Opinion Analysis: The failure to inform sexual partners about HIV-positive status makes the sexual acts non-consensual, in United States v. Forbes
CAAF decided the Navy case of United States v. Forbes, __ M.J. __, No. 18-0304/NA (CAAFlog case page) (link to slip op.), on February 7, 2019. The court unanimously affirms guilty pleas to three specifications of sexual assault by causing bodily harm based on the appellant intentionally hiding his HIV-positive status from his sexual partners.
Judge Sparks writes for a unanimous court.
Aviation Maintenance Administrationman Second Class (E-5) Forbes pleaded guilty to various offenses, including four specifications of sexual assault by causing bodily harm (in the form of a non-consensual sexual act) in violation of Article 120(b)(1)(B) (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.”).
74 M.J. at 68. The Navy-Marine Corps CCA applied Gutierrez to affirm Forbes’ guilty pleas in a published decision. United States v. Forbes, 77 M.J. 765, 769 (N-M Ct. Crim. App. 2018) (discussed here). CAAF then granted review of one 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.
In today’s opinion Judge Sparks clearly explains that the guilty plea in this case is entirely proper because “true consent must be informed,” slip op. at 4 n.4, and therefore:
Appellant committed a sexual assault each time he had sexual intercourse with one of the victims without first informing her of his HIV status and thereby lawfully obtaining her consent to the intercourse.
Slip op. at 4.
Congress repealed Article 120(b)(1)(B) (2012) in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.” CAAF’s holding in this case will almost certainly apply to that new offense.
• 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
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis