KANSAS: Military Court Reverses HIV Assault Conviction For Swinger Airman

Via the Associated Press:

The highest U.S. military court’s reversal of a Kansas airman’s aggravated assault conviction for exposing multiple sex partners to HIV at swinger parties in Wichita will effectively end such prosecutions in the armed forces, his attorney said. The U.S. Court of Appeals for the Armed Forces unanimously ruled Monday that prosecutors failed to prove that any of David Gutierrez’s acts were likely to transmit HIV to his partners. That decision overturns a 25-year precedent that had allowed military personnel to be convicted of aggravated assault solely on the basis of a positive HIV test, attorney Kevin McDermott said Tuesday. Gutierrez was not accused of infecting anyone with HIV.

Gutierrez could still be issued a bad conduct discharge, rather than the more severe dishonorable discharge that he had previously faced. In his appeal, Gutierrez challenged whether the risk to his sexual partners was high enough to constitute aggravated assault. Defense lawyers argued the risk of infection by an HIV-positive man during sexual intercourse with a woman ranged from a 1-in-10,000 to 1-in-100,000 chance per sexual encounter, which they contend is so low that it doesn’t meet the legal standard for assault. Prosecutors countered that the exposure risk was closer to 1 in 500. The court concluded that even if the risk were 1 in 500, transmission of the disease was not “likely” to occur.

The airman has been imprisoned at Fort Leavenworth for almost five years and should be released shortly.