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No preliminary hearing for woman accused of giving HIV to partner

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Justice officials have taken the unusual step of ordering the case of a woman suspected of passing HIV to a sexual partner straight to trial.

Manitoba Justice has authorized a direct criminal indictment against Marjorie Schenkels, 26, on a charge of aggravated sexual assault by endangerment of life.

The direct indictment means Schenkels will not have a preliminary inquiry in provincial court to test the Crown's evidence, a key hearing in sexual assault cases.

Assistant deputy attorney general and prosecutions head Michael Mahon as well as Deputy Justice Minister Donna Miller signed off on the measure.

Schenkels made a first personal appearance in Court of Queen's Bench on Sept. 3. No trial date has been set.

The Winnipeg woman was arrested In May 2012 following a four-month police investigation initiated after a man filed a complaint with the RCMP detachment in Gimli.

RCMP did not disclose his name, age, nor where the alleged offence took place, citing health-privacy legal concerns.

The man complained he believed he had contracted HIV after having sexual intercourse with a woman, RCMP said. The man said after having sex with the woman, he began feeling ill, sought medical attention and learned he had contracted HIV.

The reason for the use of the direct indictment in Schenkels's case is unknown, as is whether either she or her defence lawyer were allowed to make submissions to the justice department before it moved ahead.

Manitoba Justice's policy on direct indictments states the procedure is to be viewed as an "extraordinary step" and to only be used in "exceptional circumstances."

Among the relevant considerations are witness safety and whether the "age, health or other circumstances relating to witnesses requires their evidence to be presented before the trial court as soon as possible," the policy states.

While three men in Winnipeg have been charged with transmitting HIV to a sexual partner, Schenkels is the first Manitoba woman to face such a charge. Schenkels remains free on bail with the consent of the Crown and is subject to several conditions.

The Supreme Court ruled in the late '90s an individual can be charged with aggravated sexual assault if they have HIV and engage in consensual sex that poses a significant risk of transmission of the virus without first disclosing they have the virus to their sexual partner.

Manitoba's most infamous HIV-assault case involved Clato Mabior, whose case went all the way to the Supreme Court. The HIV-positive man was convicted in 2008 of aggravated assault for having sex with six women without disclosing his HIV status. None of Mabior’s partners contracted HIV.

In 2010, Mabior was acquitted of four of the charges on appeal. The Manitoba Court of Appeal ruled if an HIV-positive person wears a condom or has a low viral load and, therefore, a low risk of transmitting the virus, sex does not pose a risk of serious bodily harm.

He was deported to Sudan in 2012, before the Supreme Court ruled in his case. The top court ultimately ruled in a similar fashion to the Manitoba appeals court.

HIV is the virus that causes AIDS, a condition that leads to the failure of the body’s immune system. The most common form of transmission is through unprotected sex, but the risk of female-to-male transmission is considered far lower than male-to-female transmission.

 

james.turner@freepress.mb.ca

With Free Press, Canadian Press files

History

Updated on Monday, September 16, 2013 at 11:14 AM CDT: Corrects spelling of Schenkels.

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