Woman convicted of sexual assault in HIV-disclosure case appeals to Supreme Court

A Manitoba woman convicted of aggravated sexual assault and sent to jail for not telling a sex partner she had HIV is hoping to bring an appeal of her controversial case to the Supreme Court of Canada.

Marjorie Schenkels has filed an appeal application with Canada's top court just a few weeks after Manitoba's Court of Appeal refused to grant her a new trial.

The provincial appeals court did agree on Thursday, however, to grant Schenkels bail from the Women's Correctional Centre near Headingley, pending a decision by the Supreme Court on whether it will hear her case.

Schenkels was convicted by a jury and sentenced in 2016 to two years less a day in jail plus probation to follow. 

She had unprotected sex with a friend three times and didn't tell him of her medical status out of fear. The man she had sex with tested positive for HIV in 2011. Schenkels didn't concede during her trial that she'd infected him.

• HIV-positive woman appeals aggravated sexual assault conviction

• Advocates hopeful Canada will stop criminalizing non-disclosure of HIV status

Her provincial appeal was mainly fought on two grounds — that her rights were breached because her case took so long to get to trial, and that the Crown failed to prove beyond a reasonable doubt the victim was HIV-negative before he and Schenkels had unprotected sex.

The Crown argued its job was to prove beyond a reasonable doubt that Schenkels could have infected the complainant.

"There was no evidence presented to the court that HIV could have been transmitted any other way," prosecutors said. The victim did not inject drugs and there was no evidence to suggest he was having sexual relations with anyone else during that time, said the Crown.

The Manitoba appeals court agreed.

"The weakness of the defence theory is that there was no evidence as to other possible ways in which the complainant could have contracted HIV," Justice Barbara Hamilton wrote in a 42-page decision released June 29.

"Without such evidence, the accused was asking the jury, and now this court, to speculate. She is asking this court to focus on hypothetical alternative theories that have no basis in the evidence."

The court also dismissed her argument the case took too long to be heard. 

Supreme Court has ruled on HIV-assault cases in past

The Supreme Court of Canada has ruled that the consent someone gives to engaging in sexual activity can be considered null and void if the accused person failed to disclose, or lied about, his or her HIV status.

The Crown must also prove the person would not have consented to sex if he or she had been aware of the HIV status.

That can lead to a charge of aggravated sexual assault — the most commonly applied, although there have been others — so long as the sexual contact has either transmitted the virus to the complainant, or put them at significant risk of contracting it.

The high court clarified in 2012 that this would not apply if someone is using a condom and also has a "low viral load," but advocates argue the law has fallen far behind the science and creates more problems than it attempts to solve.

The fact that HIV non-disclosure falls under aggravated sexual assault or other offences makes statistics harder to come by than they are for other crimes, but the Canadian HIV/AIDS Legal Network has counted at least 180 people charged for offences related to HIV non-disclosure in Canada since 1989.

No date has been set for the court to rule on whether it will hear Schenkels' appeal.