HIV-disclosure requirement reviewed by justice minister

OTTAWA — Marjorie Schenkels had unprotected sex three times with a friend, while they both had been drinking, as she was going through a difficult and volatile time in her life.

The Manitoba woman was also living with HIV — a diagnosis she had told only her mother about — and feared she would lose her friends if they, including the man she was having sex with, found out.

She also did not tell the man she had sex with those three times, and he also later tested positive for HIV, although the question of where he contracted it is a matter of contention.

A jury convicted Schenkels of aggravated sexual assault in December 2014.

She did not lie, or manipulate or exploit, the sentencing judge from the Court of Queen’s Bench of Manitoba wrote in the March 1 decision.

“Rather, her silence was the result of fear and inability to accept the gravity of her situation,” the judge wrote as she sentenced Schenkels, who is now also a registered sex offender, to two years in prison less a day.

Schenkels is appealing her conviction, with arguments being heard Jan. 10.

There is no particular provision in the Criminal Code regarding the disclosure of HIV status, but there are certain circumstances in which failing to do so is a crime.

That can include having consensual sex — something the Liberal government is now open to changing.

“The over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment, and further stigmatizes those living with HIV or AIDS,” Justice Minister Jody Wilson-Raybould said in a statement published online Dec. 1, which was World AIDS Day.

“Just as treatment has progressed, the criminal justice system must adapt to better reflect the current scientific evidence on the realities of this disease,” she wrote.

The statement said WilsonRaybould would be taking a closer look at how the criminal justice system deals with non-disclosure of HIV status, which could include reviewing current practices on laying charges and going ahead with prosecutions, as well as developing prosecutorial guidelines.