Coming in at number seven on our list was the CAAF’s decision this year in United States v. Gutierrez (CAAFlog case page). This case was notable for several reasons. First, it overturned what appeared to be settled case law in the area of HIV-positive service members who failed to disclose their status to their sexual partners. Since the case of United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), it was understood that a service member with HIV who failed to inform a sexual partner of his HIV status could be charged with aggravated assault. In determining that sexual intercourse with an HIV-positive person constituted a means likely to cause death or grievous bodily harm, the Joseph court found that the focus “was not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body.” Id. at 397. To explain this concept, the Joseph court gave the analogy of an aggravated assault by firing a weapon at someone:

If we were considering a rifle bullet instead of HIV, the question would be whether the bullet is likely to inflict death or serious bodily harm if it hits the victim, not the statistical probability of the bullet hitting the victim. The statistical probability of hitting the victim need only be “more than merely a fanciful, speculative, or remote possibility.”

Id. at 396-397.

In Gutierrez, the CAAF refined the focus the on the word “likely” in the context of HIV cases and addressed the issue of whether the proverbial “hitting the victim” was more than a remote possibility. For the sexual acts alleged in Gutierrez, the CAAF found that the risk of infection was so small that it was not more than a “remote possibility” and therefore not “likely” to produce death or grievous bodily harm. The Court discussed the expert testimony in the case which established that the risk of infection of HIV from unprotected oral sex was almost zero, that the risk of infection in protected vaginal intercourse was a “remote possibility,” and that the risk of infection in unprotected vaginal intercourse was 1 in 500, which the Court also deemed to be “not likely” to occur. Therefore, the Court found that the evidence at trial was legally insufficient to find the accused guilty of aggravated assault.

While the Court overturned the convictions for aggravated assault, the Court unanimously affirmed convictions for assault consummated by battery, citing to Canadian law for the proposition that the sexual acts constituted bodily harm, because disclosure of HIV status is necessary for true consent. It is interesting that the CAAF chose to cite foreign law to support this rationale, since their predecessor court reached the same conclusion in Joseph:

Further, the actus reus of assault consummated by a battery (or “bodily harm”) includes “any offensive touching of another, however slight.” We can think of no reason why a factfinder cannot rationally find it to be an “offensive touching” when a knowingly HIV-infected person has sexual intercourse with another, without first informing his sex partner of his illness — regardless whether protective measures are utilized. Given the consequences of Acquired Immune Deficiency Syndrome (AIDS), the label “offensive touching” seems rather mild for such unwarned, intimate contact with an HIV-infected person. We assume most unwitting sex partners, including the victim herein, could readily think of more graphic descriptions for such behavior. We hold that a rational factfinder could find, beyond a reasonable doubt, that appellant’s conduct amounted to an assault consummated by a battery on Petty Officer W.

The potential problem with this rationale is that, as Zach aptly put it:

If Appellant’s mere failure to advise his sexual partners about his HIV status invalidated their consent to the sexual acts (not because of the danger of death or grievous bodily harm, but merely because his partners were uninformed), the same would be true if Appellant had withheld other information, such as his marital status, fertility, or lineage.

Despite this criticism, CAAF does not seem to be backing down from its decision, as it denied reconsideration in April. Thus, it remains to be seen whether this logic will be extended to other types of cases or if it is simply a different carve out for HIV cases, much like the one CAAF overturned in Gutierrez.

6 Responses to “Top Ten Military Justice Stories of 2015 – #7: United States v. Gutierrez”

  1. Mike says:

    Almost forgot how to operate this thing.  Isn’t this very similar to informed consent and battery by doctors? If the doctor lies about the treatment or there is fraud in the informed consent, the patient’s consent is invalid.  Isn’t informed consent the gravamen of some of the strains of sexual assault in Art. 120, incapacitation, etc.?  Sexual intercourse procured by fraud/deception would seem to be similar and US states are split on whether it is an offense.  Given the focus on the issue in the military, I would not doubt that the Congress, if asked (it appears the MJRG did not ask), would follow the trend toward creating a broader sexual assault offense and including sexual assault by fraud/deception.  See e.g. TENN. CODE ANN. § 39-13-503(a)(4) (2003 & Supp. 2005).  In Tenn. for example, one court has explained that State’s sexual assault by deception statute, holding that the fraudulent conduct “could have included trickery, subterfuge, or some other misrepresentation by the accused that gave the victim a false impression and allowed or aided the accused in the accomplishment of the sexual penetration.  The court also stated that “[t]he fraud may go directly to the sexual penetration itself, or may relate to the inducement of the sexual act.”  See State v. Madison, (internal brackets and citations omitted).

  2. Zachary D Spilman says:


    In my argument preview in Gutierrez (here) you will find a discussion of fraud in the inducement and fraud in the factum that addresses your comment. That distinction was part of the petition for reconsideration (that I helped to draft). 

  3. Matt says:

    So in TN, if he tells her he really pinky swears that he loves her to get her into bed, but really just wants sex, it’s a sex assault?

  4. k fischer says:

    If a man “pinky swears” that he loves a woman to get her to have intercourse,  then I highly doubt that intercourse will ensue.  “Pinky swear” as proof of love?  Seriously, who does that?

  5. Concerned Defender says:

    Or if he lies about the size of his “bank account” or whether he has chlamydia, or if he has a girlfriend…. all factors a woman might weight materially before giving up the goods.  –  Does that also equal sex assault?  Is this where we are headed as a society?  As a military?  
    Are we going to make sex offenders out of men (and women) because their lover feels slighted in some way?  Scorned lovers can be quite ruthless.  

  6. D10 says:

    The fact that Gutierrez held that transmission of HIV during unprotected intercourse is “not likely” to occur (and therefore does not constitute aggravated assault) does not mean that that same act would not nonetheless result in bodily harm, which, as we know, is “any offensive touching, no matter how slight.”  I can pat someone on the back without his consent and that would be a battery.  So asking whether the victim would have agreed to sex had she known about the accused’s lineage, bank account, marital status, etc. is a separate issue.  I think one can clearly separate these types of non-physical considerations with those that are strictly health related.  And while non-physical considerations clearly factor into whether or not two people agree to have sex, the fact remains that sex is a purely physical activity.  So in this regard, a man lying about his bank account doesn’t equal assault, but his lying about his having chlamydia (or failing to inform) does.  
    And I’m not too concerned with “where we are headed as a society, as a military[,]” at least insofar as this specific issue is concerned.  It is wrong for someone who is HIV infected to have unprotected sex with an unknowing partner.  Period.  Our society recognizes this as expressed in numerous state statutes (e.g., VA Code 18.2-67.4:1), and our military recognizes this by upholding the legality of “safe sex” orders.  Now would it be nice to have an article that specifically criminalizes this type of act?  I guess so, but do we need one?  No.  
    Because regardless of whether you take issue with how the CAAF arrived at it’s conclusion, the fact is that this type of conduct constitutes the crime of assault consummated by a battery.  In this regard, a TC doesn’t need to struggle with whether this constitutes fraud.  There is an obvious way to charge this: 120(b) (Sex Assault), by bodily harm.