Argument Preview: Reviewing a guilty plea to sexual assault based solely on the failure to inform a sexual partner of HIV status, in United States v. Forbes
CAAF will hear oral argument in the Navy case of United States v. Forbes, No. 18-0304/NA (CAAFlog case page), on Tuesday, December 4, 2018. A single issue questions whether a guilty plea to sexual assault should be reversed:
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.
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. Applying Gutierrez to Forbes’ guilty plea the Navy-Marine Corps CCA explained:
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.'” Id. (quoting R. v. Cuerrier,  2 S.C.R. 371, 372 (Can.)).
Here, in explicit reliance on the CAAF’s holding in Gutierrez, the government charged the appellant with both assault consummated by battery in violation of Article 128(a), UCMJ, and sexual assault by bodily harm in violation of Article 120(b)(1)(B), UCMJ. In a bench memorandum, the trial counsel explained that since “failure to disclose an accused’s HIV status constituted an offensive touching because the accused’s partners did not provide informed meaningful consent, ‘the appropriate charges would be either 1) sexual assault by bodily harm; or 2) assault consummated by battery.'”
United States v. Forbes, 77 M.J. 765, 769 (N-M Ct. Crim. App. 2018) (discussed here). The CCA also noted:
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.
77 M.J. at 772 n.20. Now CAAF will determine if that’s correct.
Forbes’ brief is, well, brief. At less than 10 pages long (including certifications of counsel), it focuses on the issue of causation:
A person is guilty of sexual assault when he commits a sexual act upon another person “by causing” bodily harm to that other person. MCM pt. IV, para. ¶45.b.(3)(b)(i). Courts routinely construe phrases such as “by causing” or “results from” as requiring actual causation. Burrage v. United States, 134 S. Ct. 881, 888 (2014). Here, Appellant’s alleged offensive touching was not a cause precedent to the sexual act. Therefore, he did not commit a sexual act “by causing” bodily harm because the alleged touching with the HIV virus did not cause the sexual act.
Appellant was not provident because he did not explain how any alleged touching with the HIV virus caused the sexual acts at issue. . . . Appellant did not explain how touching any victim with the HIV virus could cause that victim to engage in a sexual act. It is inconceivable how anyone could ever explain such a causation. Although the government claimed that an offensive touching with the HIV virus occurred simultaneously with the sexual acts at issue, such coincidence is insufficient to constitute the offense. Both the text of the statute and the elements of the offense require that the alleged offensive touching cause the sex act. Appellant did not explain, nor did the government allege, how the sex act’s occurrence was dependent upon HIV allegedly present in his body fluids. Indeed, it is impossible to fathom how one could cause the other. Therefore, Appellant was not provident to Charge II, Specifications 1, 3 and 4 because he did not explain how the supposedly present in his bodily fluids HIV caused a sex act to occur.
App. Br. at 3-4. The Government Division’s response addresses this argument in a few ways.
First, the Government Division highlights that causation is a factual question of guilt and “a plea of guilty that results in a finding of guilty ‘waives any objection’ as it relates ‘to the factual issue of guilt of the offense[s] to which the plea is made.'” Gov’t Div. Br. at 9 (quoting R.C.M. 910(j)). Accordingly:
Appellant’s argument now that he could have more extensively “explain[ed] how any alleged touching with the HIV virus caused the sexual acts” contradicts his explicit Providence Inquiry and Stipulation admissions that he committed the sexual acts “by causing” bodily harm to each Victim. (Appellant Br. 4; J.A. 83, 86, 305; R. 116, 119.) Because this factual claim contradicts his pleas, this argument is “foreclosed” to Appellant. Broce, 488 U.S. at 576.
Gov’t Div. Br. at 10.
Next, the Government Division tackles actual causation, observing that:
Appellant was properly informed of every element of the statute and the statutory definitions for bodily harm and consent. (J.A. 75-76.) After consultation with his Defense Counsel as to these two terms, he agreed his conduct satisfied these elements, and pled guilty to sexual assault. (J.A. 83-84.) Appellant admitted none of the women would have had sex with him had they known he was HIV positive. (R. 305.) Appellant agreed he informed no Victim he was HIV positive. (J.A. 83, 250-53.) He agreed that failure was “wrongful” and “unlawful.” (J.A. 83, 250-53.) The Providence Inquiry, Stipulation of Fact and Appellant’s own statements establish that his failure to inform the Victims “caused” the “offensive touching.” Appellant repeatedly agreed that his actions, failure to inform, caused the “bodily harm.” (J.A. 79; 83-84; R. 116, 119, 305.)
Gov’t Div. Br. at 14-15. Those admissions, of course, are the whole reason Forbes was convicted.
The Government Division also rejects Forbes’ characterization of the causation issue:
Article 120 permits charging sexual assaults where a person “commits a sexual act . . . by—(b) causing bodily harm.” (See II.C, supra.) Bodily harm includes nonconsensual sexual acts. Art. 120(g)(3). And “consent” requires “freely given agreement” and is assessed by “all the surrounding circumstances.” Art. 120(g)(8). This Court has held that “the statutory phrase ‘freely given agreement’ reflects the voluntariness aspect of consent.’” United States v. Pease, 75 MJ 180, 185 (C.A.A.F. 2016).
Although Appellant now argues that the “offensive touching” at trial was more appropriately “touching with the HIV virus” rather than the nonconsensual touching he pled to at trial, he points to nothing in the statute that requires this. (Appellant Br. at 4.). . .
Finally, Appellant points to nothing in Gutierrez or his Providence Inquiry or charges that demonstrate any substantial basis to dispute his admissions at trial as to what the “bodily harm” was. Gutierrez held the offensive touching was “his sexual partners did not provide meaningful consent.” 74 M.J. at 68. Gutierrez never mentioned “touching with the HIV virus.” (Appellant Br. at 4.) Nothing in Article 120 requires the bodily harm be “touching with the HIV virus.” Appellant’s argument should be rejected.
Gov’t Div. Br. at 17-18. It adds:
Even accepting Appellant’s strained theory on appeal that Article 120 could only be satisfied by bodily harm through literally “touching [the Victims] with the HIV virus,” the sexual act that transpired after the initial “touching with HIV” was indisputably involuntary, nonconsensual, and a direct result of the initial “touching.” Any other reading of Article 120 would preclude prosecuting sexual assaults resulting from nondisclosure of infected status, and would lead to an absurd result. (Appellant Br. at 4-5); Lewis, 65 M.J. at 88.
Gov’t Div. Br. at 19. Precluding prosecution for sexual assault based solely on nondisclosure of HIV status, however, may be exactly what CAAF will do. After all, in Gutierrez the court observed that “the law should not adopt a sui generis standard in cases involving HIV exposure.” Gutierrez, 74 M.J. at 67.
• NMCCA opinion
• Blog post: NMCCA opinion analysis
• Blog post: CAAF grants review
• Appellant’s brief
• Appelllee’s (N.M. App. Gov’t Div.) brief
• Appellant’s reply brief
• Amicus brief in support of Appellant (OutServe-SLDN, Inc.)
• Blog post: Argument preview