On Monday CAAF granted review in this Navy case:

No. 18-0304/NA. U.S. v. Lamar A. Forbes. CCA 201600357. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE NAVY COURT ERRED IN HOLDING THAT APPELLANT WAS PROVIDENT TO SEXUAL ASSAULT BY BODILY HARM DUE TO HIS FAILURE TO INFORM HIS SEXUAL PARTNERS OF HIS HIV STATUS.

Briefs will be filed under Rule 25.

The NMCCA issued a published opinion, 77 M.J. 765, that I analyzed here.

The appellant – Aviation Maintenance Administrationman Second Class (E-5) Forbes – pleaded guilty to various offenses, including four specifications of sexual assault by causing bodily harm in violation of Article 120 (2012) that were related to Forbes intentionally hiding his HIV-positive status from his sexual partners. The theory that failure to inform a sexual partner of HIV status constitutes bodily harm was based on CAAF’s  holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), in which the court unanimously held that:

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. I assisted in drafting a petition for reconsideration that asked CAAF to reconsider the issue of consent and its reliance on Canadian law, but the court declined to do so at the time.

Congress repealed the offense of sexual assault by causing bodily harm under Article 120(b)(1)(B) (and the related definition of bodily harm in Article 120(g)(3)) was repealed in Section 5430 of the Military Justice Act of 2016, however Congress simultaneously created a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual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.” My read of the NMCCA’s decision in Forbes is that it will apply equally to the new offense, because it is based on CAAF’s judicially-created requirement of meaningful informed consent:

Therefore, Gutierrez’s conduct—engaging in otherwise-consensual sexual activity without telling his partners that he had HIV—included an “offensive touching to which his sexual partners did not provide meaningful informed consent” because “‘[w]ithout disclosure of HIV status there cannot be a true consent.'”

Forbes, 77 M.J. at __ , slip op. at 5 (quoting Gutierrez, 74 M.J. at 68 (quoting R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.))).

9 Responses to “CAAF to review whether failing to inform a sexual partner of HIV status before engaging in an otherwise-consensual sexual act is sexual assault”

  1. stewie says:

    It’s certainly assault consummated by battery in my book. Sex assault still feels a bridge too far because it opens the door to whether it applies to all STDs? I mean some women wouldn’t consent to any STD, even ones that are either curable or unlikely to cause any significant long-term issues (or even symptoms at all).
     
    SOR is a big deal. Will be interesting to see what the court rules and then what possibly expands out of it.

  2. Contract Lawyer says:

    What if you don’t tell a partner that you have some other ailment?  Or, what if your partner asks about a specific issue, such as whether you have had any illnesses or colds in the last week and you like and say you didn’t?  Or perhaps you have gray hair and you dyed it or lied and said that this was your natural hair?  You lied about your weight and waited until the lights were out to undress?  You knew your partner was looking for someone with a particular astrological sign and you lied and said yours was Aquarius?  You told your partner that you love them?  Your partner asked you if you loved them and you said YES, but you don’t really love them?  Even though you don’t love them, you don’t admit to it and continue to lie and say that you really did love them.  CID asks you to take a polygraph.

  3. Lone Bear says:

    Another day without Barry, split on the court? 

  4. AnnoyingProle says:

    I prefer to look at it is a 128 because to me, the gravamen of the crime is the exposure to a physical harm–not a sexual violation.  And that also avoids most of the consent-by-lie or trick concerns of Contract Lawyer.

  5. stewie says:

    CL you understand that all of your hypos are qualitatively/quantitatively different from HIV exposure right?
     

  6. Contract Lawyer says:

    Stewie – Yes, the HIV exposure appears to hinge on the fact that an infected person does not inform the sex partner and many of my hypos relate to lying or boasting in order to impress the opposite sex.  The exposure may be distinguished from when the infected person is asked about HIV or represents being HIV neg.  I took it further to the implication of a lesser infliction such as the common cold and then went to issues such as covering up gray or wearing loose clothing to cover up excess body fat until reaching the safety of the lights being turned off.  For the most part, my competence of this is not a big issue as my TDS days are long over, but the direction of military justice in some areas is troubling and if any of my hypos or parodies hits a chord and causes more lawyers to think, then it is worth a brief discussion.  CL

  7. stewie says:

    I just don’t find extreme hyperbole to be particularly useful, because no, they don’t hit a chord. Literally none of those things has ever or will ever happen.

  8. Mary says:

    It never said if he was undetectible, because if the individual is undetectible then they do not need to disclose because they can not spread the virus. However, if he is not undetectible and failed to disclose then that is mandatory jail time. I did not read the other comments and I apologize if this was already covered.

  9. Robert Feldmeier says:

    There is another issue is this case – the record of trial (Pros. Ex. 1) indicates that the appellant’s viral load was undetectable because of his successful treatment with anti-retroviral medication at periods which included the dates of the alleged sexual assaults.  According to the CDC and Surgeon General, it was impossible for him to transmit HIV and likely had no amount of HIV in his bodily fluids.  https://www.cdc.gov/hiv/library/dcl/dcl/092717.html
    Whether he was provident, then, to sexual assault or assault when the record of trial contains a defense inconsistent with the plea… we will see.