R v Konzani [2005] EWCA Crim 706 dealt with the issue of consent to the risk of HIV infection and its implications under Section 20 of the Offences Against the Person Act 1861 (OAPA).
Konzani, the defendant, was aware of his HIV-positive status and the associated risk to his sexual partners. However, he engaged in sexual relations with three women who were unaware of his HIV status. Konzani was subsequently convicted under Section 20 of the OAPA.
Upon appeal, Konzani argued that the women had consented to the risk of HIV by participating in unprotected sex, or alternatively, that he had an honest but unreasonable belief that they were aware of his HIV status.
The Court of Appeal dismissed the appeal, affirming the safety of the conviction. Judge LJ, in delivering the judgment, emphasised that for consent to the risk of HIV infection to be a valid defence, it must be informed. The court held that concealment of the HIV-positive condition would prevent the existence of informed consent.
The judgment also acknowledged that, in certain circumstances, informed consent might still be present even in cases of recklessness and concealment. This could occur when the victim learns about the condition from other sources, such as friends, or when they enter a relationship in a hospital setting where the defendant was treated for HIV.
The court further clarified that an honest belief by the defendant in the consent of the victim could be a valid defence, but in this specific case, there was no evidence supporting such a belief.
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