An HIV-positive airman court-martialed in North Carolina after engaging in unprotected sexual activity seemed to fare well Tuesday as the nation’s highest military appeals court considered a motion to toughen the charges against him.
Through their questions, comments and occasional silences, U.S. Court of Appeals for the Armed Forces judges sounded sympathetic to enlisted man Gavin B. Atchak. The result could be a shorter rap sheet for him, and, perhaps, a little more legal clarity for other HIV-positive troops.
“The only way you win,” Judge Scott W. Stucky told the government’s lawyer, who wants Atchak to face another hearing and possibly new charges, “is if we break with our precedent.”
Stucky, a Hutchinson, Kansas, native and retired Air Force colonel appointed to the court by President George W. Bush, repeatedly raised pointed questions about the case against Atchak, including whether the necessary elements of an offense were present.
“They ain’t there,” Stucky said.
Atchak’s case is part of the fallout from the court’s groundbreaking 2015 decision changing the basis under which an HIV-positive service member can be convicted of aggravated assault for having unprotected sex with another.
In that decision, which involved an HIV-positive enlisted man at McConnell Air Force Base in Wichita, Kansas, named David Gutierrez, the court ruled that the proper test for an aggravated assault conviction was not whether AIDS, once contracted, would probably kill or injure, but whether the sexual act itself was likely to result in HIV transmission.
The ruling and its timing changed the legal circumstances for Atchak, who was formerly based at Seymour Johnson Air Force Base near Goldsboro, North Carolina.
Diagnosed as HIV-positive in 2011, Atchak subsequently engaged in unprotected oral and anal sex with two fellow airmen, at least one of whom he informed about his diagnosis. At a subsequent court-martial in 2013, he pleaded guilty to aggravated assault.
Citing the Gutierrez decision, however, the Air Force Court of Criminal Appeals last August dismissed Atchak’s aggravated assault pleas. The Air Force panel noted that the Centers for Disease Control and Prevention says, “HIV transmission through oral sex has been documented, but rare,” while the risk of transmission from unprotected anal sex is estimated at 1 in 200.
The government’s appeal on Tuesday of that dismissal was the first involving the conviction of an HIV-positive member of the military to reach the top appeals court since the Gutierrez decision.
Does this get us into the morass of when someone can consent while drunk?
Judge Scott W. Stucky of the U.S. Court of Appeals for the Armed Forces
“The court overturned the aggravated assault (conviction) because it was legally insufficient,” Atchak’s appellate attorney, Air Force Capt. Michael A. Schrama, said Tuesday.
The decision cut Atchak’s prison sentence to eight months from 36, though his convictions remained on other charges. The government appealed, hoping for a conviction on lesser charges of assault consummated by a battery. Consent can be a defense against this lesser charge.
One of the arcane but crucial questions facing judges Tuesday was whether the Air Force’s lower appellate court had exceeded its authority in simply dismissing the aggravated assault charges on its own.
The court “should have authorized a rehearing,” the government’s attorney, Air Force Capt. J. Ronald Steelman III, said Tuesday.
But Judge Kevin A. Ohlson asked pointedly, “How is this an abuse of discretion?” Stucky added that the lower court had “the right to determine if a rehearing is proper.” In another potential sign of their inclinations, the judges hammered Steelman with far more questions than they did Schrama.
Atchak has served his sentence and is still in the Air Force while he awaits the outcome of the government’s appeal. If he wins, he will finally be processed out with a bad conduct discharge.