Court upholds sexual assault conviction of woman with HIV who had unprotected sex

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This article was published 06/07/2017 (3046 days ago), so information in it may no longer be current.

Manitoba’s appeal court has rejected an HIV-positive woman’s bid to have her sexual assault conviction overturned after she failed to tell her partner she was infected with the virus.

Marjorie Schenkels was sentenced to two years less a day in jail after a jury convicted her of aggravated sexual assault by endangering life after she had unprotected sex three times with a friend who didn’t know she was HIV-positive. He tested positive for the virus shortly afterward.

Schenkels was found guilty after a five-day jury trial in December 2014 and was sentenced in March 2016. Her appeal was heard in January, and the appeal court released its decision this week.

On appeal, Schenkels argued there was no proof she transmitted HIV to the victim, and that if she hadn’t, she didn’t endanger his life. She argued the jury should have been told the Crown had to prove beyond a reasonable doubt the victim didn’t contract HIV from another source.

The Court of Appeal disagreed, ruling any properly instructed jury could reasonably have convicted Schenkels.

Court of Appeal Justice Barbara Hamilton, writing for the panel of judges, said there was no evidence before the court about other possible ways the victim could have contracted HIV.

“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,” states the written decision, issued this week.

During the 2014 trial, court heard the victim had not previously been tested for HIV. He was diagnosed in December 2011, shortly after his last encounter with the accused. Schenkels had been diagnosed in 2009, and her doctors testified she had been warned about the importance of safe sex and failing to disclose her condition to a sexual partner could be a criminal offence.

Defence lawyer Ian Histed also argued the conviction should be thrown out because of unreasonable delay in bringing the case to trial.

It took 30 months and 19 days for the case to wrap up, slightly more than the 30-month deadline that would later be imposed by the Supreme Court for superior court trials. The Crown had authorized a direct indictment in the case, skipping a preliminary inquiry and heading straight to trial. Because there was no preliminary hearing, the defence argued, the case should be subject to even stricter timelines.

Although the jury trial happened before the Supreme Court set new trial deadlines that came into effect last July, Histed argued the case should have been bound by the 18-month deadline that was imposed for provincial court trials even though it took place in the superior Court of Queen’s Bench.

The Court of Appeal refused to throw out the conviction because of delay. It ruled that whether or not there was a preliminary inquiry, the case would still be subject to the 30-month deadline because it was dealt with in the Court of Queen’s Bench. The fact it missed the deadline by 19 days didn’t matter, the court decided, because it was already working its way through the justice system by the time the new deadlines were imposed.

Schenkels was the first woman in Manitoba to be convicted of sexual assault on the basis of failing to disclose her HIV status. As part of her conviction, she will be listed on the sex offender registry for 10 years.

katie.may@freepress.mb.ca

Twitter: @thatkatiemay