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Military Appeals Court Changes Analysis of “Aggravated Assault” HIV Exposure Cases

Posted on: February 24th, 2015 by Art Leonard No Comments

Reversing the conviction of HIV-positive Air Force Technical Sergeant David Gutierrez on charges of aggravated assault for engaging in unprotected oral and vaginal sex with women during “swingers” parties, the U.S. Court of Appeals for the Armed Forces ruled on February 23 in United States v. Gutierrez, No. 13-0522, that statistics about the likelihood of transmission of HIV under such circumstances would not support a conviction under Article 128(b) of the Uniform Code of Military Justice, which applies when a person “commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm.”

Gutierrez was convicted of “aggravated assault” and other charges at a court martial presided over by Military Judge William C. Muldoon, Jr., who applied a 1993 decision, United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), which 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.”  Thus, Muldoon rejected Gutierrez’s contention that the statistics presented in the court martial would not support a conclusion that his conduct was “likely” to cause death or grievous injury to the women with whom he was having sex.

The court of appeals, bowing to criticism of its prior reasoning as having become outmoded as a result of medical advances and better knowledge about how HIV is transmitted, agreed that if HIV transmission is highly unlikely as a statistical matter, then it cannot be said that the defendant had acted in way that was “likely to produce death or grievous bodily harm.”

Clearly, any sexual activity using barrier contraception (condoms) could not constitute an aggravated assault on this reasoning, in light of the very high rate of effectiveness of condoms in preventing transmission.  The expert testimony presented in this case, wrote Judge Baker, “makes clear that condom use protects against the transmission of bodily fluids in ninety-seven to ninety-eight percent of cases, and that any transmission risk only obtains in the transmission of bodily fluids.”  The government’s own expert witness had testified that the risk of HIV transmission  in a case of “protected vaginal sex was only ‘remotely possible.'”  As such, it could hardly be called “likely.”

As to unprotected vaginal sex, the same expert put the risk of transmission at 20 out of 10,000, or about 1-in-500, which was described as the “high-end” statistic.  Based on this number, the court concluded that “HIV transmission is not the likely consequence of unprotected vaginal sex.  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” to support the conviction.

As to unprotected oral sex, the expert testimony said that the chance of transmission through that mechanism was “almost zero.”  Under the court’s new reasoning, that testimony would not support a conviction for aggravated assault.

The court also rejected the government’s argument that Gutierrez could be convicted of “attempted aggravated assault,” since that would require proof of “specific intent to commit the offense of afflicting “grievous bodily harm” on the victim.  The court hypothesized that an HIV-positive person who filled a syringe with his own blood and injected it into another person could be convicted of this offense.

However, the court held that David Gutierrez was guilty of the lesser-included offense of simple assault, which requires that the accused “did bodily harm” which includes “any offensive touching of another, however slight.”  Since the women involved testified that they would not have consented to unprotected sex with Gutierrez had they known he was HIV-positive, they did not give “informed consent” based on awareness of the risks involved.  “Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent,” wrote Judge Baker.  Thus, Gutierrez “is therefore guilty of assault consummated by battery, and we affirm that offense as a lesser included offense of aggravated assault.”

The court stated that it was expressly overruling U.S. v. Joseph and reversing the aggravate assault conviction, but affirming the conviction on other charges (including adultery, in that these swingers parties in which Gutierrez and his wife participated included other married couples and everybody was mixing it up with each other’s spouses).  The case was sent back to the lower court to either reassess the sentence originally imposed or to hold a new sentencing hearing. Recognizing that this case has dragged on for a very long time, the court also charged the Air Force Court of Criminal Appeals with considering whether Gutierrez’s due process rights were violated “by the facially unreasonable appellate delay that occurred in this case.”

This ruling raises important issues outside the military context, since civilian courts have also imposed severe penalties in some cases upon HIV-positive defendants comparable to Gutierrez, using much the same reasoning.  It is noteworthy, however, that in the past few years courts have started to become much more sensitive to the developing knowledge about transmission risks, especially when HIV-positive people are compliant with anti-retroviral therapy rendering their viral load undetectable or are using condoms to block transmission.  This military case involved a “swingers” club that, so far as the court’s decision went, didn’t involve same-sex contact or anal sex.  It will be interesting to see whether the military courts will be consistent in their reasoning if they are 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.

Unprotected Sex as “Aggravated Assault” – Are Military Courts Getting Competent Expert Testimony on HIV?

Posted on: April 5th, 2013 by Art Leonard No Comments

The U.S. Air Force Court of Criminal Appeals has affirmed the conviction of an HIV-positive Airman for failing to obey a lawful order, indecent acts, aggravated assault, and adultery, upholding the court martial’s sentence of dishonorable discharge, eight years confinement, total forfeitures of pay and benefits, and reduction in grade.  The basis for the charge?  Tech. Sgt. David Gutierrez and his wife participated in group sex activities with others without Gutierrez disclosing he was HIV-positive, and Gutierrez did not consistently use condoms during these activities.  There is no evidence that any of Gutierrez’s sexual partners has become infected as a result of these activities.

According to the per curiam opinion issued by the court on March 21, 2013, Gutierrez tested positive in 2007. When he was reassigned to McConnell Air Force Base in Kansas, his new commander gave him the order to “follow preventive medicine requirements in accordance with Air Force instruction 48-135,” which requires disclosing HIV status to sexual partners and following safer sex rules.  The court’s opinion does not relate how the “group sexual activities” of Gutierrez and his wife came to the attention of military prosecutors. Indeed, the opinion doesn’t even mention whether Gutierrez’s wife knew that he was HIV-positive.

On appeal, Gutierrez argued “ineffective assistance of counsel” because his military defense lawyer refused to accept “an offer of free expert assistance from the Office of Medical and Scientific Justice,” an organization that provides free assistance to defendants “facing HIV-related charges.”  Instead, the defense lawyers consulted an “HIV expert” who was “appointed and paid for by the convening authority,” and whose expert testimony apparently did not help Gutierrez very much at his court martial.

The charge of aggravated assault, the most serious one that he faced, is based on the idea that he engaged in activity that was “likely” to produce death or grievous bodily harm.  This logically breaks down into two components: how likely was it that Gutierrez would infect a sexual partner by failing to use condoms, and likely is it that somebody newly-infected with HIV will suffer death or grievous bodily harm as a result? 

At the court martial, the expert witness testified that based on Gutierrez’s viral load at the time the odds that he would transmit HIV to a sexual partner during “unprotected vaginal intercourse” were “somewhere between 1 and 10 per 10,000 exposures” and that condoms would be effective in blocking transmission “97 to 98 percent of the time.”  The expert also testified that the change of transmission through oral sex was “zero.”  As to the consequences of infection, the expert testified “that the disease has no cure and that without medical intervention an infected person will die of AIDS.”  From this, the court of appeal reasoned, “Thus, while the likelihood of transmission is low, the likelihood of death or serious bodily harm resulting from infection is quite high.  Given the extreme magnitude of potential harm and applying the standards” of prior military HIV exposure cases, “the military judge sitting as the trier of fact could have found all the essential elements beyond a reasonable doubt,” so the court rejected Gutierrez’s argument that the evidence did not support his conviction on the aggravated assault count.

The court acknowledged that in one of the past cases, a concurring judge had questioned the continued application of some of the earlier precedents “under the current state of scientific evidence regarding HIV and AIDS,” but that didn’t seem to give pause to the court of appeals in this case. 

Surely it was wrong of Gutierrez not to disclose his HIV status of he was going to engage in unprotected sex, if — as the testimony indicated — his viral load was high enough for him to be infectious.  There is controversy about using criminal law in HIV cases, especially when no “victim” was actually harmed.  But if criminal law is to be used, one might question why the evaluation of consequences of transmission assumes the likelihood that victims won’t get treatment, will consider only whether somebody who lacks treatment will die from AIDS, and will neglect entirely the status of HIV infection as a manageable chronic infection for many people.  One  suspects that the expert testimony that the defense counsel rejected might have been more helpful than the expert testimony provided and paid for by the government in this case.

The court also rejected Gutierrez’s argument that the group sex activities, since consensual, could not be prosecuted as “indecent conduct” or “adultery.”    The court said that when Gutierrez failed to disclose his HIV status, he vitiated consent, and the fact that his wife participated in the group sex activities did not mean that Gutierrez was not committing adultery.  The court rejected the claim that Gutierrez received ineffective assistance of counsel because his appointed counsel rejected the proffered free assistance, and refuted Gutierrez’s claim that the defense proceeded without any expertise, based on records showing that the government expert was compensated for 16 hours of work in connection with this case.