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.