CAAF’s decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page), was the #7 Military Justice Story of 2015 because a unanimous CAAF found the appellant’s conviction of aggravated assault (based on engaging in sexual activity without disclosing to his partners that he was HIV-positive) to be legally insufficient due to a no more than a 1-in-500 chance that the appellant would actually infect his partners with HIV. In so deciding, CAAF expressly overruled two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirmed a conviction for the lesser included offense of assault consummated by a battery, explaining that:

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

74 M.J. at 68.

Last month the Navy-Marine Corps CCA issued a published opinion in United States v. Forbes, __ M.J. __, No. 201600357 (N.M. Ct. Crim. App. Apr. 24, 2018) (link to slip op.), that applies Gutierrez to affirm “convicting a service member of sexual assault for failing to inform a sexual partner of his HIV status before engaging in an otherwise-consensual sexual act.” Slip op. at 4 (emphasis added).

Aviation Maintenance Administrationman Second Class (E-5) Forbes pleaded guilty to various offenses, including four specifications of sexual assault in violation of Article 120 (2012) that were related to Forbes “intentionally hid[ing] his HIV status from his sexual partners.” Slip op. at 3.

Writing for a three-judge panel of the CCA, Senior Judge Hutchison explains:

This is a case of first impression. Neither the parties nor we have identified a precedent for convicting a service member of sexual assault for failing to inform a sexual partner of his HIV status before engaging in an otherwise-consensual sexual act.

Slip op. at 4. For merely failing to inform, one might say. So, finding no precedent, the CCA creates some:

Although we recognize that in Gutierrez, the CAAF was affirming an Article 128, UCMJ, conviction, we see no reason why the CAAF’s holding is not equally applicable in an Article 120(b)(1)(B), UCMJ, case. First, we see no distinction between “bodily harm” as defined by statute in Article 120(g)(3), UCMJ, and the Manual’s definition of “bodily harm” as it relates to Article 128, UCMJ. Both require an “offensive touching,” and the CAAF has concluded that sexual intercourse without informing your partner that you are HIV-positive constitutes an “offensive touching.” Thus, the military judge was bound by the CAAF’s ruling in Gutierrez, and was not therefore laboring under an erroneous view of the law when she accepted the appellant’s plea based upon his admission that he had sexual intercourse with three women without telling them that he was HIV-positive.

Slip op. at 8. A footnote adds:

We make no distinction between the appellant’s failure to inform his sexual partners that he was HIV-positive and any affirmative statement denying that he was HIV-positive or intimating that he was not HIV-positive. Gutierrez does not address the situation where an HIV-positive individual engages in sexual activity after denying his positive status. It is enough, under Gutierrez, that the appellant simply did not tell his partners that he was HIV-positive.

Slip op. at 8 n.20. Put differently, under Forbes, an HIV-positive individual who fails to inform their sexual partner of their positive status is strictly liable for the offense of sexual assault by causing bodily harm – where the bodily harm is a nonconsensual sexual act – in violation of Article 120(b)(1)(B), because if the partner is unaware of the individual’s HIV-positive status then any apparent consent is invalid as a matter of law.

The offense of sexual assault by causing bodily harm under Article 120(b)(1)(B) (and the related definition of bodily harm in Article 120(g)(3)) was repealed in Section 5430 of the Military Justice Act of 2016, however the Act also created a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.” So even after the change takes effect (on January 1, 2019), based on the reasoning of Forbes, an HIV-positive individual who fails to disclose their HIV status to sexual partners will have committed a sexual offense, regardless of the likelihood of transmission of the virus.

That’s a big deal. But where does one draw the line? Is only sexual intercourse adequate to trigger the requirement for meaningful informed consent, or it is triggered by the full range of conduct defined as a sexual act under Article 120(g)(1)? What about sexual contacts as defined by Article 120(g)(2)? What about other (non-sexual) types of contact?

The issue in Gutierrez was whether the risk of transmission of HIV was sufficiently high to render sexual acts a means likely to produce death or grievous bodily harm. CAAF held that the risk was not so high for the acts at issue under the circumstances of that case, but nevertheless held that those acts were offensive touchings based on the absence of “meaningful informed consent.” 74 M.J. at 68. Meaningful informed consent, however, isn’t found in the UCMJ or the MCM or military caselaw (prior to Gutierrez). And since the requirement for meaningful informed consent stated in Gutierrez was not tethered to the risk of HIV transmission, it stands to reason that it is also untethered to the sexual nature of the contact.

Forbes, however, doesn’t go that far. Instead, the CCA refuses to speculate about other situations:

As for the appellant’s concern that our application of Gutierrez might give rise to a host of sexual assault prosecutions for service members who fail to disclose other ailments, such as the human papillomavirus—or even the common cold—we need not determine here what other conditions, if any, would vitiate consent if not revealed to a sexual partner. First, as we noted above, Gutierrez simply reaffirmed the long-standing precedent that failure to disclose HIV-status to a sexual partner constituted an “offensive touching.” Whether the failure to disclose other ailments to a sexual partner constitutes an offensive touching was not before the court in Gutierrez and is not before us in this case. Second, “irrespective of whether a statute could be read to be vague in some other hypothetical case, an appellant has no standing to challenge the facial validity of a statute that clearly applies to his conduct.” United States v. Corcoran, No. 201400074, 2014 CCA LEXIS 901, at *24, unpublished op. (N-M. Ct. Crim. App. 23 Dec 2014) (citing United States v. McGuinness, 35 M.J. 149, 152 (C.M.A. 1992)). Since the appellant’s conduct was clearly prohibited by Articles 120(b)(1)(B) and 128(a), UCMJ, he lacks standing to claim these statutes are facially void for vagueness.

Slip op. at 11.

49 Responses to “The NMCCA applies Gutierrez to affirm a conviction of sexual assault for failure to inform a sexual partner of HIV status”

  1. stewie says:

    Feels like it’s time to create a new/subset offense specifically tied to knowingly exposing someone without their consent to a serious STI (might be some question of what qualifies…is it just HIV, or is it incurable diseases like Herpes…or is it curable diseases that can be fatal if untreated like Syphillis?)?

  2. k fischer says:

    I agree with Stewie.  While I don’t condone people with HIV, HPV, Gonorrhea, Syphillis, Herpes, or the clap spreading their STD’s, I do have a problem with the morphing of Article 128 and/or Article 120 to fit what this knucklehead did into a crime.
     
    So, “meaningful informed consent” is essentially some fact that had the other party known would have caused the other party to not consent to the act?   Therefore, it creates an offensive touching because there has been no meaningful informed consent?  It could be an intentional omission of fact like in the present case and Guitierrez.  Or, it could be a lie. 
     
    For instance, what about a female who says she is on the pill when she is not on the pill and then gets pregnant, making the unwitting male on the hook for child support for 18 years?  What about the guy or gal who doesn’t disclose that they are married?  What about the girl who is about to get kicked out of the Army, but has sex with a guy with the intent to falsely accuse him of sexual assault, so she can get VA benefits?  These are all instances where had the party known the truth, then they would never had consented.  So, are these all sexual assaults?
     
    But, if Congress would go ahead and draft a statute addressing this, then perhaps we wouldn’t have the slippery slope we possibly could have where Guittierez is interpreted for the most it has to be worth, rather than the least it has to be worth.  

  3. Sir Visdis Crediting says:

    Feels like it’s time to create a new/subset offense specifically tied to knowingly exposing someone without their consent to a serious STI

    I don’t know — seems like that would be behind the times.

  4. A Random JAG says:

    This is similar to the cases where there is ejaculation inside without consent.  Not exactly a sexual assault, but not exactly not.  Difficult to categorize the harm, but I think the best analogy in either case is some kind of assault (with sentence enhancements for actually transmitting HIV or causing pregnancy)

  5. Nathan Freeburg says:

    You guys do realize the looney tunes unintended consequences of this?  
    Probably not. It’s the kind of thing married people completely miss. 

  6. Random Trial Counsel says:

    It seems to me like this this should be viewed as an incidental battery–that is, the sexual act wasn’t committed “by” the bodily harm in question.  It may be a battery (or aggravated assault)–such as if one were to non-consensually slap someone during consensual sex, but to transform the entire sexual act into a sexual assault seems like a bridge too far.  That’s even more so when one muses about the vague and uncertain breadth of this new strict liability regime for sexual assault.

  7. K fischer says:

    Why yes, Nathan, I do understand how looney this opinion is taking it.  But I’m married, too, so what am I missing?

  8. Concerned Defender says:

    I can see the argument both ways.  On the one hand, HIV probably isn’t something a sex partner is not bargaining for.  On the other hand, STDs are not uncommon (even carriers sometimes don’t know they are carriers) so the sex partner could have demanded a condom be used, so is there some “contributory” % ??  And the defense is simply “I told the partner, and the partner didn’t seem to care…”, and which point you’re asking the panel to be a lie detector.  And did the accused knowingly lie when asked, or just knowingly conceal, or unwittingly expose?
    On the other hand, this sorta seems like part-and-parcel of the generic known risks to sex that include STDs, pregnancy, upset adulterated spouses, and so forth.  KF brings up a good point.  What about the woman who lies about birth control to get pregnant either intentionally, or recklessly.  Or the married person who lies about his/her status?  Or taken to an extreme, would you have slept with that person if you knew they were prone to make false sex assault allegations and you’re the 4th one this year?  Or that she was a lunatic dingbat stalker?  Or she had a terrible body odor only discovered when in the act??  Doubt it.  Exactly how “thorough” are sex partners expected to be before a roll in the hay?  I suppose there’s a moral answer, but what about a legal answer?
    When a football player suits up to play football, he’s consent to being hit by the opponents as long as it’s within the general risks of the sport.  Likewise, a person having sex sorta consents to the general risks of sex.  
    I foresee a day very soon where standard sex contracts will be routine, citing areas of consent, tick boxes for diseases and test dates, “safe words,” off-limit positions, mental health history, # of divorces, and so forth… and then we’ll wade into the “enduring” nature of the contract and “too drunk to contract” allegations.

  9. anon81 says:

    Aren’t we really just discussing fraud in the inducement vs. fraud in the factum?
    From Blacks: “Fraud in the factum” occurs only rarely, as when a blind person signs a mortgage when misleadingly told that it is just a letter. Sexual assault example would be being misled to believe you are having sex with person A, when you are actually having sex with person B.
    “Fraud in the inducement” is fraud occurring when a misrepresentation leads another to enter into a transaction with a false impression of the risks, duties, or obligations involved; an intentional misrepresentation of a material risk or duty reasonably relied upon, thereby injuring the other party without vitiating the contract itself…” How is this not fraud in the inducement?

  10. Contract Lawyer says:

    This is one of those where I suppose it would not matter if an accused is male or female?
    Lets say you forget to brush your teeth before going out and he/she asks if you brushed your teeth, with the implication that if you say “NO,” them nothing is going to happen.  Or you meet one of those people whose rule is “no shower/no sex”?  You get the drift.  “Of course I showered.”  “Of course I brushed my teeth.”  
     
    What id the other person is a liberal and you are not, but you go along with their nonsense because they are good looking? 
     
    Or or suppose you agree to pay the other person $50 for sex, but afterwards you say that you will have to catch them on Tuesday because you are currently tapped out?  If you don’t pay, is that rape?  Or if you pay for sex with counterfeit money?  What about a bad check?  
     
    What if you claim you are a millionaire?  What counts towards the million dollars?  Unrealized equity in a house?   Present value of your military pension assuming an average life expectancy.  
     
    What id a woman tells a man she is a virgin and isn’t?  Would that mean the woman is guilty of a 120 offense?  How about if the lady lies about whether she is a natural blonde.  She says she is a natural blonde, but bleached.  
     
    Even better, let’s suppose that a couple has been dating a while and the woman tells the man she does not want to have sex because of a few issues she is concerned about.  The man promises to “change his ways” if she has sex with him.  They have sex, but the man does not change his ways.  I could come up with even more. 

  11. stewie says:

    I’m sure you could come up with more. Would probably help if just one of them was remotely similar to having sex with someone who hides their HIV status from you though.

  12. Duderino says:

    This is an area where Canada has it right. Currier was clarified in 2012 by The Candian Supreme Court, R v Maboir (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/10008/index.do
     
    Canada has long charged uniformed HIV sexual intercourse as a sexual assault, but as the Justices line out in Maboir, the laws must take into account advancements in medical knowledge and treatment. 
     
    As mentioned above there must be some sort of line to draw on what type of concealment or nondisclosure constitutes vitiating of consent. Canada drew that line at “a realistic possibility of transmission” 
     
    the 1 in 500 risk  assement testified into the record for Gutierrez has since been even further diminished l. In September 2017 the CDC issued a statement “sexual I tercourse with hiv infected partner who is on treatment and whose virus is durably suppressed is essentially zero” furthermore HIv+ individuals that are undetectable have never been documented transmitting the virus, in fact, several multinational studies logging over 75,000 unprotected occurrences of sexual intercourse have not had one single transmission linked to an undectable partner.
     
    I hope that CAAF will also rely on the new Canadian precedent for guidance on the UCMJ as they did the first time. 
    In my mind once the risk is “essentially zero” this is no less than a violation of civil rights of A minority by the majority.

  13. Concerned Defender says:

    Next up – the absurdity of “intentional infliction of emotional distress” for refusing to have sex with a suitor!  
    Good grief.  

  14. stewie says:

    I certainly don’t think HIV+ people should be in any way discriminated. But requiring them to reveal their status to people they have sex with is not the same violating a minority’s civil rights.
     
    It may be true that thus far the risk is low for people in treatment. But it’s a virus, things can change. I think a requirement to notify is not onerous. We aren’t talking about revealing it to employers or whatnot, we are talking about revealing it to intimate partners. I don’t think those folks should be sex offenders necessarily if they don’t. I do think some lower level criminal consequence to hiding it is appropriate though.
     
    Chlamydia doesn’t kill you. And half the people who get it show no symptoms. But it can also cause infertility if untreated. These aren’t just psychological harms in some cases.

  15. Nathan Freeburg says:

    ah lawyers, still not seeing the unintended consequences 

  16. Kettle Black says:

    Nathan –
    The lawyers are openly discussing the potential unintended consequences.  You’re the only one being needlessly cryptic.  If you have something to add, then just say it. 

  17. Duderino says:

    Stewie: I don’t believe we’re too far off from one another’s views. To me the fulcrum is “realistic possibility of transmission.” And if there is than that’s an assault. It’s not a sexual assault if the person consents without knowledge because the person consented to the sex. The lack of consent was to exposure to the risk of or actual inflicted harm. So I believe it should be removed from the sexual assault arena as in the case at hand. Ie there two separate simultaneous acts: sex, possible exposure to a virus. 
     
    This is a policy issue that has reached the verge of questions of constitutionality but only concerning the essentially zero risk acts.  There is a large place for intentional and reckless exposure criminal charges / civil complaints in my view. But that’s just my view. 
     
    Morally a person should be honest whether there is a risk present or not, but at the same time logically most adults know there are nimerable risks involved with any and all sexual activity. (I mean honestly if almost any American was ever asked under oath if they knew that unprotected sex involved risk for HIV, pregnancy, etc could they say no?)  
    under a negelgence frame – you could argue about amount of risk equating to a duty but you could also argue personal liability or even duty to get tested prior to sexual acts so that you’d know about your own status in order to protect others. 
     
    Currently no HIV+ service member can legally have unprotected sex with their spouse to have a baby even though it’s acceotable to do so medically without risk to the negative partner or baby (if male is the positive one) 
     
    its a very complicated issue. Especially when 99% of those that are positive would never put another at rosk yet are often threatened by intimate partners with criminal charges even though they did disclose. Then you have also those who refuse meds and try to infect others. 

  18. Nathan Freeburg says:

    Because you’re providing disincentives for people to get tested for STDs.
    1.  Something like 80-90% of the U.S. adult population carries the vector for an STI/STD at some point.
    2.  We can only “test” for some but by no means all vectors.  (Which is why anyone who purports to be “STD-free” is fooling themselves.  It’s impossible to know.)
    3.  With herpes and the like many people carry the virus but never have an actual reaction.
    If you make it an offense to be positive for something (especially not directly life threatening) and not tell your partners you give people a choice between getting tested and risking celibacy or jail or not getting tested and getting laid and not going to jail.
    Not rocket science.  If you want people to get tested, you can’t put them in a worse position than if they didn’t get tested.

  19. TC says:

    “It burns when I pee and I know I should get that checked out, but I really want some plausible deniability in case I’m ever accused in one of those cases that I as a non-lawyer haven’t ever heard about.”

  20. Nathan Freeburg says:

    yawn. Non-responsive. 

  21. K fischer says:

    When Snuffy’s balls feel like a pair of maracas, then he’s going to beat feet down to the TMC.  As far as HIV goes, then that’s a different story. There will be plenty of barracks lawyers in the Spec4 mafia who tell everyone not to get tested because they won’t be able to have sex anymore.

  22. Duderino says:

    Maybe it obvious that this is a topic I’ve followed for several years, so I’ll chiime in about this too I guess lol. Many of the organizations fighting for decriminalization if HIV have used this argument and I’ve never agreed with it. Usually people don’t come to know the criminal aspects until after they’ve tested positive and a lot of times not even then. 
     
    Where the conundrum is in my view is that, HIV is spread almost exclusively by people who DON’T know they have it and aren’t on treatment. And thanks to advances in medical treatment these people usually achieve undetectable virus levels within 6 months of starting medication, thus becoming non-contagious. (There’s no law against shaking hands without disclosure, but now sex when undetectable is just as safe)
    So these criminal statutes and safe sexual orders aren’t even directed or enforceable to the individuals that are transmitting the virus. Also of note, as far as testing goes, is STIGMA, which does discourage people from testing AND from disclosing. And if we can all look back president Regan had some very heart felt words about the stigma endure by Ryan White –
    “…..We owe it to Ryan to make sure that the fear and ignorance that chased him from his home and his school will be eliminated. We owe it to Ryan to open our hearts and our minds to those with AIDS. We owe it to Ryan to be compassionate, caring and tolerant toward those with AIDS, their families and friends. It’s the disease that’s frightening, not the people who have it.Former President Ronald Reagan wrote this article for The Washington Post.”
    If an effective vaccine was established and distributed to the masses would there still be a need for HIV laws???? Because that’s effectively what has happened now, just no one knows about it.  Negative individuals can even prevent infection with 1 pill a day. 
    No ones mentioned mentioned Lawrence V Texas yet which also has some weight on the subject.  Because even with discourse, not using a condom is still illegal in the military now, even when both partners are aware of the risks and the treating physician even supports. That’s another angle on the topic. 
     
    (Nathan, delivery and tone may distract from your purpose. This is an important topic that deserves discussion among professionals, the moderator often shuts down discussions once they “lose diginity” for lack of better words) 

  23. Contract Lawyer says:

    I will not say where or when,  but I am aware of a medical company but had a scandal when about 15 or 20 of its personnel were given article 15’s because they had breached privacy rules by accessing medical records of other soldiers to see the results of test for STDs. Many of these actions were for the purpose of seeing if someone they were interested in had tested positive for something or they were checking for a buddy or someone who would paid them.  In some cases, they were checking for the soldier who was tested, because the soldier-patient didn’t want to wait for the results.  Evidently at this location, they would require patients to wait until the results were officially available after some set period of time, even though the test results were actually available or maybe they just wanted the patient to wait until a doctor or nurse was available to provide the results.  Of course most of the soldiers in trouble suggested but there’s access to records for this latter purpose but I believe the real purpose of the unauthorized access was to see the STD medical history of potential sex partners for themselves or someone else.  One implication of this new 120 theory is that this breach of other patients’ medical records to verify STD status may be legally justified. I am saying this in jest, but if lying about an STD = 120, then the unauthorized access of medical records to verify a partner’s status seems appropriate.  It would be an act with the intent to parent a potential rape or 120 offense.  Would seem to me the best way to find out about a potential sex partners medical issues is to ask, but the reason all these soldiers got in trouble is that there must be a lot of men and women who lie about this subject.  I bet this unatorizwd access issue is a common practice.
    I’m not sure if it’s still done, but the Army used to mail the results of HIV test and soldiers would sometimes keep a copy of the test results when they went out trolling. 

  24. stewie says:

    So your argument Nathan is that people who don’t know if they have, oh I don’t know, HIV or Syphillis or Herpes or Chlamydia (diseases that can kill you, are incurable, or can render you sterile if untreated), won’t get tested for it, because they are afraid once they know about it, they won’t be able to lie about not having it in order to have sex with others without any criminal consequences?
     
    I’m sorry but I’m struggling seeing how that’s a remotely persuasive argument.
     
    People generally don’t get tested because humans, are primarily giant bags of water and meat surrounding and feeding a giant denial organ in their head, not because they are thinking so far ahead about the future crime they would like to commit without the requisite mens rea.

  25. stewie says:

    CL current Army testing policy is, no news is good news. I got tested during my physical in Feb for HIV apparently and the only way I knew it was happening to see the new date on my MEDPROS when I was looking to make sure I wasn’t red in anything. I’d been previously tested last summer as part of the normal two year cycle.
     
    You only get notified if you tested positive. If you aren’t particularly active, or aren’t doing high-risk stuff, no biggie…I feel for the folks who might have at least some cause for concern because those two or so weeks are probably fraught with Schrodinger’s HIV cat.

  26. Concerned Defender says:

    The absurdity of the UCMJ and expanding 120 offenses continue.  At what point do people really demand the government stay out of our bedrooms?  It’s already gone FAR too far in my view now that we have effectively criminalized sex years later when the female changes her mind and decides it was not consensual. 
    With STDs, as someone above mentioned, do you really want to sit on a panel and listen to the sorted sexual history and bedroom discussions of two or more people?  No thank you.   
    How to prove THIS accused gave THAT person xyz disease?  And prove lack of notice?
    I would think that the complaining witness’s sexual history is going to be quite relevant and bring in HIPPA information from all of that persons’ sexual past.  Let’s say that’s 5, 10 or 20 individuals.  What do those subpoena’s look like?   You’re going to have a trial(s) within trials.  Are they all going to be forced to get HPV or HIV or Herpes or whatever tests?  This seems to open the door to subpoena’s to every sexual partner you and they ever had if you’re involved in the case to trace the origins of that scratchy bump or smelly discharge.
    Next up:  Offenses for =
    “The sex wasn’t good enough or long enough” assault
    “I didn’t like it in that position” assault
    “Orgasm inside me and get me pregnant” assault
    “She smelled really bad there but I went ahead with it anyway even though I didn’t want to” assault
    Ya know, the if the military were really concerned about this issue, they would have an immediately separation for anyone deemed HIV positive.  Instead, you’ll be surprised to learn, as I did a decade ago, there’s about a Battalion or Brigade’s worth of HIV positive Active Duty members in the service.  And, since there is going to be risk of transmission if there’s any emergency situation when you might be a first responder and not gloved up, then you’ll be at risk for HIV (or other blood borne illnesses).  
    Nope, they aren’t.  They just want to expand 120 offenses for the prosecution of a political “sex assault” agenda because there is BIG money and power in it.

  27. Nathan Freeburg says:

    I was specifically talking about the rather substantial population of adults, service members and judge advocates who are carrying an STI/STD vector without having a reaction or symptom. (In other words you might never get sick but could still theoretically infect someone else.) If you criminalize knowing sex without disclosure then you’re incentivizing not testing in the absence of symptoms that need treatment. This is what I said. You’re all engaging with something I didn’t say. 

  28. Concerned Defender says:

    Yes, it is a VERY slippery slope.  How about shaking hands with someone while being aware you are ill with ANY contagious virus?  Say someone you shake hands with or are in contact with – while YOU are ill – has a weakened immune system and gets very ill and is hospitalized or even dies.  Do YOU incur civil or criminal penalties?  That’s the direction this leads… 

  29. stewie says:

    If you don’t know you have an STD then you don’t have the criminal mens rea to commit the crime. No one is suggesting a strict liability offense Nathan so I’m still lost as to what you are trying to argue. If I don’t think I have an STD, I’m probably not going to get tested because,well, I don’t have any symptoms, and that denial arena is a much happier place to be in then the one where I have an STD with no symptoms.
     
    I am not however, not getting tested because I’m worried I’ll have the mens rea by having unwarned sex later. So no one is avoiding getting tested for the reason you suggest is the downside of criminalizing KNOWINGLY having sex with someone while carrying a significant STI without telling them.

  30. stewie says:

    Anytime someone engages in the slippery slope argument, it’s usually a bad sign for their logic train…but CD no one does it as badly as you. Kudos.

  31. Vulture says:

    Slippery slope arguments are usually countered at there inception.  CD didn’t start it.  That was kyle at post one, not post 28.  Also Nathen was the unintended consequences guy, ergo slippery slope. 
     
    Hey, I could get into this defense thing.

  32. Vulture says:

    …their inception…  I meant to say “their inception.”
     
    Anyway, since this was a STI related discussion, as well as the legal ramifications of the unintended fall out, it was ripe for a discussion of the fruits of a poisonous bush… tree… I meant poisonous tree.  Dammit I did it again.

  33. Concerned Defender says:

    I don’t see my example being so far off as to not warrant a specific Art 128 offense of assault/battery or worse for the following fact pattern.
    Major Sickly is an XO in a tip-of-the-spear unit with many relying on him for the pending deployment.  He has been feeling ill for 2 days, but keeps “Soldiering on” as he’s a real hard***.   And, to ensure maximum XO “toughguy-ness” he doesn’t want to call in sick.  It’s the night of the Christmas party, a few days before deployment.  He attends.  He meets and greets many folks, among them is a Soldier’s wife, where he shakes her hand.  Insert your virus and the rest of the fact pattern as you will, but suffice it to say, she gets ill and she dies or loses her baby or whatever due to the common bacteria/virus Major Sickly was carrying and he knew or should have known.  Throw in some “thin skull” arguments, and you’ve got a case ripe for an over-zealous TC to take to trial on an assault, murder, whatever charge. 

  34. former af_dc says:

    OK CD, but the difference between the scenario you posit and this one is that, in your example,  it’s a “should have known” standard and for the STI-specific offense, it’s a “definitely knew” standard. That’s very different. Feeling sick and like you might have a cold when it’s actually Legionnaire’s and you didn’t know it is different from having sex with someone when you KNOW you have HIV, a life-changing, incurable virus.
    Also, factually, you can’t just give someone HIV or other STIs by shaking hands or attending parties together. You have to share bodily fluids or intimate contact. We all risk things like the common cold and noroviruses just by walking around in the world, so criminalizing just walking around with a virus or bacterial infection is nonsensical as it would mean most of us are criminals. But it’s not hard to avoid HIV, and it’s not hard to avoid giving someone HIV. That’s another important difference.
    I actually agree there should be a specific offense for having unprotected sex with someone without telling them of your HIV+ status, but it needs to be CAREFULLY written. And Congress is, historically, not great at that. 

  35. k fischer says:

    The irony is thick my friends! 
     
    In a post about case where three appellate Judges affirmed the conviction (from a guilty plea, no less) of an Article 120 offense where a Trial counsel creatively drafted a charge to address the seriousness of the offense because Guittierez held that you can’t convict an HIV+ accused of Aggravated Assault when the sleep with someone anymore, people are actually mocking those who bring up slippery slope hypos and accuse THEM of not exercising logic.
     
    I better go put an extra layer on my tin foil hat………after I mention that I agree with former af_dc and Stewie’s original point that Congress should draft a carefully written Article that deals with this issue in order to prevent this slope from becoming any slippery-er…….

  36. Duderino says:

    former AF_DC – I’ll once again reiterate an important fact. It’s people that do NOT know that they have HIV that spread the virus. Those who do know almost exclusively Exeter into treatment and achieve an undetectable viral load which is now as much as can be possibly be scientifically proven that they cannot  transmits the virus. Effectively equating the sharing of bodily fluids to a “handshake”.  (The CDC based on over 75k comdomless sex acts in scientific studies without transmission now say that the risk of unprotected vaginal intercourses with someone that has HIV with an undetectable viral load is effectively zero  ie the same as shaking hands  
     
    so if the risk during sex is the same as shaking hands then requirement for disclosure shoukd also be the same  
     
    Thats why I adamantly adopt the Canadian Supreme Court rationale – “in order to vitiate consent given  without disclosure there must be a realistic chance of transmission. “
     
    The way their law is applied now is that if DEfense can show that there was not a realistic possibility of transmission then there is no chargeable offense.  If however the person was capable of transmission and did not disclose there IS a chargeable offense. 
     
    The laws must take take into account actual medical knowledge and not be subdued by the illogical fear that has surrounded HIV since its discovery. I’m not saying all of the fear was illogical but there was and is a lot of illogical fear that still exists about HIV. That’s why it’s important tonrely in facts. And the fact that someone might get upset Bc they don’t know that there was an essentially zero risk of transmission doesn’t overcome the fact that there actually was in most cases a essentially zero risk of transmission. 
     
    Thats why the slippery slope argument is so easily applied in the logic train.  Because when the risk is zero for one thing and that becomes a legal way of removing consent post act, then it opens the door for a plethora of other omissions or false promises that also had zero risk of actual harm to do the same. 
     
     
     
    Its this simple. You have a duty to tell someone if they might be putting themselves at risk. If they’re not actually at risk then there is no legal duty. (according to the Canadian Supreme Court)

  37. Duderino says:

    The cool thing about designing the laws that way is that:
    1. it actually encourages people to adopt safe behaviors that don’t put others at risk (remaining in treatment. Usually 1 pill a day and 3-4 lab draws per year) 
    2. It doesn’t “disincentivize” people to not know their status due to legal mens rea that that knowledge currently creates (although I still don’t think anyone avoids testing Bc of it, the avoid testing Bc people naturally tend to avoid “bad news” like that)
    3. It allows for prosecution of people who do put others at risk
    4. It adopts current medical knowledge as well as leaves room for future changes in medical knowledge to apply to the law. 
    5. It treats sex the same as other contact. Based on actual risk of each contact. 
    6. It allows for service memeber couples in which 1 person has HIV to legally have condomless sex (current safe sex orders disallow that) which lets them have their Lawrence v Texas rights restored not only for the inimacy of love making but also for natural procreation of which they are currently denied even though their treating physicians often advise non-military patients that it is safe to do so. 
     
    Its the right thing thing to do to tell. But if there is no risk than it shouldn’t be a legal duty and chargeable offense. And much like any other 120 situation this is something that people will use to manipulate and seek vengeance against former lovers. (Ask me how I know)  just because you told them doesn’t mean they won’t come back later and say you didn’t.  
    Last year an AF E4 told his partner through text prior to engaging in sexual activity and he was STILL convicted because he didn’t “verbally inform” as the safe sex order spelled out. Ludacris!!

  38. k fischer says:

    I seriously believe that if you apply the same logic that the NMCCA did in Forbes to a situation where PVT Joe gets PVT Suzie pregnant  during intercourse where Suzie lied and said she was on the pill, then PVT Suzie committed an Article 120 offense.  And, the ramifications, while not as dire as being HIV+, still are pretty bad when you consider that PVT Joe is going to be subjected to 18+ years of financial slavery supporting a child he did not choose to have. 
     
    And, it would apply to “stealthing” by a male.  Btw, has anyone heard of a male Servicemember being charged under Article 120 for stealthing?

  39. stewie says:

    This whole shaking hands thing is beyond ridiculous.
     
    1. Precious few idiots think you can get HIV from shaking hands, and if I found out someone who’s hand I shook had HIV, it would affect me not one whit other than feeling bad for that person to have that life-long illness to deal with.
    2. If, on the other hand, I found out I had sex with someone who LATER told me they had HIV, I’d feel pretty differently about it. Yes, IF their viral loads are low enough THEN they cannot transmit the virus. In the meantime, I guarantee you the doc is going to recommend that I get tested for HIV. They aren’t going to recommend that after a handshake, or a kiss, or a sneeze.
     
    So yes DUDERINO, I concur that at a minimum, if the person was capable of transmitting and had knowledge of their status and hid it, then it’s easy to think of criminalizing that behavior. I would propose however, that intercourse with the exchange of bodily fluids is leagues different than all of the other ridiculous slippery slope arguments being passed along thus far in quality.
     
    The only “slippery slope argument” I’ve heard with any merit is “stealthing” which I do think should have some minor criminal sanction.
     

  40. Duderino says:

    Very true Stewie, I’m sure almost everyone would feel very differently. That’s an ***hole thing to do.  
    Yet, on a risk chart (thanks to modern medicine advancements) the actual risk is not much different in most but not all situations. 
     
    Here is an actual real world scenario that happened just food for thought. Individual male with HIV but undetectable meets girl  they start to date. Male tells female of HIV status. Female does some research and and agrees to condomless sex (so far so good right) Several weeks later male is contacted by females ex bf and is informed by him that the female has Herpes. When confronted the female verifies that it is true and when asked why she didn’t tell she says,” I just didn’t want to” 
     
    So in this scenario there was “essentially zero” risk of her being infected with HIV per the CDC, yet there was a substantial risk that the male could have been infected with a “lifetime incurable disease.” Now I know that HIV and Herpes are big oranges compared to little oranges, however, wasnt that just as much of an ***hole thing to do?   Why is the one illegal and not the other, especially when the risk of herpes transmission is a lot higher and down right probable over time. 
     
    More relevant to the actual case at hand. I am almost for 100 percent sure that the three women all knew that unprotected sex involved a risk of acquiring any and all STDs, HIV included, unless they’ve been living under a rock for 30 years. And if this man was undetectable, the actual risk of them getting HIV from him is lower than gettingbit from someone that is sexually active but hasn’t been tested.   That’s where the logic fails. The laws are not concentrated on activities that actually transmit the virus, which IS the intent of them right???
     
    yes people should disclose about HIV, herpes, HPV, all of those, it’s a crappy thing not to do, and if someone is putting others at a risk and not telling them, then by all means charge them, but if they weren’t putting them at risk then it’s back to the same level at least as the other stds if not lower since they actually won’t get it.  
     

  41. stewie says:

    I think the herpes scenario SHOULD result in some minor criminal sanction. They should both be illegal.
    I don’t think it’s just about sanctioning actual transmission, and I think while we can agree that, for example, the risk of HIV in that scenario (low viral loads) is not remotely high enough for assault with the intent to cause GBH, or for a sex assault, I think anyone having sex with someone else, knowing they have a serious or incurable disease (or a disease that if untreated can cause infertility) and hiding that, has committed an act worthy of low-level criminal sanction…yes, even if the scientific belief right now is “they can’t cause the disease.”
     
    Because viruses mutate, and viral loads change, and the mental stress of finding out you had sex with someone with HIV or Herpes or whatnot is real and it’s legitimate.  Again, it may be a very low level criminal sanction, but we sanction lesser conduct. We penalize simple assault (without a battery) even when there is no contact and no physical harm. Why? Solely because of the fear generated. How is this any different?

  42. Concerned Defender says:

    Stewie does raise an excellent point and I’m swayed to agree.  We criminalize far lesser offenses, such as assault where there’s no contact and just a reasonable fear.  I guess as a general intent crime.  However there’s still a slippery slope… is a male not in “fear” when he learns the woman lied about taking birth control and is now pregnant?  Or she is really married and lured him into committing adultery?

  43. Duderino says:

    That argument is very compelling. And not as a counter but rather to further develop it. When using the based on fear logic. A couple ideas  come to mind:  not everyone’s knowledge/fear scale is the same.  Ie many in the gay community are aware that undetectable hiv is nothing to be afraid so would that same fear apply to them? Or say a person was in a previous relationship with someone with hiv and never acquired it and as such Had no discernible fear.   On the other hand others may even after presented with eveidence BRD of one thing or another may still harbor immense fear.  
     
    Also about fear: the  facet of an argument could be made that not telling a partner actually was “an” action that prevented fear (ignorance is bliss right) but only holds water when risk is “essentially zero”. 
     
    As for viral mutations and  remaining consistently undetectable. Viruses can mutate and HIv certainly does.  Some strains are even drug resistant which opens the idea that if a person knows they are infected with a drug resistant strain and aren’t undetectable, well then, that probably does reach the two prong test of means likely for an aggravated assault pre Gutierrez.  
     
    However, the majority of viruses aren’t drug resistant and once undetectable that’s where people remain.  “Viral blips” are known to occur, characterized as interment return of detecatbiliyy of the virus but not a resurgence of the virus.  In the light of that I offer that the scientific studies which tracked the 75k condomnless sex acts considered undetecability at 200 copies or less.  That level was chosen because it exceeded the vast majority of viral blips that do occur. (Side fact- HIV viral loads aren’t used for diagnostic purposes because a significant amount of the population register in these tests  a cold, being pregnant, or a recent vaccine cause HIV viral loads to register a number   
     
    Fear again: the fear that exists is largely based on the fact that most people don’t know the current medical facts about HIV.  It’s not their fault that they don’t know.  And now here we have all of this evidence that shows that it’s essentially zero risk of transmission for undectable people HIV having sex. Well that’s great news, especially on the personal relationship level it allows couple to safely have intmacy and have children together.  An intimate partner/significant other is usually willing to investigate and usually based off of the information they find (the studies I refer to) and advice of doctors learn that there is an essentially zero risk.  Many that are in love with a person with HIV  would even accept a higher risk.  
     
    So in this situation one would say that the Laws allow for and promote this exact thing to happen.  But I say in response that these people would do this anyways. people transmitting the virus are almost exclusively the ones that don’t know they have it, they have extremely high viral loads and are very contagious. Yet these laws aren’t even applicable to them (emphasis added) 
    what the laws do do (haha) is criminalize a heck of a lot of behaviors that carry essentially zero risk of transmissions and have never been medically documented to even transmit HIV.  THIS DOES NOT hold water. 
     
    Thats why why I said “civil rights:liberties” violation in my first comment.  The laws by themselves create an “us and them” a majority telling an underrepresented class of voters that their liberties are restricted. That there is a brand new way for them to commit rape in the case at hand.  That in many states even if they disclose they have to wear a condom even if both partners don’t want to.  That there are people sitting in prison for DECADES as I type this for actions that carried essentially zero risk of transmission (sorry I know I’ve said that over and over) that’s just wrong.  So yeah, when a person can be inprisoned for laws based on irrational fear, passed by legislators voted in by electorates in which that sub group of “them” is unrepresented it’s a civil right/liberties issue.  It’s a strict scrutiny  issue.  It’s easy for the majority to find people to agree with themselves.  But the walls on the inside of the fence look a lot different then they do from the outside. When doctors and science say something is safe and the government says your rights and liberties are still different anyways Bc we said so or what if, it’s different   Which might hold worthy if it weren’t for the fact that it’s mostly people that don’t know they have it that spread it   
     
    *** I just want to say thank you for anyone that’s read and considered my comments on this topic to this post. 

  44. former af_dc says:

    Duderino, I think those are all pretty good points — at what point is all of this less about the actual transmission of HIV and more about the fear of transmission? And yet I think that the possibility of transmitting a known deadly infection to someone — one which will kill you if not treated and managed — requires the carrier of such a disease to tell his or her sexual partner about it before sex, even if the risk of transmission is very low. Because as Stewie says, virus loads mutate, and the virus can change, and the protocol that is working great for you today might be crap tomorrow. And even if you’re taking your meds everyday, what if you forget? Or you get a stomach virus and puke them up and don’t realize your HIV load is increasing? (Note that I am not a medical professional and not at all sure that’s how that works, just guessing.)  So I think sexual partners of HIV+ people deserve informed consent, and that a carefully written article wouldn’t go amiss here. I emphatically DO NOT think, however, it’s a good idea for military courts to try to shoehorn that offense into the normal 128, for obvious reasons. 

  45. Duderino says:

    thank you former dc …I try remain rational versus emotional about the topic.  —  Gutierrez was a logical step in that it dropped the act to a misdeamneor vs felony for a 1 in 500 chance.  ( Gutierrez involved a swinger couple and it was multiple charges. One of the partners even said that they still would’ve consented with disclosure but that charge was also affirmed, just interesting) .  However it was illogical the they invented “meaningful consent” doctrine.   Here, this zealous prosecutors actions will likely, well hopefully, rather, allow caaf to clarify and sure up the logic and legal ramifications of Gutierrez.  
     
    If you do find the time to read it, the  Candian Maboir 2012 slip op nails it with the “actions with a realistic chance of chance transmission” rule. Ie not a theroretical what if the virus changes, viral loads, had a cold, missed dose etc … that’s other than the fact they of them keeping it in the sexual assault arena) IMO. 

  46. stewie says:

    Let’s be more technically correct then, because it’s not even fear, it’s merely apprehension. Point is, we can treat it just like simple assault, with the same low level punishment yet still a crime.

  47. stewie says:

    I’ll also object to the argument that the only folks facing issues are those who haven’t been tested.
     
    There are the following groups of people involved here:
     
    Group 1 Not tested but don’t have the virus (HIV, Herpes, what have you)
    Group 2 Not tested, have the virus, but don’t know it
    Group 3 Not tested, have the virus and know it
     
    Group 3 is the only group on the hook here. Group 1 hasn’t done the actus reus, Group 2 doesn’t have the requisite mens rea.
     
    Now neither you nor I know the percentages of folks who are in group 2 vice 3 and infect someone. We can make some educated guesses, but we don’t know. But even if group 3 is the smaller of the 2, it’s quite alright to criminalize it. Group 2 may cause more harm but we rarely criminalize U

  48. stewie says:

    to finish…unintentional acts.

  49. Duderino says:

    Does someone with hiv that’s undetectable and Has been told by licensed treating physician that undetectable means intransmittable have  mens rea?
     
    group 3 (if on treatment) does not possess the means possible to transmit.
    group 2 does have the means to transmit the virus as well as  members of group 3 whose treatment does not or has not yet reached under 200 copies per 5ml.
    Leaving group 3 without effective treatment as the ones with both mens rea and actus reus = criminal culpability without disclosure and without effective condom use (in my view)
    Correct no one knows the exact numbers, but the exact numbers are not needed.  However empirical studies do indicate that individuals with acute HIV infection (8 days – 2 months post exposure) are 8.5 x more likely to transmit the virus via sexual intercourse than those with an established untreated infection.  During primary infection viral loads often peak at millions of copies per 5ml of blood serum enabling highly efficient viral transmission.    After treatment levels fall to be low detection which is 20 or 5 copies depending on the test  . The virus remains in latent reservoirs that would regain traction if daily treatment is stopped.  
     
    Whereas:
    Sexual Transmission
    “People living with HIV who take HIV medicine as prescribed and get and keep an undetectable viral load have effectively no risk of transmitting HIV to their HIV-negative sexual partners.”
    directly from CDC website May 22, 2018: https://www.cdc.gov/hiv/risk/art/index.html
     
    If we were lucky enough to have specific statutes written I would support them to require medically relevant up date verification of: verified undectable lab results, pharmacy records of prescriptions being filled (if dr prescribed . Ie small subset of HIV infected people achieve and maintain undectable without meds) etc   
    I support that because that incentivizes responsible beahoviors that inhibit the  spread of the disease and remain in treatment    Achieving “no realistic possibility of transmission” the way Canada does it   But Canada also worded the decision to allow for relevant current future information to determine what realistic possibility of transmission means. That sword cuts both ways.  Future treatment could get better or the virus may begin to gain ground against current treatment.   
     
     
     I do not think putting others at actual risk is acceptable without disclosure and by all means should be criminally chargeable.
     

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