Last term, in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page), a unanimous CAAF found the appellant’s aggravated assault conviction (for engaging in sexual activity without disclosing to his partners that he was HIV-positive) to be legally insufficient because there was no more than a 1-in-500 chance that the appellant would 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.
The court remanded the case to the Air Force CCA for reassessment of the sentence or a sentence rehearing. In a decision released last week, the CCA reassesses the sentence, reducing the confinement from eight years to six and upgrading the dishonorable discharge to a bad-conduct discharge. United States v. Gutierrez, No. 37913 (A.F. Ct. Crim. App. Nov. 23, 2015) (link to slip op.). The CCA finds no error in the post-trial delay in the case (the sentence was adjudged in January 2011) and also that any delay was harmless.