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Unprotected Sex Leads to Aggravated Assault Verdict

BY ARTHUR S. LEONARD | The US Air Force Court of Criminal Appeals has affirmed the conviction of an HIV-positive airman on charges stemming from group sex activities that he and his wife engaged in during which he did not disclose his sero-status and did not consistently use condoms.

The charges included failure to obey a lawful order, indecent acts, aggravated assault, and adultery, and the appellate court upheld the court martial’s sentence of dishonorable discharge, eight years of confinement, total forfeitures of pay and benefits, and reduction in grade.

There is no evidence that any of Technical Sergeant David Gutierrez’s sexual partners has become infected as a result of these activities, and the court’s March 21 opinion does not explain how the group sex came to the attention of military prosecutors or even whether the sergeant’s wife was aware he was HIV-positive.

Are military courts getting competent expert testimony on HIV?

According to the opinion, when Gutierrez, who tested positive in 2007, was reassigned to McConnell Air Force Base in Kansas, his new commander ordered him to “follow preventive medicine requirements” of Air Force regulations that require him to disclose his HIV status and follow safer sex guidelines.

In his appeal, Gutierrez argued he had “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 aids defendants “facing HIV-related charges.” Instead, the defense lawyer consulted an “HIV expert” appointed and paid for by the military court whose testimony apparently did not help Gutierrez very much.

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. That raises questions as to how likely Gutierrez was to infect a sexual partner by failing to use condoms and whether somebody he infected would likely suffer death or grievous bodily harm as a result.

Gutierrez’s expert witness testified that based on his 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,” while condoms would be effective in blocking transmission “97 to 98 percent of the time.” The expert also testified that the chance of transmission through oral sex was “zero.”

Regarding 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 testimony, the court of appeals reasoned, “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.” Gutierrez’s argument that the evidence did not support his conviction on the aggravated assault count was rejected.

The court reached that conclusion even while acknowledging that a concurring judge in a previous HIV exposure case had questioned whether “the current state of scientific evidence regarding HIV and AIDS” merited reconsideration of earlier precedents.

It is hard to understand Gutierrez’s decision not to disclose his HIV status if he engaged in unprotected sex, given that he had a detectable viral load. There is, however, controversy about using criminal law in HIV cases, especially when no “victim” was actually harmed.

It is also reasonable to ask why, when criminal law is applied, the evaluation of the consequences of transmission assumes that those newly infected won’t get treatment. It’s not hard to imagine that the expert testimony Gutierrez complains he did not get would have been more helpful than that provided and paid for by the government.

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 found that when Gutierrez failed to disclose his HIV status he vitiated consent and that his wife’s participation did not mean he was not committing adultery.

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