The highest court for the U.S. armed services has issued a decision that at least one legal expert says means the end of similar prosecutions in the future. As a result of the ruling, a U.S. Air Force sergeant's conviction on a charge of aggravated assault is reversed.
The basis of the accusation against Sgt. David Gutierrez reportedly was that he had tested positive for HIV in 2007, but that he did not tell multiple sex partners he had between 2009 and 2010 before exposing them. According to court records, his commanding officer had ordered him not to indulge in unprotected sex acts. He was also ordered to inform potential partners of his HIV status.
The Associated Press says he was arrested in 2010 and was convicted of aggravated assault, of violating the order about notifying sex partners and of indecent acts and adultery. He was stripped of rank and sentenced to eight years in Leavenworth.
In its action this week, the U.S. Court of Appeals for the Armed Forces let the convictions on the lesser charges stand, but reversed the aggravated assault charge and ordered a reassessment of Gutierrez's sentence. His attorney says it could mean he'll be set free in several weeks.
But what has most people talking is that the reversal of the aggravated assault charge reverses a precedent that was set in 1990. At that time, a military court found that unprotected gay sex carried with it "the likelihood of the (HIV) virus causing death or serious bodily harm." And that was used to support the aggravated assault conviction.
In the Gutierrez case, though, the unanimous ruling from the appeals court found that the odds of transmitting HIV through the unprotected vaginal intercourse the defendant had engaged in were so low that the a charge of aggravated assault couldn't be sustained.
Military personnel facing court-martial for an offense of any kind have a great deal at stake. To protect your rights and seek the best possible outcome, having experienced legal counsel matters.