Part from the defendant when they consented to

PartB1.   CaseSummary of R v Feston Konzani 2005 EWCA Crim 706 FactsOn November 2000, the defendant wasinformed that he was HIV positive and the risks associated with passing on thedisease. Nevertheless, the defendant had engaged in sexual relationships with threedifferent women however he did not inform them that he was HIV positive andknowingly he repeatedly had consensual, unprotected sex with them.

All threewomen then contracted the HIV virus. The defendant was sentenced to a total of10 years’ imprisonment on three counts of inflicting grievous bodily harm onthree women in accordance to S20 of the Offences against the Person Act 1861.The defendant appealed.  Issues     I.       Whetherthe claimants’ consented to the risk of contracting the HIV virus from the defendantwhen they consented to having sexual intercourse with him?   II.       Whetherthe defendant had a honest belief in the claimants’ consent of contracting theHIV virus whilst engaging in sexual intercourse which could be raised as apossible defence? DecisionThe Judges were in majority ofdismissing the appeal against the conviction by the defendant and concludedthat the claimants’ did not willingly or consciously consent to the risk ofsuffering the HIV virus.

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      I.       Whetherthe claimants’ consented to the risk of contracting the HIV virus from the defendantwhen they consented to having sexual intercourse with him? The Judge was specifically looking forthe prosecution to prove that the victims “did not willingly consent to therisk of suffering that infection” and reiterated that “willingly meantconsciously.”  The Judge found that noneof the victims willingly or consciously consented to the risk of suffering theHIV virus. The Judge was correct to refer to R v Barnes1 inparagraph 39 with regards to consent. Lord Woolfe CJ states that the defendant would have a defence “if he hadmade the partner aware of his condition, who with that knowledge consented tosexual intercourse with him because she was still prepared to accept therisks involved.” In this particular case, the defendant withheld theinformation which is why it could not have been used as a defence.

This isfurther discussed in paragraph 41 where the judge is correct to see that “whensexual intercourse has occurred these complainants were ignorant of hiscondition…So although they consented to sexual intercourse, they did notconsent to the transmission of the HIV virus.” This shows how the victims hadno knowledge of the defendant’s contraction of the HIV virus; therefore theycould not provide the defendant with an informed and honest consent.       II.       Whetherthe defendant had a honest belief in the claimants’ consent of contracting theHIV virus whilst engaging in sexual intercourse which could be raised as apossible defence? The defendant was unable to use thedefence that the victims consented to the risk of suffering the HIV virus.  The Judge refers to Jones2 andAitken3 inparagraph 36 where the trial judge refused to direct the jury that thedefendants could be acquitted based on their involvement in ‘horse play’ and”not intending to cause harm and genuinely believing that the injuries whichoccurred.. Occurred with the victim’s consent.

” However, this was not the casehere as the victims did not engage in rough or undisciplined horseplay. Therewere a range of options available to the jury with regards to this issue. Anexample provided in paragraph 44 states “Alternatively, he may honestly believethat his new sexual partner was told of his condition by someone known to themboth” which could provide evidence that the defendant honestly believed thatthe victim was giving informed consent however this was disregarded. The judgestates in paragraph 45 that “the defendant’s honest belief must be concomitantwith the consent… Unless the consent would provide a defence, an honest beliefin 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 defendanthonestly believed that any of the victims consented to the risk of contractingthe HIV virus. The Judge firmly stated that the truth was that the defendantsactually “deceived them” (victims). RatioDecidendiIf a partner knowingly transmits a diseaseto another individual through sexual intercourse, this can amount to a S20offence of the Offences Against the Person Act 1861 as an individual cannotwillingly or consciously consent to the risk of suffering a disease throughsexual intercourse if their partner has concealed the disease from them. 2.   Aprinciple that is created by judges in previous cases which are used for futurecases to follow. This is also known as case law which “comes from the decisionmade by the judges in the cases before them.”5Furthermore, appropriate case laws are applied to the specific facts of a caseand when a decision has been reached then this can be applied to similar factsof future cases.

6 An example of judicial precedent canbe found in R v Cunningham7which was approved in R v Savage8 withregards to establishing the mens rea of the defendant if they were reckless intheir actions. In Paragraph 37, the concept is summarised as “if he knew orforesaw that the complainant might suffer bodily harm and chose to take therisk that she would, recklessness sufficient for the purposes of the mens reafor s 20.” This is applicable to this particular case as recklessness wasadmitted by the defendant due to his knowledge of having the disease and hisdecision to conceal this from his partners. Another example judicial precedent canbe found in the highly important case of R v Dica9 whichprovided a distinction between the risk and consent to the HIV virus. This isevident from paragraph 41 which states “There is a critical distinction betweentaking a risk… and giving informed consent to the risk of infection with afatal disease.” This is important as the idea of informed consent derived fromthis case.

This was closely followed by R v Barnes10  where Lord Woolf CJ summarised the decision inDica in paragraph 39 that the defendant would have a defence “if he made thepartner aware of his condition, who with that knowledge consented to sexualintercourse with him.” In this particular case as the Judge found that none ofthe victims consented to the risk of transmitting the disease and moved awayfrom the principle derived in R v Clarence11 that”the consent of a wife to sexual intercourse carried with it consent to therisks inherent in sexual intercourse, including the risk of sexuallytransmitted disease.” This was regarded as no longer good law. R v Brown created the principle asmentioned in paragraph 40 that “the consent of the injured person does not forma kind of all purpose species of defence to an offence of violence contrary toS 20 of the 1861 Act.” This demonstrates how consent cannot justify anyviolence and is later mentioned in paragraph 45 the close link of consent andhonest belief where the judge summarises that “Unless the consent would providea defence, an honest belief in it would not assist the defendant.”  3.

   Publicpolicy can be defined as policies or laws that have been created by a state inorder to protect the state’s citizens. This allows the government to performwithin the publics’ best interest and prevent policies/laws that go against society’sinterests.12 An example of public policy can beseen in paragraph 36 with regards to rough and undisciplined sport or playwhich was taken from R v Brown13where Lord Mustill stated “the criminal law does not concern itself with theseactivities, provided that they do not go too far.

” This demonstrates how thelaw can only intervene to an extent in order to protect citizens from harm iftheir actions go further too deliberately injure another individual. This was repeatedin paragraph 40 where it was stated that “consensual infliction of violence arespecial” and still the “subject of special treatment by the law.” This impliesthere is no fixed law concerning this matter however the consent of a personwho suffered injuries cannot be used as a defence which protects victims fromfurther harm even if they agreed to it. Another example of public policy canbe seen from paragraph 42 with regards to informed consent. This refers to theprinciple of allowing individuals the freedom to make their own decisions andreaffirms that if an individual does not disclose to their sexual partner thefact that they are suffering from a disease; willingly passes on the diseasethrough consensual sexual intercourse, and then they are ‘deceived.’ Thisdemonstrates to the public that the victim’s personal autonomy has beenbreached as they were unaware of their partner’s condition and the defendantcannot rely on the defence of honest belief in the victim’s consent.

The lawadopted in this case helps to raise awareness of the risks regarding HIV andaims to protect all potential victims and defendants. This is to portray themessage that sufferers of any sexually transmitted disease should disclose thisinformation with any sexual partner and seek the necessary treatment availablein order to prevent infecting another individual and preserve their personalautonomy.   1 2004EWCA Crim. 32462 198683 CAR 3753 199395 CAR 3044 1994 1AC 2125 Catherine Elliott and FrancesQuinn, English Legal System EighteenthEdition, (first published 1996, Pearson Education Limited) page 146 Ibid,page 147 1957 2QB 3968 1992 1A C 6999 2004EWCA Crim 110310 2004EWCA Crim, 342611 (1888)22 QBD 2312 The LawDictionary, ‘What is PUBLIC POLICY?'(Black’s Law Dictionary Free 2nd Ed. andThe Law Dictionary) < https://thelawdictionary.org/public-policy/> accessed 18 January 201813 R vBrown (n 27)  212