The CAAF case of Gutierrez was recently extended by the NMCCA to include sexual assault by bodily harm.

United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015). 

In United States v. Gutierrez, the United States Court of Appeals for the Armed Forces (CAAF) determined that not telling a sexual partner of one’s positive HIV status qualifies as an assault consummated by a battery.  74 M.J. at 68.  In finding this, however, the Court expressly stated that, given the small risk of transmission of the virus (1 in 500 for unprotected sex), the offense could not be legally sustained as a higher charged of aggravated assault.  Id. at 67.  This is because for an assault to be “aggravated,” the crime must be a completed “with means or force likely to produce death or grievous bodily harm.”  Article 128(b)(1).  In Gutierrez, the court found that a 1 in 500 chance of virus transmission did not qualify as “likely.”  74 M.J. at 67.

Nevertheless, the Court found such conduct was not “beyond the reach of military criminal law.”  Id.  As noted above, while the conduct was not legally sufficient for an aggravated assault charge, it was sufficient to sustain the lesser included offense of assault consummated by a battery.  This is because an assault consummated by a battery requires only some bodily harm, which is defined as an “offensive touching, no matter how slight.”  Id. at 68.  The Court found that “Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful consent.”  Id.

United States v. Forbes, No. 201600357 (N-M Ct. Crim. App. April 24, 2018)

In the recently published opinion of United States v. Forbes, the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) extended the analysis of Gutierrez from an assault consummated by a battery to a sexual assault by bodily harm.  No. 201600357, slip op. at 8 (N-M Ct. Crim. App. April 24, 2018).  Appellant Forbes was charged with several sexual offenses, including having consensual sex with four women, but failing to disclose his positive HIV status.  Id., slip op. 3.  On appeal, Forbes argued, among other things, that the military judge should not have accepted his guilty plea to the sexual assaults for numerous reasons.

In addressing Forbes’ arguments, the NMCCA noted the holding in Gutierrez, stating that “a recent decision by the Court of Appeals for the Armed Forces . . . has called into question the validity of charging HIV-related cases as aggravated assaults and, more importantly, has given rise to the charging scheme employed in this case.  Id., slip op. at 4.

The NMCCA continued, addressing the element of “offensive touching,” defined in Article 120(g)(3), UCMJ.  In that statute, “[t]he term ‘bodily harm’ means any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.”  Id.  In light of this language found within Article 120, UCMJ, the NMCCA saw “no distinction between “bodily harm” as defined by statute in Article 120(g)(3), UCMJ, and the Manual’s definition of “bodily harm” as it relates to Article 128, UCMJ.”  Forbes, slip op. at 8.  The NMCCA continued, stating that “[b]oth require an ‘offensive touching,’ and the CAAF has concluded that sexual intercourse without informing your partner that you are HIV-positive constitutes an ‘offensive touching.’”  Id.

Conclusion

So, for the time being, it appears the government has found a work-around for Gutierrez.  That is until the undoubted appeal to CAAF.  It will be interesting to see how the Court handles it, though unfortunately I anticipate that, if they grant review, this case will be affirmed by CAAF.  This is despite some heartburn among numerous counsel.

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