The NMCCA applies Gutierrez to affirm a conviction of sexual assault for failure to inform a sexual partner of HIV status
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,  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.