CAAFlog » October 2018 Term » United States v. Forbes

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Cooper, No. 18-0282/NA (CAAFlog case page): Oral argument audio.

United States v. Forbes, 18-0304/NA (CAAFlog case page): Oral argument audio.

United States v. Briggs, No. 16-0711/AF (CAAFlog case page): Oral argument audio.

United States v. Stout, No. 18-0273/AR (CAAFlog case page): Oral argument audio.

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, [1998] 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, [1998] 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.

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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, [1998] 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, [1998] 2 S.C.R. 371, 372 (Can.))).

CAAF’s decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page), was the #7 Military Justice Story of 2015 because a unanimous CAAF found the appellant’s conviction of aggravated assault (based on engaging in sexual activity without disclosing to his partners that he was HIV-positive) to be legally insufficient due to a no more than a 1-in-500 chance that the appellant would actually infect his partners with HIV. In so deciding, CAAF expressly overruled two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirmed a conviction for the lesser included offense of assault consummated by a battery, explaining that:

Here, 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.”). He is therefore guilty of assault consummated by battery

74 M.J. at 68.

Last month the Navy-Marine Corps CCA issued a published opinion in United States v. Forbes, __ M.J. __, No. 201600357 (N.M. Ct. Crim. App. Apr. 24, 2018) (link to slip op.), that applies Gutierrez to affirm “convicting a service member of sexual assault for failing to inform a sexual partner of his HIV status before engaging in an otherwise-consensual sexual act.” Slip op. at 4 (emphasis added).

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