HIV-positive status to factor into Regina rapist's sentence, but not criminal charge
Crown prosecutor argues that the victim's fear of contracting HIV was real, even if the actual risk wasn't
A Regina woman who was choked unconscious and brutally raped by an HIV-positive stranger in a downtown back alley in May 2015 suffered months of anxiety over whether she had contracted the virus.
The risk of transmission turned out to be nearly zero, forcing the Crown to reconsider its criminal charge. But the prosecutor has since argued that the victim's fear should still be considered when a Regina judge sentences Kenton Desjarlais, 26, Monday afternoon.
I felt my body shut down limb by limb, muscle by muscle...- Victim impact statement
"Initially, it was believed to be what made the sexual assault an 'aggravated' sexual assault," senior Crown prosecutor Chris White said.
However, evidence from an infectious disease specialist at the preliminary hearing revealed that Desjarlais was taking antiretroviral drugs regularly. The drugs suppressed his virus to a low enough level that transmission was nearly impossible, and thus his HIV-positive status couldn't endanger the woman's life.
Desjarlais was still convicted of aggravated sexual assault, but because he choked the victim.
White asked for a minimum 12-year sentence, and argued that the victim's fear of contracting HIV was real, although the actual risk was not.
"However low the risk is, the anxiety for the victim when she found out that this individual was in fact HIV-positive, is an aggravating factor," White told CBC News.
'A terrified fighter'
On May 16, 2015, the 28-year old victim was on her way home around 12:45 a.m. after socializing with friends at a downtown pub. A male friend accompanied her until she was a half block from her apartment, not far from Hotel Saskatchewan.
As she cut through a back alley, Desjarlais rode his bicycle alongside her and started making lewd comments and touching her.
The well-educated, ambitious young woman described in her victim impact statement how she felt fear like never before. Previously "a happy, confident, independent, strong, easy-going woman," that night she turned into "a terrified fighter."
When Desjarlais tackled her in front of a dumpster, she gouged his eyes and scratched his face — but he choked her unconscious.
The risk of transmission is very, very close to zero, if not zero altogether. - Dr. Alex Wong, infectious diseases specialist
In her victim impact statement, she said, "I felt like I was leaving this earth forever."
"I felt my body shut down limb by limb, muscle by muscle … my voice, my lips, my eyelids … then my mind."
When she came to, her pants and underwear were pushed down, and Desjarlais had forcibly penetrated her.
The victim eventually escaped. After Desjarlais was arrested, and she learned that he was HIV-positive, she faced four weeks of potent post-exposure antiretroviral drugs and six months of anxiety while she waited for negative test results.
As it turned out, Desjarlais was routinely taking antiretroviral drugs, at least 90 per cent of the time. The virus was essentially undetectable in his blood.
Dr. Alex Wong, an infectious diseases specialist in Regina, told CBC news people often wrongfully assume that HIV-transmission is automatic.
"For people who are HIV-positive who are responsible, i.e. taking medications and fully-suppressed, I do think we need to be mindful of the fact the risk of transmission is very, very close to zero, if not zero altogether."
Medical advances and the justice system
Most of the HIV-related prosecutions in Canada involve sexual relationships that were considered consensual at the time, but that led to prosecution because the HIV-positive partner failed to disclose his or her status.
In 2012, the Supreme Court clarified that people with low-level HIV who also use condoms during sex cannot be charged with aggravated sexual assault for nondisclosure.
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HIV activists opposed that criteria as too stringent, arguing that with medical advances that reduce transmission risk, it's not necessary to have both a low viral load and wear a condom.
"Adding a condom to that equation really negligibly changes the risk, because the risk to begin with is approaching zero or basically zero," said Dr. Wong.
Wong says it's significant that prosecutors in this case recognized that medical advances had reduced transmission risk, despite the lack of condom use, to the point an aggravated sexual assault charge wasn't justified for that reason.
Perception of risk vs. real risk
At the sentencing hearing in May, both the Crown and Defence recognized that the victim's fear of transmission could be considered an aggravating factor in the sentence.
In her victim impact statement, she said that she suffered months of uncertainty alone, unwilling to burden her friends and family with the "HIV scare" until she found out she was negative.
The woman said she also has trouble leaving the house and fears strangers.
She said that when her rapist is released from prison, she will be forced to relocate to another city.
"If I don't, I know I will become a recluse and the cycle of fear and depression will begin all over again," the woman told the court.
'I am not a monster'
Desjarlais' sentencing was delayed three weeks to July 24 to allow Justice Brian Barrington-Foote time to review a Gladue Report, a special pre-sentencing hearing into an Indigenous perpetrator's background.
He has a long criminal record, although no previous sexual assaults, dating back to when he was 12.
At the last court appearance, Desjarlais apologized and said: "Despite what I've done I am not a bad person. I am not a monster."
The Defence is asking for a five-year prison sentence.
The Crown has argued that other aggravating factors include the brutality of the assault, and the fact it was a random attack that "sent a chill through the city."