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Kan. Airman's HIV Assault Case to Get Military Court's Review

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By Brett Snider, Esq. on December 09, 2014 11:03 AM

A Kansas airman accused of knowingly exposing his sexual partners to HIV is facing review by the nation's highest military court.

The Court of Appeals for the Armed Forces is set to determine Tuesday whether David Gutierrez was properly punished for aggravated assault and for violating an order to notify partners of his HIV status and use condoms. As The Associated Press reports, Gutierrez argues that since HIV is now treatable and exposure risk from heterosexual intercourse is low, aggravated assault wasn't an appropriate charge.

How does this military case reflect on HIV transmission laws in general?

Exposing Swingers to HIV

The circumstances surrounding Gutierrez's criminal charges are somewhat unusual and involve "swingers parties." Gutierrez was found to have been a willing participant in these sex parties while he was a sergeant at McConnell Air Force Base in Wichita. According to the AP, in 2011, Gutierrez was found guilty of aggravated assault and violating his HIV notice/condom order by exposing other swingers to HIV without informing them of his HIV status, and he was sentenced to eight years behind bars.

Gutierrez wants to have his sentence and conviction reviewed by the Court of Appeals for the Armed Forces, which is made up of civilian judges who review the decisions of lower military courts. His argument: The laws are behind the science; because there was only a remote risk of infection from the sex, Gutierrez is arguing that "it doesn't meet the legal standard for assault," reports the AP.

The airman's charges do not accuse him of actually infecting anyone with HIV, but prosecutors argue that a 1 in 500 chance of receiving a deadly, incurable disease from an unprotected sexual encounter is risk enough to hold Gutierrez criminally liable.

HIV Sexual Contact Laws

This case cannot be viewed in a vacuum. Criminal laws in various states have treated sex without notice of HIV status as aggravated assault with a deadly weapon. Other states have made it criminal to simply have "sexual contact" without notice of HIV status, regardless of whether the victim was infected.

While some of these laws have been overturned or made more lenient, many parts of the criminal justice still echo the fears of the early days of the HIV/AIDS epidemic. Defense attorney Kevin McDermott believes Gutierrez's case may lead to potentially decriminalizing sexual contact with HIV-positive persons.

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