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, [1998] 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Congress repealed Article 120(b)(1)(B) (2012) in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new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.

Case Links:
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

16 Responses to “Opinion Analysis: The failure to inform sexual partners about HIV-positive status makes the sexual acts non-consensual, in United States v. Forbes”

  1. Tami a/k/a Princess Leia says:

    If “true consent” that is “fully informed” is now the standard, then guys need to be aware, the next time a woman claims to be on birth control, but isn’t, the guy has been sexually assaulted.  If she is asked, “do you have a boyfriend,” and she falsely says no, that’s a sexual assault.  Any little lie, if it was a major issue to a participant, now forms the basis for a sexual assault.

  2. Vulture says:

    There might be more effective ways to ridicule this opinion Tami.
    e.g.:
    1.  Gagging on a fellatio induced ejaculation can be considered an assault because of failure to inform of specter gunship levels of semen.
    2.  Bruising on the the inner thighs after sex can be considered an assault because of failure to inform of bony hips.
    3.  Bite marks on a breast can be considered a sexual assault because you failed to inform that your Freddie Mercury dentures were held in with day old paste.
     
    The previous discussion around this opinion addressed mostly the type of harm of HIV.  Didn’t we have harmful STDs before HIV?  I don’t necessarily disagree with the Courts opinion.  But using this disease as a boogeyman the same way that the Court addresses sobriety is lame.

  3. charlie Gittins says:

    So, a married guy goes to a bar.  Takes off his wedding ring and tells a bar cutie that he is un-married.  They go have sex.  Is is now a crime of non-consensual sex?  Is that really what this means?  If so, the Navy is in deep trouble for all those med-cruises, west pac, etc.
     

  4. (Former) ArmyTC says:

    No Tami, No Charlie. Just no. I can’t tell if you are unable to read the opinion itself or just unwilling because it fits your narrative better. At least I can tell Vulture is being facetious. Why do I say that? Because I actually read the analysis on fraud in factum vice fraud in inducement.
    You two either didn’t, or chose to ignore it. 
    When you wonder why uniformed counsel consider CDCs a joke, read the comments here. 

  5. Concerned Defender says:

    This is sort of a caveat emptor situation.  There are inherent risks of having sex with strangers.  It seems to me the correct assessment is a form of comparative negligence; I.E. whether failure to inform was an omission versus a lie when asked, and whether the “victim” asked about or demanded some proof of health before sex. 
     
    Should be a balancing test in my opinion.  Did she ask?  Did she demand a condom be used to essentially eliminate any possible risks?  What precautions did she take?   Did he lie or simply omit the information?  Is there a duty to inform of every possible material piece of information before sex?  Number of partners, names of partners, any or all potential disease exposure, whether birth control will be used and what level of effectiveness, and a myriad of other pieces of information.
     
    Of course HIV is extremely serious.  However, it’s a completely known risk in society, akin to the known risk of a car accident if you are riding in a car.  Or risks of not reading a contract before signing (i.e. not becoming informed on material terms).  But once again, as usual, this seems to be yet another case of a war on men and holding men entirely responsible for the bad decision making of women.  FOUR women jumped into bed with this guy without so much as inquiring about his HIV status or asking for proof.  And yet he bears all the blame and responsibility for his omission.  Yes, he’s a creep and I’m not defending his actions, but what does this say about these FOUR women who acted so casually with a man who potentially has HIV or other viruses??   It does in fact take two to tango…

  6. Concerned Defender says:

    I’ll add that this does open the door for any number of odd defenses or offenses.  Defenses against paying child support.  “She told me she was on birth control which was a lie, and I do no consent to the sex, so I was raped and should not be liable for child support.”  Or, the person couldn’t have committed adultery because s/he was lied to about the marital status of the other, and was therefore raped having not consented to adultery.  And so forth.  Some could be very creative.  And this just seems to be muddying the clarity of the law and adding to the workload of everyone involved… 
     
    That’s precisely what we get with an opinion that ignores common sense of inherent risks of sex with strangers but instead mandates full and total disclosure of all material facts prior to sex.

  7. muad'dib says:

    love the caveat emptor rationale
    similarly, if I feed you food that has a 1% chance of poisoning you, and I don’t tell you about it, you can still consent into eating that food. it’s a known risk that I might poison you! did you ask if the food was poisoned? do you eat food every day? how much of a food-slut are you?

  8. Zachary D Spilman says:

    I encourage you to read the petition for reconsideration in Gutierrez, (Former) ArmyTC, available here.

  9. stewie says:

    I think there’s an easy fix for this. Create a new regulation/punitive policy that requires all active duty servicemembers to disclose their HIV status to prospective dating partners. Or heck, create a new offense “failure to disclose HIV status to prospective sexual partners.” You can put a reasonable punishment on it without dealing with sex assault and the tricky issues of informed consent.
     
    The problem here is that few folks think this is conduct that’s non-criminal, although apparently some are, but there are difficulties with placing it under the sex assault rubric.

  10. jagaf says:

    Re your comment, Stewie: we’ve been taking that approach in the Air Force for a number of years and folks have been successfully prosecuted for orders violations for failing to inform partners of their status. Do the other services not do something similar?
     
    Attachment 13 in the link below is the template order.
     
    https://static.e-publishing.af.mil/production/1/af_sg/publication/afi44-178/afi44-178.pdf

  11. Duderino says:

    Biggest failure in CAAFs current Guttirez rationale is that the very Canadian ruling that was used to create HIV “meaningful consent” doctrine has since been overruled itself in  Maboir https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/10008/index.do 
    In Gutierrez, the testimony of experts was that there was a 1 in 500 chance of transmitting the virus during unprotected vaginal intercourse.  And that there was a negligible chance for transmission during oral sex. CAAF dropped the aggravated assaults to to assaults for the specifications with vaginal intercourse based off of the “meaningful consent” theory that 1 in 500 chance requires disclosure and held no convictions for oral sex based off of the risk being “negligible” which requires no disclosure.
    it is now widely enforced by the world health organization and the CDC that even unprotected vaginal intercourses is virtually impossible to transmit if the person is on treatment. https://www.cdc.gov/hiv/risk/art/index.html (emphasis added!!!!)   So even applying the facts and theory of Gutierrez to this case, with current known transmission risk numbers, consent was not vitiated by lack of disclosure of the accused was undectable.
     
    People that know their HIV + status take medication and become uninfectious  so they are not the ones that actually transmit the virus   The people who do not know they are infected and are not treated are highly contagious.  Yet the laws only apply to the ones whom, for the most part, are not even capable of transmitting the virus. Why? Bc In 1990 Ryan white aids funding was only available to states that first made hiv transmissions prosecutable.   And the laws have not been updated with the science and medical advances.  And also fear and animus.
     

  12. Fisch says:

    (Former) ArmyTC, 
     
    I have a hunch that at some point in the near future some weak TC is going to be forced to cow-tow to a crazy victim who comes up with some crazy theory like Charlie and Tami outline above based on this opinion out of fear that the vic will run to POD or Senator Gillibrand.  I only speak from experience from some of the bs sex cases I’ve seen or read about at Courts-martial in the past 4 years. 
     
    I’m with Stewie.  What the appellant did should be criminal, but Congress needs to criminalize this conduct with a specific crime under the UCMJ.  Because I really don’t see how having HIV caused them to consent.  The Court says that any touching without truly informed consent is and “offensive touching,” then does that meet the criteria of bodily harm that causes the sex act?  What does the benchbook say?
     
    And, as a CDC, who like most CDC’s spent some time as a uniformed attorney, I’m pretty sure some of those TC’s and SVP’s against whom I got acquittals or dismissal of charges thought I was a joke, but I really don’t give a flying flip about their opinion.  The important opinion is whether those clients think that I’m a joke, and I’m pretty sure they don’t.

  13. Kettle Black says:

    I agree with Stewie and KF that this should be a separate offense.  I dare say such an offense should potentially cover other STDs as well (though, admittedly, there has to be a line somewhere).  However, I doubt Congress will take any action.  I know for example that California has repealed its HIV transmission statute within the last couple years.  In the current political and societal environment, representatives/senators are not going to back a statute that places them in the role of ‘oppressing’ a ‘marginalized’ class.
     
    Perhaps this type of offense is better viewed as a general Art 134 offense.  When committed with another servicemember, there are several possible prejudices to good order and discipline (effect on health, safety, unit cohesion, etc).  When committed with a civilian, there is at least an argument that the conduct is service discrediting.  Naturally, there would be the typical motions related to general Art 134 – notice, void for vagueness, etc.  Still seems like a better fit, both in terms of the nature of the offense and punishment exposure, for failing to disclose than Article 120.  Alternatively, as jagaf mentioned, there are the disclosure orders the Air Force uses.  Just tie the offense to Art 92.

  14. Duderino says:

    Yes California reshaped their transmission laws. They made them include all STDs and incorporated that the act must have a realistic chance of transmission.  The California law makes it a misdeamenor to have sex without disclosure of the infected person knows their status and is capable of transmitting the virus. 
    Futher still North Carolina updates their laws in Feb 2018. Also Requiring disclosure when the infected person is capable of transmission.
     
    The laws should match current medical knowledge not what people think they know based off of decades old fear and stigma.
    sure many people would be upset without disclosure but if there was actually no chance of them becoming infected then it really is no different than all of the other things on the long list of things mentioned above.
     
    non-informed sexual acts that do pose a risk of HIV transmission should be criminal. But not the acts that don’t pose a risk. then again what about all the variants of HPV that are known to cause cancer and prohibit child bearing in women???

  15. slyjackalope says:

    This all could have been avoided with the Love Contract.  http://www.cc.com/video-clips/jwmvxd/chappelle-s-show-love-contract

  16. stewie says:

    I have no idea Duderino why you are repeated insistent that an HIV positive person has not the slightest legal obligation to report their status to prospective partners. You make the same arguments, fear/stigma. But I neither have any stigma towards HIV+ people (or anyone who’s gotten an STD) nor fear. Getting an STD can happen to someone who is a virgin, gets married and then their partner strays. It can happen to horn dogs and prudent folks alike. The disease does not care about your morals or ethics. It’s not a punishment from God.
     
    But guess what, I’d still like to know if my partner has HIV….even if current medical science says they are not transmittable. They literally are still doing testing to establish this. It’s not something that is set in stone for all time, nor is it something that unlike most other diseases won’t lead to a long term cost in both treatment and side effects and we still don’t know fully the long term effects of the drugs that treat HIV. We also don’t know what strain or mutation will change the game.
     
    Does this mean that these folks should be charged with sex assault? No. Does this means they should face some lesser ramification for intentionally hiding their status? Yes. Same for Herpes or any of the other incurable diseases that require a lifelong treatment plan, and that bring on emotional distress.  And yes maybe HPV if they know about it. We aren’t talking about throwing anyone under the jail, we are talking about something akin to an ARticle 92 violation, one of our lowest offenses.