R v Konzani [2005] EWCA Crim 706

Facts

  • Mr. Konzani, knowing he was HIV positive, engaged in unprotected sexual activity with multiple women without disclosing his HIV status.
  • The women agreed to sexual intercourse but were unaware of the risk of HIV transmission.
  • The case centered on whether agreement to sexual activity constituted consent to the risk of contracting HIV and whether failure to disclose HIV status invalidated such consent.
  • The court considered the legal requirement for consent in sexual activity involving known risks, specifically serious illness.

Issues

  1. Does consent to sexual activity amount to consent to the risk of HIV transmission when the HIV-positive status is undisclosed?
  2. Is valid consent to sexual intercourse contingent upon awareness of the specific risk of infection?
  3. Does the failure to disclose HIV status to a sexual partner constitute dishonesty that vitiates consent?
  4. How does the distinction between consent to sex and consent to health risks affect criminal liability?

Decision

  • The Court of Appeal held that valid consent to sexual activity, in the context of HIV transmission, requires the partner to be informed of the HIV-positive status.
  • Consent to sex does not automatically include consent to the risk of contracting HIV when the risk is not disclosed.
  • Concealing HIV status was found to invalidate the consent given by the sexual partners.
  • Mr. Konzani was held criminally liable for inflicting harm as the consent obtained was not informed.
  • The ruling emphasized the necessity of openness about health risks for valid consent.

Legal Principles

  • Informed consent is required for valid agreement to sexual activity where transmission of serious illness, such as HIV, is possible.
  • Consent given to sexual intercourse does not extend to undisclosed material risks, notably the risk of disease transmission.
  • Failure to disclose HIV-positive status constitutes dishonesty that vitiates legal consent, resulting in criminal responsibility for resulting harm.
  • The principle of separating agreement to the sexual act from agreement to specific risks underpins liability for non-disclosure cases.

Conclusion

R v Konzani established that informed consent is essential in cases of HIV transmission during sexual activity; hiding one’s HIV status invalidates consent and attracts criminal liability, shaping subsequent case law and health education regarding sexual relationships and disclosure obligations.

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