HIV+ Airman Acquitted of Aggravated Assault for Exposing Partners

WICHITA, KS—Congrats, armed services personnel: Thanks to the U.S. military's highest court, being HIV-positive and failing to inform your partners of that fact before you have sex with them is no longer "aggravated assault" under the Uniform Code of Military Justice! In a case whose decision was revealed yesterday, David J.A. Gutierrez, a Technical Sergeant for the U.S. Air Force, had his conviction for aggravated sexual assault overturned by the U.S. Court of Appeals for the Armed Forces, though it found him guilty of the lesser included offense of "assault consummated by battery." According to the opinion, Gutierrez and his wife were swingers, but while Gutierrez was stationed in Italy in 2007, he was diagnosed with having contracted the  HIV virus, and was ordered by his commanding officer to, among other things, "verbally inform sexual partners that [he is] HIV positive" and to "use proper methods to prevent the transfer of body fluids during sexual relations, including the use of condoms providing an adequate barrier for HIV (e.g. latex)." Gutierrez failed to obey either order, and in fact actually misinformed at least two sexual partners, who testified at his trial, as to his HIV status. Those partners, both swingers themselves, came across a document revealing Gutierrez's HIV status and informed some other members of the swinging community. The information also came to the attention of the Air Force Office of Special Investigations (AFOSI), which questioned Gutierrez's wife about their swinging activities, and eventually recommended that Gutierrez be charged with aggravated assault. Trouble is, the government's medical expert, Dr. Donna Sweet, testified at trial that while having oral or vaginal sex while wearing a condom posed virtually no threat, nor did non-condomized oral sex, she was less than explicit about vaginal sex without a condom. "It's difficult to have a lot of evidence" of HIV transmission," Dr. Sweet testified. "But the quote is that it is somewhere between 10 and 20 positives per 10,000 encounters. That's sort of the high-end. There are other people that would say 1 out of 10,000 to 1 out of 100,000 given encounters. ... [I]f you [have sex] two or three nights a week then you’ve got a lot of exposure even though it's a relatively low risk.... But somewhere between 1 and 10 per 10,000 exposures would become infected." Based on that testimony, the appeals panel decided that since the expert had put the chances of HIV transmission during any single encounter at 1-in-10,000 to 1-in-100,000, it decided that even if they accepted the prosecution's estimate of the risk of 1-in-500, that level of HIV exposure did not meet the standard under the Uniform Code of Military Justice (UCMJ), which requires that the assault be committed with "a dangerous weapon or other means or force likely to produce death or grievous bodily harm." [Emphasis added] It's that "likely" that led the Court of Appeals to vacate the aggravated assault conviction—and in the process, to overrule two precedential cases. In the first, United States v. Joseph, the appeals court in 1993 found that, "the question is not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body. The probability of infection need only be more than merely a fanciful, speculative, or remote possibility." The current court found that that standard had only been applied to HIV cases, with "likely" needing a greater probability of injury occurring than the facts here represent. The second overturned case is United States v. Klauck, where the appeals panel in 1997 concluded that "[t]he fact that a male uses a condom during sexual intercourse is not a defense to [aggravated] assault." Again, the panel credited Dr. Sweet's testimony that transmission though a condom was extremely unlikely, thus finding that the Klauck court's finding of guilt could not be sustained. "[W]e conclude that HIV transmission is not the likely consequence of unprotected vaginal sex," the appeals panel stated. "This is so because, in law, as in plain English, an event is not 'likely' to occur when there is a 1-in-500 chance of occurrence. As a result, Appellant’s conviction for aggravated assault by engaging in unprotected vaginal sex is legally insufficient." What the court did convict Gutierrez of is the lesser included offense of "assault consummated by battery," ruling that under the UCMJ, Gutierrez had committed "bodily harm" on his sex partners, that term being defined as "any offensive touching of another, however slight," with the court noting that "Appellant's conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent."  The ruling "effectively ended the prosecution of cases in the military that allege the likelihood of grievous injury merely upon the diagnosis that a service member has been diagnosed with Human Immunodeficiency Virus (HIV) and who engages in intercourse without their partner's knowledge of HIV determination," analyzed attorney Kevin McDermott.  "It's not just a technicality; they actually overturned two prior court precedents that supported these prosecutions." The Court of Appeals decision can be found here.