The nation’s highest military court has forged new law by reversing the conviction of a former enlisted man at McConnell Air Force Base in Wichita, Kan., who was charged with aggravated assault for not telling his sexual partners he was HIV-positive.
The unanimous ruling by the U.S. Court of Appeals for the Armed Forces will lighten the sentence for former Air Force Tech. Sgt. David J.A. Gutierrez. More broadly, it could limit other military prosecutions built around the sexual activities of HIV-positive soldiers, sailors, airmen and Marines.
The odds of contracting HIV through unprotected vaginal intercourse are too low to meet the legal requirements for an aggravated assault conviction, the military court’s five judges agreed.
“The question in this case is not whether HIV, if contracted, is likely to inflict grievous bodily harm,” Chief Judge James E. Baker wrote in the decision issued Monday. “The critical question . . . is whether exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous bodily harm.”
Citing scientific testimony, the military court concluded that a person engaged in unprotected vaginal intercourse with an HIV-positive partner has, at most, a 1-in-500 chance of contracting the disease.
The court’s ruling explicitly overturned the precedent set in a 1990 decision involving an enlisted man at what was then called McChord Air Force Base in Washington state, now known as Joint Base Lewis-McChord. The 1990 case, involving unprotected gay sex, had identified “the likelihood of the virus causing death or serious bodily harm” as the key question, rather than the likelihood of getting infected in the first place.
“It is a game-changer for military cases and HIV testing,” Kevin Barry McDermott, Gutierrez’s civilian defense attorney, said Tuesday of the latest ruling. “I doubt that we will ever see another HIV aggravated assault anytime in the future.”
McDermott added in an email that “no medical expert will ever opine that within a medical reasonable certainty . . . HIV has a great likelihood of heterosexual transmission.”
Catherine Hanssens, executive director of the Center for HIV Law and Policy, said in an interview Tuesday that at least part of the decision was “an important sign of progress” that should be “read and taken seriously” by civilian as well as military courts.
Gutierrez is a maintenance specialist in his mid-40s with more than 20 years of service.
A follower of what Baker termed the “swingers’ lifestyle,” Gutierrez tested positive for HIV in 2007, according to the court. His commanding officer ordered him to refrain from unprotected sexual intercourse and to inform his partners of his HIV status.
Nonetheless, defense attorneys said in a legal brief, Gutierrez and his wife continued to meet fellow swingers and to “participate in sexual conduct throughout various locations in Kansas” from January 2009 through early August 2010. Prosecutors identified seven women as Gutierrez’s partners during that time.
“All but one of (Gutierrez’s) victims in this case testified that they would not have had sex with (Gutierrez) had they known that he was HIV positive,” Air Force attorneys wrote in a brief.
McDermott said Tuesday that “our experts are of the opinion that David does not have HIV.” Gutierrez submitted evidence to that effect, but the military appeals court did not consider it.
Gutierrez’s court-martial on the aggravated assault charge in January 2011 at McConnell Air Force Base, home to the 22nd Air Refueling Wing, required prosecutors to prove several elements. One is that the sexual activity – the “assault” – was deemed likely to produce death or grievous bodily harm.
In overturning the conviction, the appellate court cited testimony that in unprotected oral sex, the risk of HIV transmission is “almost zero.” HIV transmission through protected vaginal sex is only “remotely possible,” the court said, while even the 1-in-500 chance of transmission through unprotected vaginal sex was deemed to be at the “high end” of probabilities.
“In law, as in plain English, an event is not likely to occur when there is a 1-in-500 chance of occurrence,” Baker wrote.
The appellate court upheld Gutierrez’s conviction on assault consummated by a battery. This lesser charge required only that his sexual activity with partners he hadn’t told about his HIV status amounted to “offensive touching to which his sexual partners did not provide meaningful informed consent.”
In a move called “curious” by Hanssens and “astonishing” by military law blogger Zachary D. Spilman, author of Blog-CAAFlog, the court cited only a Canadian court decision for support of the potentially far-reaching conclusion that lack of knowledge equals lack of true consent.
Gutierrez is serving an eight-year sentence at the U.S. Disciplinary Barracks at Fort Leavenworth, Kan. His sentence will now be adjusted.