The harm Feston Konzani caused his lovers
was in every way grievous, but this does not make him a criminal, argues
Bruce Wainwright
He's black, an asylum seeker and has a gay, white lover
in the diplomatic service. He's HIV positive and has infected four women.
If the BNP had written the story, the details would hardly have been more
baroque. The tabloids, of course, love it: "HIV Monster caged for ten years,"
stormed The Mirror. The man in question is, 28-year-old Feston Konzani, convicted
at Teesside crown court in May of grievous bodily harm, although his barrister,
Tim Roberts QC, argued that under the law, he had not actually done anything
wrong. Roberts argued that to have unprotected sex with a woman without disclosing
a sexual disease is not yet illegal. But the jury took just three hours to
disagree, and convicted Konzani on three charges. Judge Peter Fox sentenced
Konzani to a total of 10 years in prison, followed by deportation. That Konzani
harmed his victims, and that this harm was in every way grievous, there can
be little doubt. Whether his conviction was sound in law will, however, be
decided in any subsequent appeal. But the case does raise issues we might
profitably examine here.
"Hearing and telling lies is part of the human condition: regrettable, but a fact of life"
The defence rested, in essence, on the same belief advanced by the Terrence Higgins Trust: "You have no right to know, and I have no duty to tell." It is a clear and simple dictum which I have always been prepared to use myself. It, in effect, shares responsibility for transmission from the positive person to both people involved.
"You have no right to assume anything about me, and I have no responsibility to tell you what my medical condition might be." Everyone engaging in sexual activity has a responsibility for protecting themselves, and that responsibility cannot be shuffled off onto the person who is positive.
Of course, if I ask my partner: "Are you positive?" and the response is a lie, who is then to blame? Clearly, some moral responsibility lies with the person telling the lie; but hearing and telling lies is part of the human condition: regrettable, but a fact of life. In the end, it comes down to how far you are prepared to trust what your partner tells you; and, short of swearing an affidavit in front of a solicitor prior to every sexual encounter, I see no real way around this one - certainly no legislative way. On the other hand, if I believe my partner to be ignorant, stupid, or both, should I not warn him of the risks? I'm sure I have some responsibility to do so. But consumed with lust and a Class A substances, am I in a position to even take responsibility for myself - let alone anyone else? Nevertheless, if I fail to give due warning and deny my partner an informed choice, am I then guilty of committing GBH?
Judge Fox, in his guidance to the jury stated: "The acid test is: If a little bird had whispered in her ear as she was about to have unprotected sex with Feston Konzani: 'Would you be doing this if you knew he was HIV infected and what that meant', would she reply: 'No I wouldn't' or would she reply: 'It does not matter, I'll be all right?' If it's the former you have to find him guilty, if it's the latter you must find him not guilty." If only life were that simple.
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