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

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.

‘The over-criminalization of HIV non-disclosure discourages many individuals from being tested and seeking treatment.’
– Jody Wilson-Raybould

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 Mar. 1 decision that includes the details of her story.

“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 Wilson-Raybould 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.

‘I recognize that it’s difficult, but I think it’s important to draw some lines into when the criminal law is actually warranted and not warranted.’
– Cecile Kazatchkine

The justice department did not make anyone available for an interview, but spokesman Ian McLeod said in an email that preliminary discussions are underway.

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.

This relatively high number of prosecutions — and the fact that the issue is criminalized at all — has brought Canada under scrutiny on the world stage.

‘The only time you see HIV, practically, is when someone’s picture is on the paper, being charged . . . with aggravated sexual assault.’
– Cynthia Fromstein

In July, Justice Edwin Cameron of the Constitutional Court of South Africa shamed Canada — alongside Zimbabwe — for its approach to the issue in his keynote address at the International AIDS Conference in Durban.

“I ask all Canadians to share the blame — not just us in Africa,” he said to resounding applause.

Canadian Health Minister Jane Philpott was in the room.

The changes the Liberal government ends up proposing will likely face some opposition over the ethical challenges surrounding the issues of disclosure in intimate relationships.

“I recognize that it’s difficult, but I think it’s important to draw some lines into when the criminal law is actually warranted and not warranted,” said Cecile Kazatchkine, a senior policy analyst with the Canadian HIV/AIDS Legal Network.

The United Nations Programme on HIV/AIDS (UNAIDS) has recommended prosecuting only those people who knowingly and intentionally transmit the virus to their partners, rather than simply not disclosing it, which some advocates say is not always possible, such as in abusive relationships.

Cynthia Fromstein, a Toronto-based defence lawyer who has represented clients facing HIV disclosure-related charges, said there is still “enormous” ignorance and fear surrounding HIV, which is only made worse by the current laws.

“The only time you see HIV, practically, is when someone’s picture is on the paper, being charged . . . with aggravated sexual assault,” said Fromstein.