Coming in at number seven on our list was the CAAF’s decision this year in United States v. Gutierrez (CAAFlog case page). This case was notable for several reasons. First, it overturned what appeared to be settled case law in the area of HIV-positive service members who failed to disclose their status to their sexual partners. Since the case of United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), it was understood that a service member with HIV who failed to inform a sexual partner of his HIV status could be charged with aggravated assault. In determining that sexual intercourse with an HIV-positive person constituted a means likely to cause death or grievous bodily harm, the Joseph court found that the focus “was 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.” Id. at 397. To explain this concept, the Joseph court gave the analogy of an aggravated assault by firing a weapon at someone:
If we were considering a rifle bullet instead of HIV, the question would be whether the bullet is likely to inflict death or serious bodily harm if it hits the victim, not the statistical probability of the bullet hitting the victim. The statistical probability of hitting the victim need only be “more than merely a fanciful, speculative, or remote possibility.”
Id. at 396-397.
In Gutierrez, the CAAF refined the focus the on the word “likely” in the context of HIV cases and addressed the issue of whether the proverbial “hitting the victim” was more than a remote possibility. For the sexual acts alleged in Gutierrez, the CAAF found that the risk of infection was so small that it was not more than a “remote possibility” and therefore not “likely” to produce death or grievous bodily harm. The Court discussed the expert testimony in the case which established that the risk of infection of HIV from unprotected oral sex was almost zero, that the risk of infection in protected vaginal intercourse was a “remote possibility,” and that the risk of infection in unprotected vaginal intercourse was 1 in 500, which the Court also deemed to be “not likely” to occur. Therefore, the Court found that the evidence at trial was legally insufficient to find the accused guilty of aggravated assault.
While the Court overturned the convictions for aggravated assault, the Court unanimously affirmed convictions for assault consummated by battery, citing to Canadian law for the proposition that the sexual acts constituted bodily harm, because disclosure of HIV status is necessary for true consent. It is interesting that the CAAF chose to cite foreign law to support this rationale, since their predecessor court reached the same conclusion in Joseph:
Further, the actus reus of assault consummated by a battery (or “bodily harm”) includes “any offensive touching of another, however slight.” We can think of no reason why a factfinder cannot rationally find it to be an “offensive touching” when a knowingly HIV-infected person has sexual intercourse with another, without first informing his sex partner of his illness — regardless whether protective measures are utilized. Given the consequences of Acquired Immune Deficiency Syndrome (AIDS), the label “offensive touching” seems rather mild for such unwarned, intimate contact with an HIV-infected person. We assume most unwitting sex partners, including the victim herein, could readily think of more graphic descriptions for such behavior. We hold that a rational factfinder could find, beyond a reasonable doubt, that appellant’s conduct amounted to an assault consummated by a battery on Petty Officer W.
The potential problem with this rationale is that, as Zach aptly put it:
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.
Despite this criticism, CAAF does not seem to be backing down from its decision, as it denied reconsideration in April. Thus, it remains to be seen whether this logic will be extended to other types of cases or if it is simply a different carve out for HIV cases, much like the one CAAF overturned in Gutierrez.