Gavin B. Atchak’s commanding officer at Seymour Johnson Air Force Base in North Carolina ordered him to avoid unprotected sex after Atchak tested positive for HIV in 2011.
The officer also directed Atchak, an enlisted man in the Air Force security forces, to inform future sex partners that he carried the virus that can cause AIDS.
Atchak disobeyed and engaged in unprotected oral and anal sex with fellow airmen. At a subsequent court-martial, he pleaded guilty to aggravated assault. Then the ground shifted.
Now Atchak and others, including a former South Carolina-based airman, are caught amid changing times, as military prosecutors and defense lawyers alike sort through the evolving legal guidelines applicable to sexual activity among HIV-positive troops.
While some 34 states have adopted criminal laws related to exposure to HIV, Congress has not done the same for the Uniform Code of Military Justice.
Like in any other aggravated assault case, the question is whether grievous bodily harm was the likely consequence of the (defendant’s) sexual activity.
U.S. Air Force Court of Criminal Appeals
Next month, the nation’s highest military court will review Atchak’s case. And next week, the Air Force’s top appeals court will review a separate court-martial conviction involving an HIV-positive airman from South Carolina’s Shaw Air Force Base named Adolphus A. Young III.
The Atchak and Young cases differ in several respects. Both, though, represent fallout from a groundbreaking 2015 decision by the U.S. Court of Appeals for the Armed Forces that involved an HIV-positive enlisted man at McConnell Air Force Base in Wichita, Kansas, named David Gutierrez.
“Gutierrez was pivotal for HIV-positive service members, as it is the first case to begin to accept, small as it may be, the truth surrounding HIV risk, transmission and exposure,” Ken Pinkela, military and federal projects director for the SERO Project, a network of people with HIV and their allies, said Thursday.
The results of these follow-up cases will, in turn, shape the military legal landscape as well as individual fates for years to come. Pinkela, a former Army lieutenant colonel and a combat veteran, already had his aggravated assault conviction reversed last November because of the Gutierrez ruling.
Up until the decision in United States v. Gutierrez, military courts had determined that AIDS’ presumed lethality meant an HIV-positive individual could be convicted of aggravated assault simply for not telling partners of their viral status.
In the Gutierrez decision, though, appellate judges concluded 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.
“For a number of reasons, it was a pretty big deal,” Pepis Rodriguez, a program director for the Center for HIV Law and Policy, said of the Gutierrez decision Thursday. “The court acknowledged that HIV transmission is pretty highly unlikely for a number of acts.”
Now Air Force Capt. Michael Schrama, an appellate attorney for Atchak and Young, said Thursday, “We’re challenging what Gutierrez actually means.”
The ruling occurred after Atchak had pleaded guilty to aggravated assault in 2013 but before the Air Force Court of Criminal Appeals reviewed his case. Citing the intervening Gutierrez decision, the Air Force appellate panel last August dismissed Atchak’s aggravated assault charges.
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.
“A risk of ‘almost zero’ or a risk that is only ‘remotely possible’ is not sufficient to sustain an aggravated assault conviction,” the Air Force court reasoned.
The decision cut Atchak’s prison sentence to eight months from 36. The government appealed, hoping for a conviction on lesser charges of assault consummated by a battery.
“Through no fault of the United States, the aggravated assault specifications were set aside and the hard-fought sentence was reduced on appeal,” Air Force Capt. James R. Steelman wrote in the government’s brief.
Defense attorneys counter that a rehearing on modified charges would subject Atchak to double jeopardy.
“An aggravated assault conviction could not legally be affirmed based on Gutierrez, and the government forfeited their right to a rehearing by their inaction at trial,” Schrama wrote in a defense brief.
The notion of assault consummated by a battery is also at the heart of the case involving Young, which will be heard Tuesday by the Air Force appeals court.
A staff sergeant while based at Shaw, Young acknowledged in 2014 engaging in unprotected oral sex and protected anal sex with men to whom he had not divulged being diagnosed as HIV-positive in 2007. He has been receiving medical treatment.
“There was no evidence admitted at trial . . . to demonstrate a realistic possibility of transmission of HIV,” Schrama wrote in a brief.
Government attorneys argued in their brief that “the only question to be asked” is whether Young had engaged in sexual relations without first informing his partners of his HIV-positive status. Since he did not, the government concludes, his partners could not knowingly consent, which means the sexual touching amounted to battery.