CAAF to review whether failing to inform a sexual partner of HIV status before engaging in an otherwise-consensual sexual act is sexual assault
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,  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Congress repealed the offense of sexual assault by causing bodily harm under Article 120(b)(1)(B) (and the related definition of bodily harm in Article 120(g)(3)) was repealed in Section 5430 of the Military Justice Act of 2016, however Congress simultaneously created a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual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,  2 S.C.R. 371, 372 (Can.))).