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Military Law

Failing to disclose HIV status before swinger sex is not aggravated assault, military top court says

The military’s highest court has reversed an airman’s aggravated assault conviction for failing to disclose his HIV status before having unprotected sex at swinger parties.

The U.S. Court of Appeals for the Armed Forces overturned the conviction of David Gutierrez in a decision (PDF) on Monday, the Associated Press reports. Gutierrez’s lawyer, Kevin McDermott, told AP the decision effectively ends such prosecutions in the armed forces.

Gutierrez was not accused of infecting anyone with HIV.

The appeals court said the charge of aggravated assault requires proof that exposure to the risk of HIV is “likely to produce death or grievous bodily harm.” An expert who testified said the risk of HIV transmission in cases of vaginal, unprotected sex was, at most, about one in 500.

According to the appeals court, that figure shows transmission was not “likely” within the meaning of the aggravated assault law. The court did find, however, that there was sufficient evidence to support a conviction for assault.

Hat tip to How Appealing.