An HIV-positive woman is appealing her conviction for aggravated sexual assault, after she had unprotected sex with a man three times and failed to disclose her positive status to him out of fear.

Marjorie Schenkels was found guilty in December 2014, and was back in court to appeal her conviction Tuesday.



The man she had sex with tested positive in December 2011.

"A person who has unprotected sex with somebody they barely know shouldn't really be able to complain that they got a sexually transmitted infection from them," her lawyer, Ian Histed, said following her appeal hearing Tuesday.

He said what happened between his client and the man was not a sexual assault. "The complainant confirmed in evidence that [Schenkels] never did anything more than let him touch her."

Ian Histed acted as Marjorie Schenkels's lawyer during her trial for aggravated sexual assault, and is now acting for her in her appeal. (CBC) Schenkels was sentenced in March 2016 to two years in prison less a day. She is now also a registered sex offender. Histed said she spent two days in jail and was released on bail pending appeal.

Histed said his client is appealing because the Crown didn't provide sufficient evidence that the man was HIV-negative before having sex with her.

"As a result of that [the man] was never in any danger from sexual intercourse with the accused," he said.



The Crown argued that proving the complainant's previous HIV status wasn't its job.

"It would be impossible," said Manoja Moorthy, who was one of the Crown prosecutors during the trial.

She argued that the Crown's 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," she said, saying the man did not inject drugs and there was no evidence to suggest he was having sexual relations with anyone else during that time.

The panel of three Court of Appeal judges reserved their decision for a later date.