Top Ten Military Justice Stories of 2019 – #5: CAAF affirms sexual assault convictions even though “each of the women consented to intercourse with the appellant”
Four years ago, in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), CAAF reversed an HIV-positive servicemember’s convictions of aggravated assault that were based on sexual activity without disclosure of HIV-positive status, because the court found that the chances of transmission of the virus were too remote to constitute a means likely to cause death or grievous bodily harm. But CAAF affirmed convictions of the lesser-included offense of assault consummated by a battery, reasoning that even though the participants had consented to the sexual acts, their consent was not “meaningful[ly] informed” because of their ignorance Gutierrez’s HIV-positive status. 74 M.J. at 68.
CAAF’s decision was puzzling in a number of ways, including the fact that consent was not in issue in Gutierrez’s trial (because a person cannot consent to an act likely to cause death or grievous bodily harm as a matter of law) and the fact that the requirement for meaningful informed consent was drawn from Canadian law, with then-Chief Judge Baker writing:
The offense of assault consummated by battery requires that the accused “did bodily harm.” MCM pt. IV, para. 54.b.(2). “‘Bodily harm’ means any offensive touching of another, however slight.” MCM pt. IV, para. 54.c.(1)(a). Here, 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, and we affirm that offense as a lesser included offense of aggravated assault.
74 M.J. at 68. Yet while CAAF left open the possibility of a conviction of aggravated assault for having sex while HIV-positive (ruling only that the risk of transmission in Gutierrez’s case was too remote), its finding that the failure to disclose HIV-positive status forecloses any possibility of consent to the sexual activity created a different possibility: prosecution of such conduct as a sexual assault.
In 2019 that possibility became reality, as CAAF affirmed convictions of sexual assault by causing bodily harm (in the form of a non-consensual sexual act) that were based on the failure to disclose HIV-positive status to sexual partners, in United States v. Forbes, 78 M.J. 279 (C.A.A.F. Feb. 7, 2019) (CAAFlog case page).