CAAF decided the Air Force case of United States v. Gutierrez, 74 M.J. 61, No. 13-0522/AF (CAAFlog case page) (link to slip op.), on Monday, February 23, 2015. The court finds that Appellant’s conviction of aggravated assault, for engaging in sexual activity without disclosing to his partners that he was HIV-positive, is legally insufficient because there was no more than a 1-in-500 chance that Appellant would infect his partners. In so deciding, CAAF expressly overrules two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirms a conviction for the lesser included offense of assault consummated by a battery. The court sets aside the sentence and remands the case for reassessment or a sentence rehearing.

Chief Judge Baker writes for a unanimous court.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge sitting alone, of failing to obey a lawful order, committing indecent acts, aggravated assault, and adultery, in violation of Articles 92, 120, 128, and 134. He was sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a dishonorable discharge. Appellant’s convictions all related to sexual activities with partners who did not know that Appellant had tested positive for the Human Immunodeficiency Virus (HIV).

The Air Force CCA affirmed the findings and sentence in an opinion dated March 21, 2013. CAAF then granted review and scheduled the case for oral argument on December 16, 2013. But two weeks before the oral argument, CAAF remanded the case for a new review by a properly constituted panel of the Air Force CCA. See United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page). On remand, the CCA again affirmed the findings and sentence in an opinion dated February 25, 2014. CAAF subsequently granted review of three issues:

I. Whether the evidence was legally insufficient to find beyond a reasonable doubt that appellant committed assault likely to result in grievous bodily harm.

II. Whether the evidence was legally sufficient to find beyond a reasonable doubt that appellant committed adultery.

III. Whether the facially unreasonable delay in post trial processing deprived appellant of his due process right to speedy review pursuant to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

Chief Judge Baker’s decision answers the first issue in the affirmative, the second issue in the negative (rejecting Appellant’s argument that his conduct was constitutionally protected because his wife participated in the sexual encounters), and orders the Air Force CCA to consider the third issue on remand.

The opinion begins by highlighting that “the question in this case is not whether HIV, if contracted, is likely to inflict grievous bodily harm,” but rather that the question “is whether exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous bodily harm.” Slip op. at 9. Yet CAAF has “repeatedly has held that the risk of harm need only be ‘more than merely a fanciful, speculative, or remote possibility.’” Slip op. at 10 (quoting United States v. Weatherspoon, 49 M.J. 209, 211 (C.A.A.F. 1998) (quoting United States v. Klauck, 47 M.J. 24, 25 (C.A.A.F. 1997)) (and citing United States v. Joseph, 37 M.J. 392, 396-97 (C.M.A. 1993); United States v. Johnson, 30 M.J. 53, 57 (C.M.A. 1990).

In particular, in Joseph the C.M.A. started from the opposite standpoint of today’s CAAF, with then-Judge Cox writing 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.” Joseph, 37 M.J. at 397 (emphasis in original). In other words, precedent looks past the risk of infection to consider the danger if infected. Chief Judge Baker dissects and rejects Joseph, explaining that:

There are at least two problems with this Court’s prior analysis in Joseph. First, the Joseph court focused exclusively on the likelihood that death or grievous bodily harm would occur in the event of transmission, without consideration of whether the risk of transmission was itself likely. . . . Second, Joseph adopted a definition of “likely” that appears to be sui generis to HIV cases and is not derived from the statute itself. . . .

“[L]ikely” must mean the same thing in an Article 128, UCMJ, prosecution for an aggravated assault involving HIV transmission as it does in any other prosecution under the statute.

Slip op. at 10-12. This leads to the “ultimate standard” of “whether – in plain English – the charged conduct was ‘likely’ to bring about grievous bodily harm. As related to this case, the question is: was grievous bodily harm the likely consequence of Appellant’s sexual activity?” Slip op. at 12.

And so Chief Judge Baker analyzes each of the three kinds of sexual activity that Appellant engaged in with his uninformed partners: Unprotected oral sex, protected vaginal sex, and unprotected vaginal sex. Each is found insufficient to sustain a conviction of aggravated assault.

For the unprotected oral sex, the Chief Judge notes that “the expert testimony in this case is that the risk of HIV transmission [from unprotected oral sex] was ‘almost zero.'” Slip op. at 12. Accordingly, “there should be no question that a risk of ‘almost zero’ does not clear any reasonable threshold of probability.” Slip op. at 12.

For the protected vaginal sex, the Chief Judge notes that CAAF has “previously concluded that ‘[t]he fact that a male uses a condom during sexual intercourse is not a defense to [aggravated] assault.'” Slip op. at 13 (quoting Klauck, 47 M.J. at 25). However, “the expert testimony in this case makes clear that condom use protects against the transmission of bodily fluids in ninety-seven to ninety-eight percent of cases . . . . Further, Dr. Sweet, the Government’s expert witness, agreed with trial defense counsel that the risk of HIV transmission in the case of protected vaginal sex was only ‘remotely possible.'” Slip op. at 13. This remote possibility is insufficient to sustain the conviction, and Klauck (like Joseph) is “expressly overruled.” Slip op. at 13.

For the unprotected vaginal sex, Chief Judge Baker’s opinion views the evidence in the light most favorable to the prosecution, and finds it lacking. “[A]ccepting the high-end statistic of 1-in-500 exposures resulting in HIV transmission from unprotected vaginal intercourse consistent with our obligation to construe the evidence in the light most favorable to the prosecution under Jackson [v. Virginia, 443 U.S. 307, 319 (1979)], we conclude 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.” Slip op. at 14.

Chief Judge Baker then explains that the court’s decision is focused on the consistent application of the law:

There is nothing improper regarding the government’s reliance on generally applicable statutes to prosecute criminal conduct, but in cases involving HIV exposure, the government will be held to its burden of proving every element of the charged offense in the same manner that is required in other cases invoking the same statute. As Judge Wiss wrote in his separate opinion in Joseph:

[W]hen the Government comes before a court of law and tries to fit a round peg of conduct into a square hole of a punitive statutory provision, it is not the proper function of the court to reshape the hole so that it will accept the peg and, in the process, distort the hole’s character. Rather, it is the proper limit of the court’s function to consider whether the hole – politically determined – already is large enough so that the peg fits within it.

37 M.J. at 402 (Wiss, J., concurring in the result).

Judge Wiss’s concern that the law should not adopt a sui generis standard in cases involving HIV exposure should have governed in Joseph, and similar concerns guide our decision today. On this record, the Government failed to prove that any of Appellant’s acts were “likely” to transmit HIV, i.e., that HIV transmission was “likely” in the sense of applying plain English in the context of the facts and circumstances presented in this case. Thus, Appellant’s conviction must be reversed as to each specification of aggravated assault.

Slip op. at 15-16.

Yet CAAF unanimously affirms a conviction for the lesser included offense of assault consummated by a battery on the basis that the consent given by Appellant’s sexual partners was not meaningfully informed:

The question remains whether the evidence is legally sufficient to affirm a lesser included offense of assault. The offense of assault consummated by battery requires that the accused “did bodily harm.” MCM pt. IV, para. 54.b.(2). “‘Bodily harm’ means any offensive touching of another, however slight.” MCM pt. IV, para. 54.c.(1)(a). Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”). He is therefore guilty of assault consummated by battery, and we affirm that offense as a lesser included offense of aggravated assault.

Slip op. at 16-17 (emphasis added) (citation omitted). Of note, a person “cannot consent to an act which is likely to produce grievous bodily harm or death.” United States v. Outhier, 45 M.J. 326, 330 (C.A.A.F. 1996). So consent was not an issue in Appellant’s now-reversed conviction for aggravated assault.

CAAF’s conclusion about consent is astonishing for two reasons. First, the court gives no consideration to the consent-related issues of fraud in the factum and fraud in the inducement:

The general rule is that if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as any other consent . . . if the deception related not to the thing done but merely to some collateral matter . . . .

United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007) (quoting Rollin M. Perkins & Ronald N. Boyce, Criminal Law 215 (3d ed. 1982)). I discussed this in my argument preview in this case, and the issue received a brief mention during the oral argument. Appellant’s deception (or failure to volunteer information) about his HIV status did not change the fact that he engaged in various sexual acts with people who consented to engaging in those very sexual acts with him. If Appellant’s mere failure to advise his sexual partners about his HIV status invalidated their consent to the sexual acts (not because of the danger of death or grievous bodily harm, but merely because his partners were uninformed), the same would be true if Appellant had withheld other information, such as his marital status, fertility, or lineage.

But more astonishing than the lack of consideration of the effect of Appellant’s misrepresentation is the fact that CAAF decries separate standards for the meaning of the term “likely” in the HIV context, while reaching to foreign law to adopt a separate standard for the meaning of the term “consent.” The opinion notes:

“[L]ikely” must mean the same thing in an Article 128, UCMJ, prosecution for an aggravated assault involving HIV transmission as it does in any other prosecution under the statute.

Slip op. at 11-12. But as for “consent”:

Without disclosure of HIV status there cannot be a true consent.

Slip op. at 17 (quoting R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.)) (emphasis added) (Canadian opinion available here).

I think this an incredibly odd ending to a very interesting opinion. CAAF reaches to foreign law to invalidate the consent of Appellant’s sexual partners, while simultaneously rejecting the notion that it should distort the law to “fit a round peg of conduct into a square hole of a punitive statutory provision.” Ultimately, the court seems to have merely traded one distortion of the law for another.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
• Brief of Amicus Curiae (Army Defense Appellate Division)
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

27 Responses to “Opinion Analysis: Foreign law and fallen precedent dominate United States v. Gutierrez, No. 13-0522/AF”

  1. brian lc says:

    So, its a battery because there was no consent.  So…it…was…a…rape?    Is there daylight between the lack of consent needed for a battery and sexual assault?  Can one penetrate without (valid) consent and be guilty of a battery, but not a 120 offense.

  2. k fischer says:

    Can’t wait for the next next Article 120 case where some E3 told a female he was a Captain, or some 02N tells a female he is a Ranger before they do the deed.  Or how about when a male gets a female pregnant because she told him she was on the pill.  Apply all those examples and someone can argue that under Gutierrez, there was not “true” consent.  So, what is “true” consent and what is just your normal everyday consent?   Why couldn’t they just dismiss it without finding an LIO!  Also, is it a sexual assault offense because it was sexual penetration without consent?

  3. RY says:

    I thought the same thing.  I was troubled reading how not informing someone of a fact turns it into a lack of consent.  So if a woman tells you she’s on birth control and turns out she’s not, as long as you say you wouldn’t have had sex with her, that means she raped you?  Or perhaps, if she lies about the fact that she’s married, and you wouldn’t have had sex with her if you knew she was married, then there’s no consent?  Seems like CAAF should have done a much better job on the LIO.

  4. Jed says:

    FULL DISCLOSURE:  I was on the trial defense team.
    It’s nice to see the court finally fix the inconsistent application of 128 WRT HIV as agg assault.  There were a lot of public doubts about us pursuing that defense at trial.
    OTOH, the consent analysis does open up Pandora’s box.

  5. The Silver Fox says:

    Doesn’t “likely” mean more likely than not?

  6. Zachary D Spilman says:

    Precedent (Joseph) defined “likely” differently in this context, The Silver Fox.

    The Government now argues that we should affirm the conviction for aggravated assault under Joseph, because according to that precedent, “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.” Joseph, 37 M.J. at 397 (citation and internal quotation marks omitted). 

    Gutierrez, Slip op. at 7 (emphasis in original).

  7. anon says:

    Worth a review if simply for the quote from Judge Wiss concurring in part in Joseph.  Judge Wiss well pre-dated many of us, however, Judge Wiss’s opinions  — for me — were well-reasoned and, more importantly, thought-provoking. 

  8. interested bystander says:

    Non-lawyer here, but just so, I understand correctly, Gutierrez was convicted of assault because his partner did not consent to something the court just said was unlikely to occur and therefore did not constitute grievous bodily harm.  But if she had known she would not have consented because it would likely kill her if the HIV was transmitted, which would have been grievous bodily harm?  Does that make sense?

  9. JustAnotherADC says:

    It seems to me that the CAAF has eliminated a nuisance (agg assault HIV prosecutions) and created a monster, i.e., sexual battery for lack of “informed consent,” with the sole justification being foreign law.  It does not appear that there was any serious consideration of UCMJ definitions of consent or the concept of fraud in inducement or fact distinctions. 
    Although some of the justices support citations to foreign law, that appears to usually be for the benefit of an accused.  See, e.g., Roper v. Simmons, 125 S. Ct. 1183, 1199 (2005) (“The United Kingdom’s experience bears particular relevance here . . . . As of now, the United Kingdom has abolished the death penalty in its entirety; but, decades before it took this step, it recognized the disproportionate nature of the juvenile death penalty; and it abolished that penalty as a separate matter.”); Lawrence v. Texas, 539 U.S. 558, 572 (2003) (“The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo‐Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction.”); Atkins v. Virginia, 536 U.S. 304, 317 n.21 (2002) (“[W]ithin the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.”).
    The basis for affirming an LIO seems extremely questionable to me.  I do not think this issue was thoroughly briefed at CAAF, and hope the parties request reconsideration.

  10. stewie says:

    It’s a bold move Cotton, let’s see if it pays off.

  11. LitLady says:

    brian lc,
    I think there is light between consent in a 120 context and consent for 128 offenses. The MCM restricts “incapacity to consent” to incompetence due to impairment of drug, alcohol or similar substance and/or mental disease or defect.  The definition itself defines consent as a “freely given agreement to the conduct at issue by a competent person.” I think that it would be a tough argument to make that non-disclosure of HIV status renders a sexual partner “incompetent” and therefore incapable of consent.  Even if it did, it wouldn’t qualify as incompetence to consent due to impairment of drugs etc.
    Agree that the Court waived away the “fraud in factum” problem, especially in light of Art 120(b)(1)(D) … A sexual partner represents that they are HIV free (on BC, single, etc), would that be “inducing a belief by artifice, pretense or concealment that the person is another person?” In other words, sexual partner only consents because they believe their partner is HIV free, but in fact they are a person who is HIV+?  The analysis simply states that this covers, “fraud in factum” situations. According to, black letter law, FiF  is fraud caused by a misrepresentation that causes another to enter a transaction (here sex) without accurately realizing the risks, duties, or obligations incurred. The argument is there to make I think!
     I’ve charged several HIV+ cases and would never charge Aw/GBH (even got scolded by an MJ once for not charging Attempted Murder! I always charged it as a failure to obey lawful order). All the experts said there was a less than 1% chance of contracting the HIV virus. Not where near “means likely.” Have to agree with Baker’s analysis in that regard – You wave around an unloaded firearm without a clip, the analysis needs to be the likelihood of that action causing D or GBH. Not the likelihood of D/GBH occurring to a bystander hit by a hypothetical bullet from the weapon. 

  12. stewie says:

    But this isn’t about inability or incapacity to consent, this is straight up “I wouldn’t have consented if I’d have known X.”
    This is, as you say, about fraud, not incapacity/incompetence, and thus I don’t see any light at all between the two (although one suspects the court will eventually find light lest a whole lot of former law gets turned on its head).

  13. Advocaat says:

    Can I now go out and fire my 9mm in the air without fear of a reckless endangerment charge because surely there is a less than 1-in-500 chance I would actually hit someone?  And doesn’t this case create a separate standard for individuals who engage in unprotected anal sex, which is 17 times more likely to result in HIV transmission than unprotected vaginal sex according to the CDC site referenced by CAAF? 

  14. brian lc says:

    Battery requires bodily harm.  Sexual Assault, [120(b)(1)(B)],  requires bodily harm.  Can intercourse be battery by bodily harm, and not be a sexual assault by bodily harm?  That may be what I was getting at before.  (I “chose” intercourse because there is no specific intent requirement).
    And advocate, why shoot in the air?  Go ahead and shoot that 9mm at a city.  Actual chance that you hit someone is very, very, small.  (Big sky, little bullet was a phrase I used in a former life).  But let’s say you are unlucky.  (Ok, by that I mean someone else is “unlucky” in a way that doesn’t kill them).  Agg Assualt requires either a specific intent to do GBH (and you didn’t intend to hit anyone, did you?) or that you used a means likely to cause GBH.  And, well, if hitting someone wasn’t “likely” you may be facing a simple battery.

  15. anon81 says:

    Totally agree with you advocaat. If a weapon is fired in the general direction of another, but misses, is that an aggravated assault? Or must the government prove to a statistical degree of probability that the bullet was “likely” to impact the other person? How the hell can one prove that? What happened to “the natural and probable consequence” standard? Webster’s definition of “likely” is significant.

  16. k fischer says:

    Jed: Kudos to your representation in this case.  You served your client well.  But, I must say:
    Congress:Article 120::CAAF:HIV(+) sex agg assault charge
    Both should have left well enough alone.  I’m sure that many a father would find comfort in knowing that an HIV(+) Soldier having sex with their daughter would be charged with Agg assault.  
    Here’s an interesting question:  Would the analysis change if the unprotected sex resulted in one of the females coming up HIV(+)?   Should it change if the means that resulted in the harm are not likely to result in grievous bodily harm, yet resulted in grievous bodily harm?
    And, Stewie: Nobody makes me bleed my own [HIV(-)] blood.

  17. The Silver Fox says:

    ZS:  Understood WRT Joseph, but isn’t a plain meaning reading of “likely” > 50%?  That would seem to me to change the nature of all aggravated assaults with a force likely in the future, not just STD cases.

  18. Zachary D Spilman says:

    For those wondering about the legal ramifications of indiscriminately discharging a loaded weapon, there’s United States v. Burns, No. S32084 (A.F. Ct. Crim. App. Dec. 18, 2013) (discussed here), aff’d, 73 M.J. 407 (C.A.A.F. 2014) (summary disp.) (discussed here). The appellee in Burns was convicted of one specification of willfully and wrongfully discharging a firearm under circumstances such as to endanger human life, in violation of Article 134. But the CCA reversed the conviction, noting:

    It may seem obvious that, as the Government claims on appeal, “What goes up must come down,” but there appears to be some scientific dispute as to whether bullets falling from the sky present any appreciable threat to human life. We pass no judgment on the scientific principles involved in falling bullets, but the idea that a bullet shot into the air presents a safety threat to human life is not so self-evident that the Government did not need to introduce any evidence on this point.

    Slip op. at 5.

    As for your point, The Silver Fox, I think that you’re right about the plain-English meaning of the term “likely.” The problem (as Chief Judge Baker noted in his opinion) was that caselaw treated HIV cases differently. So this decision doesn’t change the garden-variety aggravated assault case, but rather it brings the analysis of HIV cases into conformity with other fact patterns.

  19. Advocaat says:

    Thank you for Burns, @ZDS.  But if an individual is HIV-positive, isn’t engaging in unprotected sex more on par with shooting at a building in terms of the odds of endangering human life/likely producing death or GBH than simply shooting in the air?

  20. Zachary D Spilman says:

    Well, Advocaat, look at it this way.

    You ask if an HIV-positive person engaging in unprotected sex isn’t “more on par with shooting at a building . . . than simply shooting in the air.” My response is that it doesn’t matter. All that matters is whether an HIV-positive person engaging in unprotected sex is “means or force likely to produce death or grievous bodily harm.” Article 128(b)(1). That is a question of fact (and the facts of Gutierrez say that it isn’t so likely).

    But as a matter of law, if an activity is so likely to cause such harm, then the other person cannot consent to the activity and it is punishable as aggravated assault.

    Conversely, if an activity is not so likely to cause such harm, then it may still be punishable as assault consummated by a battery, however the other person can consent (and the accused can have a mistaken belief as to consent).

    Unless (it seems, from this opinion) the activity at issue is sexual activity with an HIV-positive partner. In that case, any consent is invalid because CAAF has adopted the (seemingly uniquely) Canadian principle that “without disclosure of HIV status there cannot be a true consent.” Gutierrez, slip op. at 17 (quoting R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.)). Notably, it doesn’t seem to matter what the sexual activity is. There is no consent even for unprotected oral sex where the risk of transmission of HIV is “almost zero.” Slip op. at 12.

    This begs all manner of additional questions. Such as whether it is a defense for an accused to have a reasonable mistake of fact belief that the other person knew about his HIV status.

    But what really bugs me is that it was so unnecessary for CAAF to open this can of worms. Without the assault conviction, Gutierrez would still be convicted of an orders violation, committing indecent acts, and adultery. Plus, his failure to inform his partners would be relevant in sentencing (it was part of the order, I believe). And the maximum authorized confinement for assault consummated by a battery is a mere six months. See MCM, App. 12.

  21. Phil Cave says:

    Now what?

  22. Another Perspective says:

    Anyone have any clue/speculation why CAAF would have AFCCA look at the Moreno issue… again?  AFCCA already addressed it in their original opinion and again in their opinion after the first CAAF remand.  Unless CAAF is concerned that their time taken to grant the second petition and render the opinion now somehow triggers a Moreno problem, I’m not seeing it.

  23. Advocaat says:

    So, not entirely tongue-in-cheek:  (1) for HIV non-disclosure cases involving unprotected vaginal sex, agg assault is as dead as the 1.5M people who perished worldwide from HIV/AIDS in 2013 b/c death/GBH isn’t statistically likely, despite the fact the accused’s sexual partner was 100% exposed to the virus; (2) we have no idea whether the same can be said for such cases involving unprotected anal sex b/c there is a much greater than 1-in-500 chance of transmission; (3) we have no idea whether agg assault would survive CAAF’s next foray into math and statistics if one of these cases actually resulted in HIV transmission b/c it is treatable and, hey, people die for all sorts of reasons; (4) “1-in-500 chance” is the new bright-line rule for determining whether any act is likely to cause death/GBH in all cases b/c, as CAAF points out, all are equal under the law–good luck proving that, TC; (5) these cases should be charged under Article 92 if a lawful order exists, until CAAF strikes them down as a HIPAA violation; (6) these cases may now also be charged as rape under Article 120 b/c we don’t have enough of those; (7) we should look to our Commonwealth and European friends for UCMJ guidance, to include whether Article 25 denies an accused the right to an impartial tribunal under Findlay v. UK; (8) we should not look to the world for HIV/AIDS guidance b/c it is too grim and “epidemic” has no legal meaning; (9) to go “Canadian” is the new shorthand for a whopper of a non-sequitur, e.g., “CAAF went Canadian–again,” or “that last post with 9 points was an all-out Canadian.”

  24. k fischer says:

    Looks like you are the first resident of the Gutierrez trailer park!  

  25. Unprotected Lex says:

    How is the protected vaginal sex assault consummated by a battery? Where is assault or the battery when the ejaculate never touches the alleged victim? It seem to me that when it comes to disease transmission, the assault and the battery must lie in the fluid, not the phallus.

  26. DCGoneGalt says:

    Unprotected Lex:  I believe it is in the lack of disclosure of HIV status, vice the actual phallus v fluid, that creates the harmful touching.  I am thinking of it in the context of a fraudulent transaction for failing to disclose a defect or a de facto false representation, i.e. that by not affirmatively disclosing HIV positive status you are by your silence stating that you are HIV negative.
    On a different nite, it begs the question of whether an Accused in sentencing in the unprotected vaginal intercourse fact pattern you bring up may bring up the fact that they believed HIV testing results in an overage of positive test results, and that therefore they did not (or do not) actually believe they have the virus.  But is this something that you could get admitted in findings, i.e. if you have an expert who believes you are HIV negative in spite of the positive test results is it really a harmful touching? 

  27. Unprotected Lex says:

    I dunno, DCGG. If the transmission rate for protected vaginal sex is virtually zero,* why should the sheathed penetrator be expected to affirmatively speak to his HIV status at all? How can his silence be criminaI in light of the scientific evidence received in this case? I find it hard to grasp how there is a problem is with the sheathed dingus, and not simply with the payload deposited by the unsheathed dingus. The dingus itself is only a problem insofar as it deposits a potentially toxic payload. Ergo, the sheathed dingus shouldn’t be a problem at all.
    *Apparently, condoms protect from fluid transmission 97-98% of the time. And in the 2-3% of cases where they don’t, there is evidently still only a 1-in-500% chance of contracting HIV. A .2% chance of a 2-3% chance. I’m calling that virtually no chance at all.