Reversing the conviction of an HIV-positive serviceman on charges of aggravated assault for engaging in unprotected oral and vaginal sex with women during swingers’ parties, the US Court of Appeals for the Armed Forces ruled unanimously on February 23 that the statistical likelihood of transmitting HIV under such circumstances would not support a conviction under the Uniform Code of Military Justice. Aggravated assault is defined under the UCMJ as “assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm.”
The ruling from the nation’s highest military court came in David Gutierrez's appeal of his 2011 conviction, when he was serving as an Air Force sergeant in Wichita.
The decision overturns an earlier finding from that court, dating to 1993, that held 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 court bowed to criticism of its prior reasoning, agreeing on reconsideration that if transmission is highly unlikely as a statistical matter, then it cannot be said that the defendant acted in way that was “likely to produce death or grievous bodily harm.” As a result, any sexual activity using condoms could not constitute aggravated assault, given their very high rate of effectiveness in preventing transmission, and even unprotected oral or vaginal sex would not qualify, based on evidence that transmission is highly unlikely under those circumstances, as well. No accusation was ever made that Gutierrez infected any of his sex partners.
On the other hand, the court held that Gutierrez was guilty of simple assault charges against him, since the women involved testified they would not have consented to unprotected sex with him had they known he was HIV-positive. Their consent in the circumstances was ineffective, the court found, and the defendant was guilty of non-consensual touching that would be offensive to a reasonable person.
Gutierrez’s conviction on charges of adultery, illegal in the military, was also upheld, even though his wife joined him at the swingers’ parties.
In 2011, Gutierrez was sentenced to eight years in prison and was stripped of his rank. His case has now been sent back to a lower court to determine what adjustments to his sentence are appropriate.
This ruling raises important issues outside the military context, since some civilian courts have also imposed severe penalties on HIV-positive defendants in comparable situations, using much the same reasoning the military court applied back in 1993. In the past few years, however, courts have started to become much more responsive to the developing knowledge about transmission risks, especially when HIV-positive people are using condoms or are compliant with anti-retroviral therapy and have an undetectable viral load.
As far as the court’s decision spells out, the military swingers’ club Gutierrez participated in did not involve same-sex conduct or anal sex. It will be interesting to see whether the military courts will be consistent in their reasoning if presented with cases involving gay service members who credibly testify that they are compliant with treatment regimens that have sharply reduced their infectiousness to the vanishing point.