Consent — R v Konzani

Facts

The defendant, Konzani, was HIV-positive and had unprotected sexual intercourse with several women without disclosing his status. He was charged with reckless grievous bodily harm under section 20 OAPA 1861 for transmitting HIV to one complainant and attempting to do so to others.

History

The defendant was convicted at trial. He appealed, arguing that the complainants had consented to the risk of HIV transmission by consenting to unprotected sex.

Issue

Whether consent to unprotected sexual intercourse constitutes consent to the risk of HIV transmission when the defendant knows he is HIV-positive but does not disclose this to the complainants.

Held

Appeal dismissed. Convictions upheld. Consent to sexual intercourse does not equate to consent to the risk of HIV transmission unless the complainant makes an informed and willing decision to accept that specific risk.

Ratio

• Consent to sexual intercourse is not consent to the risk of HIV transmission unless the complainant has knowledge of the defendant's HIV-positive status and voluntarily accepts that risk. Mere willingness to have unprotected sex does not constitute informed consent to the risk of contracting HIV.

Key reasoning

• Consent to a sexual act does not automatically extend to consent to all risks inherent in that act, particularly where the risk is life-threatening and known to one party but not the other.
• Valid consent to the risk of serious harm requires the complainant to have actual knowledge of the specific risk and to voluntarily accept it.
• The defendant's knowledge of his HIV-positive status, coupled with his failure to disclose it, meant the complainants could not make an informed choice about accepting the risk of transmission.
• Public policy supports the protection of individuals from undisclosed exposure to life-threatening diseases, and the criminal law should reflect this.

Obiter

• The court suggested that if a complainant knows of the defendant's HIV status and voluntarily consents to unprotected sex, that may constitute valid consent to the risk of transmission, but this was not the situation here.

Where it fits in the module

Konzani sits alongside Dica and Brown in the module's examination of consent as a defence to non-fatal offences. It sharpens the distinction between consent to an act and consent to a risk, and illustrates the courts' reluctance to treat sexual consent as encompassing consent to life-threatening harm. It contrasts with Wilson (tattooing) and Brown (sadomasochism) on the limits of consent.

Criticisms

• The decision may create uncertainty about what level of knowledge constitutes 'informed consent' to disease risk.
• It potentially criminalises non-disclosure of HIV status even where transmission does not occur (attempted GBH).
• The reasoning may conflict with the principle that adults are free to assume risks in private sexual activity.
• The distinction between consent to the act and consent to the risk is conceptually difficult to maintain in practice.