

2 1986
83 CAR 375

3 1993
95 CAR 304

4 1994 1
AC 212

5 Catherine Elliott and Frances
Quinn, English Legal System Eighteenth
Edition, (first published 1996, Pearson Education Limited) page 14

6 Ibid,
page 14

7 1957 2
QB 396

8 1992 1
A C 699

9 2004
EWCA Crim 1103

10 2004
EWCA Crim, 3426

11 (1888)
22 QBD 23

12 The Law
Dictionary, ‘What is PUBLIC POLICY?'(Black’s Law Dictionary Free 2nd Ed. and
The Law Dictionary) accessed 18 January 2018

13 R v
Brown (n 27)  212

x

Hi!
I'm Mack!

Would you like to get a custom essay? How about receiving a customized one?

Check it out