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

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.

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