Military Court Reverses HIV-Related Aggravated Assault Conviction

By Christopher Coble, Esq. on February 26, 2015 | Last updated on March 21, 2019

The U.S. Court of Appeals for the Armed Forces has reversed the aggravated assault conviction of former Air Force Tech. Sgt. David J.A. Gutierrez for withholding his HIV diagnosis from sexual partners.

The court cited medical experts who explained there is a 1 in 500 chance of contracting HIV through unprotected heterosexual sex. That's insufficiently likely to inflict grievous bodily harm to support the aggravated assault charge, the court held.

But the court upheld a lesser assault conviction for Gutierrez based on his former sexual partners' not giving informed consent to sexual activity because he hadn't told them about his HIV status.

HIV and Assault

Many states have HIV disclosure laws that require HIV-positive people to inform sexual partners of their status before engaging in intercourse. The exact parameters of these laws can vary, but the penalties can be severe: For example, ex-wrestler "Gangsta of Love" was sentenced to 32 years in prison for not disclosing his HIV status to 11 female sexual partners, and a Texas man got a 95-year sentence for infecting an underage partner.

In many states, the law doesn't require the victim to be infected with HIV, and in some cases the HIV status of the victims is purposely withheld from the jury. There have been some recent appellate court decisions, however, that have pushed back on these laws, citing the statistical likelihood of transmitting the disease as a relevant factor to the criminal conviction.

Sex and Statistics

Aggravated assault is defined as an assault that is likely to produce death or grievous bodily harm. In Gutierrez's case, the highest military court overturned a 25-year-old precedent whereby juries and courts considered the likelihood of an HIV infection causing death or bodily harm. Instead, the court looked at the likelihood that a partner would become infected in the first place.

The 1-in-500 number the court relied on is based on scientific testimony regarding unprotected vaginal intercourse with an HIV-positive partner. (For his part, Gutierrez contended he is in fact not HIV-positive, but his status was apparently not considered in the ruling.) The court also noted that unprotected oral sex carried an "almost zero" risk of HIV transmission and it is only "remotely possible" to contract the virus through protected vaginal intercourse.

While the ruling's impact on non-military cases remains to be seen, Gutierrez's attorney believes the decision will bar the military from prosecuting HIV assault cases in the future.

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