Center for Reproductive Rights welcomes Kenya High Court ruling that quashes vague and unconstitutional HIV-specific criminal statute

03.30.15 – (PRESS RELEASE) Key provisions of a law criminalizing the transmission of HIV in an effort to curb spread of the disease in Kenya are unconstitutional and violate fundamental human rights, according to a recent landmark ruling from the High Court of Kenya. The Center for Reproductive Rights filed an amicus brief in support of the case brought by AIDS Law Project in 2010.

While the “HIV and AIDS Prevention and Control Act, No.14 of 2006” (“HIV/AIDS Act”) codifies measures for treatment, counseling, care and support of people living with HIV—it contains troubling provisions that criminalize the transmission of HIV in certain instances and permit partner disclosure of HIV/AIDS status by health care workers. The law also discriminates against women, who are often subject to coercive practices and violations of informed consent and confidentiality when testing for HIV, particularly during pregnancy.

In its decision issued on March 18, the three-judge panel ruled Section 24 of the HIV/AIDS Act which criminalized transmission of HIV was unconstitutional under the Kenyan Constitution, as the provisions are too vague and that disclosing patients’ HIV status violates their rights to privacy and confidentiality. The judges also advised the State Law Office to review the HIV/AIDS Act to “avoid further litigation” surrounding the law.

Said Evelyne Opondo, regional director for Africa at the Center for Reproductive Rights:

“All people are entitled to quality health services—regardless of their HIV status or other health needs.

“This law has inflicted fear, shame, and punishment on countless Kenyans, especially pregnant women who desperately need and deserve quality maternal health care.

“We commend the High Court for finding the criminalization of HIV transmission as unconstitutional and a violation of Kenyans’ fundamental human rights. Now is the time for the Kenya government to immediately amend this legislation and ensure people living with HIV can get the care they need without fear of discrimination or criminalization.”

“We must ensure people living with HIV receive the proper medical care and support that they need,” said Jacinta Nyachae, Executive Director of the AIDS Law Project. “If we want to reduce the spread HIV and AIDS and put an end to the stigma, violence and discrimination surrounding the disease, our public policies must be based on medical evidence and grounded in human rights.”

In 2011, the Center for Reproductive Rights submitted an amicus brief in the AIDS Law Project v. Attorney General & Director of Public Prosecutions (Petition No. 97, 2010), challenging the constitutionality of the law. The Center claimed that the HIV law could be interpreted to criminalize women living with HIV who expose or transmit the virus to a child during pregnancy, delivery, or breastfeeding. The Center argued that criminalizing HIV exposure and transmission does not protect women from transmission, but instead exacerbates existing stigma and discrimination against women, exposing them to risk of prosecution. The Center’s brief also recommended the law’s provisions permitting partner disclosure of HIV status be quashed.

Brazil: HIV-specific criminal law introduced amid media frenzy and moral panic over ‘barebacking’ gay subculture

On April 2nd 2015, a simply worded amendment to Article 1 of Law No. 8072 of July 25, 1990 – covering ‘heinous crimes’ – will be presented to the Brazilian Parliament by the populist Congressman, Pompeo de Mattos.

The amendement, draft Bill No. 198, 2015, would add to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death – individuals who “transmit and infect consciously and deliberately others with the AIDS virus. (sic)”.

The bill has considerable support thanks to an outbreak of moral panic that began with an article in the daily newspaper, O Estado de S. Paulo, published on February 22nd, that uncovered the gay ‘barebacking’ subculture and further suggested that some men were deliberately passing on HIV to unsuspecting partners.

Two days later, it was reported in a blog of the weekly magazine, Veja, that police were now looking into the allegations.

According to [Secretary of Justice and Defence and Citizenship, Aloysius Toledo Caesar], [Secretary of Public Security, Alexandre de Moraes] has guided teams of the Department of Civil Police Intelligence (Dipol) to act covertly to identify the groups. Chat rooms will be analyzed, websites, blogs and even clubs and sex saunas. “We agreed to encourage all actions that may prevent persons continue to criminally transmit the virus,” said Toledo. “When the transmission is done intentionally, our understanding of the law is that the legal concept is configured to be like an assassination attempt, a more serious penalty,” he added. Under Article 130 of the Penal Code, the penalty for transmitting the virus without the partner’s consent is up to 4 years in prison.

On February 27th, the Brazilian country office of UNAIDS issued a press release expressing concern about the “impact [of these media reports] on increasing stigma and prejudice related to HIV and people living with the virus.” It went to explain that condoms, treatment, PEP and PrEP are all effective HIV prevention tools, and concluded:

UNAIDS also highlights that there is no evidence that the use of criminal laws for HIV is an effective tool to prevent and response to the epidemic. On the other hand, there are strong indications that the fear of being arrested or imprisoned may discourage people to test for HIV or to stay on therapy.

The moral panic became a full blown media frenzy on March 15 (and again on March 22) when the top-rated Sunday news TV programme, Fantástico, on TV Globo, aired a sensationalised two-part investigation into the ‘barebacking’ phenomeon, repeating the same allegations. The reports (in Portuguese) can be viewed here and here.

In reaction to this, the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health issued a strong statement of its own on March 21, and three Brazilian civil society organizations – ABIA (Brazilian Interdisciplinary AIDS Association), RNP+ (National Network of People Living with HIV) and GIV (Group to Encourage Life) – also issued press releases or statements noting that these reports stigmatise gay men living with HIV; that the idea of deliberately infecting someone is primarily a fantasy; and that in the extremely rare case of malcious, intentional transmisison the current general law is sufficient.

This isn’t the first time that there has been a media frenzy and moral panic around criminal HIV transmission. Two high profile cases in 2009 led to a strong statement from the Ministry of Health against the use of the criminal law unless transmisison was intentional.

According to the Global Criminalisation Scan, a number of laws can be used to prosecute alleged HIV non-disclosure, exposure or transmission, and there have been at least five prosecutions since the first recorded criminal case in 1995.

Follow the progress of bill PL 198/2015 here.

Update: On May 19th, former President Fernando Henrique Cardoso, who chaired the Global Commission on HIV and the Law, published a clear statement against the law on his Facebook page.

Screenshot 2015-06-01 12.15.07

Kenya: High Court declares Section 24 of HIV and AIDS Prevention and Control Act (2006) unconstitutional, removes overly broad and vague HIV-specific criminal statute

By Kamau Muthoni Kenya: The High Court has declared unconstitutional a section of the HIV and Aids Prevention and Control Act that sought to criminalise reckless spreading of the disease. A three-judge bench comprising justices Mumbi Ngugi, Isaac Lenaola and George Odunga ruled Section 24, introduced by the State and criminalising the reckless spreading of HIV, was unclear and had no limits on which group of people was targeted.

“We so hold that Section 24 of the HIV and Aids Prevention and Control Act No. 14 of 2006 does not meet the principle of legality which is a component of the rule of law. The said section is vague and over-broad, and lacks certainty, especially with respect to the term ‘sexual contact’,” read part of the judgment.
As drafted, the section provided that a person who is aware of being infected with HIV or who is carrying and is aware of carrying HIV shall not, knowingly and recklessly, place another person at risk of becoming infected with HIV unless that other person knows that fact and voluntarily accepts the risk of being infected. Further, the section read that the person shall take all reasonable measures and precautions to prevent the transmission of HIV to others; and inform, in advance, any sexual contact or person with whom needles are shared of that fact, failure to which one would be jailed, if convicted by a court, for a term not exceeding seven years or a fine not exceeding Sh500,000, or both.
Justice Lenaola ruled that the section of law failed to meet the legal requirement that an offence must be clearly defined in law. “To retain that provision in the statute books would lead to an undesirable situation of the retention of legislation that provides for vague criminal offences which leave it to the court’s subjective assessment whether a defendant is to be convicted or acquitted,” said the judge.
In the case, filed by a lobby group called Aids Law Project, the court heard that the same section had warranted other people surrounding an infected person to seek his or her status from a medical practitioner without their discretion or involvement. The lobby group argued that such risk of unwarranted disclosure of confidential information was against the affected person’s privacy. Aids Law Project adopted the view that Section 24 of the Act was likely to promote fear and stigma as it imposed a stereotype that people living with HIV were immoral and dangerous criminals, and this would negate the efforts being made to encourage people to live openly about their HIV status.

US: Texas Senator Joan Huffman introduces four new HIV-related laws, including vague and overly broad HIV-specific criminal statute, SB 779

Three bills in the Texas statehouse would use HIV status as a weapon, one would lessen stigma.

Januari Leo, who works with Legacy Community Health Service, is the state’s go-to girl when it comes to following bills in the Texas Legislature related to HIV/AIDS. So when she calls a bill harmful, she’s likely not exaggerating.

Leo this week identified four bills introduced during this legislative session that would directly impact those living with HIV. Sen. Joan Huffman, R-Houston, filed SB 779, which would use a crime suspect’s HIV status against them if they knowingly infected the victim with HIV.

SB 1705, also filed by Huffman and its companion HB 2395 by Rep. Rick Miller, R-Sugar Land, would allow a court to test a juvenile for HIV following a crime.

Leo, a longtime social worker who has worked with clients living with HIV, is blunt about the three bills: “They would criminalize HIV. HIV isn’t a crime. It’s a public health problem.”

Texas is among five states that have no law criminalizing HIV, but there have been cases prosecuted in Texas based on exposure or transmission.

Currently 37 states have some form of criminal law related to exposure and/or transmission of HIV on the books, according to the LGBT Movement Advancement Project.

According to the Center for HIV Law and Policy, both the Presidential Advisory Council on HIV/AIDS and the U.S. Department of Justice Civil Rights Division have recommended the repeal of state HIV criminalization laws. They are joined by numerous medical organizations.

According to the Centers for Disease Control, states enacted HIV-specific criminal exposure laws during the early uncertain days of the AIDS crisis.

That legislation criminalized HIV-positive people who know their status and intentionally expose it to others.

In order to qualify for funding under the passage of the Ryan White Comprehensive Act in 1990, states were required verify that their HIV criminalization laws were sufficient enough to prosecute criminals.

Sen. Rodney Ellis, D-Houston, has introduced legislation making HIV tests a routine part of medical testing, but giving individuals the

choice to opt out.

“There’s already legislation making it a crime to intentionally spread HIV,” Leo said of the Ryan White Act requirements. “But these aren’t those bills. These new bills use HIV status as a crime, against people who are suspects in a crime but have yet to be proven guilty. They’re allowing prosecutors to use private medical records, as mandated under HIPPA, as a weapon.”

Though the bills’ language narrowly identifies cases when the law could be applied, you can’t forget the bigger picture.

“We’re trying to get to zero cases of HIV through so many resources, including PReP, preventive testing and education,” Leo said. But the bills’ authors may not realize there is also an unintentional outcome: stigmatization, which could cause less testing and awareness of one’s HIV status.

Enter SB 194 by Sen. Rodney Ellis, D-Houston, which makes HIV testing a routine part of medical tests while letting the patient opt out.

“It creates a standard. Currently you have to ask for a test. Making people aware and voluntary eliminates stigma,” Leo said of Ellis’ bill. It has now been introduced for a fourth time.

Another bill that’s seen its fair share of legislative sessions is HB 65 by Rep. Ruth Jones McClendon, D-San Antonio. The bill would create a pilot needle-exchange program in a handful of Texas counties, including Dallas, to help prevent the spread of HIV, hepatitis B, hepatitis C, and other infectious and communicable diseases.

The bill, unfortunately, was used as ammunition against its Republican sponsors, including former Sen. Bob Deuell, who was ousted by candidates backed by far right groups like Texas Right to Life and Empower Texans.

Like many advocates, Leo said she is playing defense during the 84th legislative session, where killing a bad bill is better than passing any good bills at all.

……………

HIV Legislation   

• SB 1705 by Sen. Joan Huffman and HB 2395 by Rep. Rick Miller would allow a court to test a juvenile for HIV following a crime if the criminal suspect is suspected to have HIV.

• SB 779 by Sen. Huffman would allow a court to use a crime suspect’s HIV status against them if they knowingly infected the victim with HIV.

• SB 194 by Sen. Rodney Ellis makes HIV testing a routine part of medical tests while letting the patient opt out.

• HB 65 by Rep. Ruth McClendon would create a pilot needle exchange program in certain Texas counties.   

Honduras reforms 20 year-old omnibus HIV law eliminating mandatory testing and providing free healthcare

Finally, after months of hard work and activism, Honduras managed to approve the reform of 47 articles of the HIV Law, which helps people with HIV in the country. This reform seeks to guarantee the rights of people with HIV and/or AIDS and, thus, ensure a comprehensive response to the epidemic.

One of the most significant achievements of this reform is the 47th article, which establishes that “all people with HIV are exempted from payment of the recovery fee or any other fee for the provision of services”; an amount charged in different health centers to patients with HIV, which was causing people to abandon their treatment.

One of the most significant achievements was the modification of the article which established that people with HIV were not allowed to adopt any children or even worst were not allowed to get married. Massive HIV testing in detention centers and mandatory HIV testing for vulnerable groups were also eliminated.

This achievement marks a milestone in the respect for the rights of people with HIV, since it is the first time to reform this law, after 20 years of having been created. “It has been a struggle for many years to get the process started, and now it was approved in a short period of time, which is a great achievement. The project was introduced in May, 2014”, explained Sandra Zambrano, Executive Director of Asociación para una vida mejor para personas con y afectadas por el vih (APUVIMEH).

“The excitement is great, I’m really happy, we have won and it seems incredible that it has happened (…) This is only the beginning of many changes, and it motivates me to keep fighting. It has been difficult, we are a minority, but together we have succeeded and that means a lot”, said Luis Javier Tejada.

The reform will take effect once it is published in the official newspaper of Honduras named “Gazette”.

Undoubtedly, this success is the product of arduous teamwork that has been carried out thanks to organizations such as UNAIDS and the Pan American Health Organization, in conjunction with the Honduran civil society and other international organizations.

Gambia's National Assembly passes new HIV omnibus law that appears to be protective and supportive, but anti-gay law with life sentence for 'aggravated homosexuality' if living with HIV remains on the books

The Minister for Health and Social Welfare, Omar Sey, on Wednesday, 19th March, presented a bill entitled HIV AND AIDS PREVENTION AND CONTROL BILL, 2015 to the National Assembly during a session held in Banjul.In reading it for the second and third times, the health minister said the new Bill states that the ministers responsible for basic and secondary education, higher education and health shall ensure that students are educated on HIV and AIDS in public and private schools at basic, secondary and higher levels, including formal, non-formal and indigenous learning systems.

Mr. Sey said it shall be ensured that education and training courses cover mode of transmission, prevention and other sexually transmitted infections as well as human rights of the people living with HIV and vulnerable groups.

Further dwelling on the Bill, he said health care personnel shall ensure that education and information on HIV and AIDS form part of the health services that they render to their patients and that the ministry of health shall ensure that health care personnel are appropriately trained on information and education on HIV and AIDS.

On sensitization of HIV and AIDS in the work place, he said all employees and members of the armed forces and security services shall receive standard HIV and AIDS education which shall include themes on the causes, modes of transmission and prevention of HIV and on confidentiality at the work place and the acceptance of workers living with HIV and AIDS.

The health minister said community education on HIV and AIDS shall be launched, including the education of nationals abroad.

He said part of the Bill also requires the provision of information for tourists and passengers on transit.

In his intervention, Hon. Ousman Bah of Sabach Sanjal, who seconded the motion, commended the health ministry and said the bill is timely and relevant in the fight against HIV and AIDS. He urged his colleagues to pass the bill without hesitation.

Following some amendments, the Bill was eventually passed by the whole committee of the house.

But: http://www.theguardian.com/world/2014/nov/21/gambian-leader-approves-anti-gay-law

US: Positive Justice Project releases a set of principles to guide modernisation of state criminal laws

Today, in the wake of recent court decisions rejecting several applications of the criminal law to people with HIV, the Positive Justice Project (PJP) , a national coalition challenging HIV criminal law policies in the United States, released a set of principles to guide the modernization of state HIV criminal laws across the country.

“Ending criminal prosecutions based on HIV or other health conditions is a vitally important part of a sound, public health approach to ending the epidemic,” said Kim Miller of the HIV Medicine Association (HIVMA). “Treating a medical condition as evidence of a crime is at direct odds with public health campaigns to get as many people as possible tested and, if HIV positive, into treatment,” added Ms. Miller. “That is the best way to protect everyone, since treatment keeps people healthy while reducing already low transmission risks to near-zero.”

Currently, 32 states have criminal laws that punish people living with HIV for conduct that would be legal if they did not get tested and did not know their HIV status. Conviction under these laws can result in decades-long prison sentences despite very low transmission risks and dramatic improvements in treatment that have transformed what it means to live with HIV.

Carole Treston of the Association of Nurses in AIDS Care (ANAC) confirmed, “On treatment people living with HIV can expect to live long and healthy lives. It’s time for the law to catch up with the science on the real risks and realities of HIV in the twenty-first century.”

The Guiding Principles for Eliminating Disease-Specific Criminal Laws call for modernization of existing laws that exclude HIV and other infectious diseases from long-established interpretations of criminal felony laws requiring proof of intent to harm accompanied by conduct likely to cause death or severe injury for a conviction. At present, most states require only evidence that a person has been diagnosed with HIV and has engaged in some form of contact with a third party for a felony conviction and, in some cases, life-long sex offender registration.

In 2014, the U.S. Department of Justice issued the Best Practices Guide to Reform HIV-Specific Criminal Laws to Align with Scientifically-Supported Factors; and in 2013 the Presidential Advisory Council on HIV/AIDS (PACHA) issued a Resolution on Ending Federal and State HIV-Specific Criminal Laws, Prosecutions, and Civil Commitments. A growing number of political, legal, public health and advocacy organizations also have called for the modernization of HIV laws.

“Both HIV and the prison system have a disproportionate reach into communities of color,” stated C. Virginia Fields, Director of the National Black Leadership Commission on AIDS. “Laws that make an HIV test the basis for a felony prosecution are a double burden for those at greatest risk of both HIV and entanglement in the criminal justice system. We need to end this yesterday, and we need to do it right. These principles are a great step in the right direction.

US: Rhode Island politician wants the state to consider new unscientific, stigmatising HIV non-disclosure law

State Lawmaker Targets People With HIV With Bill To Criminalize Exposure” by Zack Ford

Rhode Island state Rep. Robert Nardolillo (R) has introduced a new bill ( H 5245) that would criminalize exposing individuals to HIV without disclosing a positive status. Rhode Island is one of only 13 statesthat does not have such a law, but efforts are underway to roll back many of those other laws, which were passed when the virus was not as well understood as it is today.

Currently, Rhode Island does have a law that makes it a misdemeanor to expose another person to any sexually transmitted disease (STD), punishable by up to three months in jail and a fine of up to $100. Nardolillo told ThinkProgress that he doesn’t think this is appropriate for exposure HIV. “HIV is different. I put it alone,” he explained. “If this act happened, the penalty would be what?” According to his bill, it should be imprisonment up to 15 years and a fine up to $5,000.

A freshman legislator, Nardolillo openly discussed in his campaign that he was a victim of sexual assault as a minor and that he thus has “very strong views on sex offenders and the weak legislation that continually fails to protect those who are, have been, and will be victimized.” He noted that Rhode Island’s current laws offer “no penalty or enhancement” when STD transmission takes place during a sexual assault, though individuals can be punished for both. His new bill does criminalize when someone with HIV “forcibly engages in sexual intercourse,” but it also criminalizes when someone “knowingly engages in sexual intercourse with another person without first informing that person of his/her HIV infection.”

ThinkProgress confronted Nardolillo with studies that show that criminalizing HIV actually disincentivizes individuals from getting tested for HIV because they fear prosecution if they know their status is positive. As a result, the stigma against people with HIV increases and fewer people seek care for their HIV, which could increase their potential for transmitting the virus. “Have I read the research? I did,” Nardolillo confirmed, saying that he still felt that HIV was too serious not to prosecute in a distinct way.

ThinkProgress also asked Nardolillo about recent research showing that for HIV-positive people who have sought care and reduced their viral load to undetectable levels, it’s virtually impossible for them to transmit the virus to others. Should those individuals similarly be prosecuted for not disclosing their status? “I have no comment on that,” Nardolillo responded.

It was research about the risk of transmission that actually led the Iowa Supreme Court to overturn the conviction of a man who had been charged under that state’s HIV criminalization law last year. In fact, the Court said that, regardless of viral load, protected anal sex or unprotected oral sex are now known to carry such a minimal risk of transmission that they could not hold someone accountable for “risking” exposure when engaging in those activities. Nardolillo’s bill implicates any and all vaginal, anal, or oral sex with no qualifications as to whether protection is used.

Last year, Iowa became one of the first states to rescind its HIV criminalization laws, leaving penalties only for those who insidiously intend to transmit the virus. Though other states have not yet followed Iowa’s example, there is consensus among HIV/AIDS experts and advocates that they should. Both the Presidential Advisory Council on HIV/AIDS and the U.S. Department of Justice Civil Rights Division have recommended the repeal of state HIV criminalization laws. These laws, they argue, are not based on the medical evidence currently available and counter-intuitively increase stigma and interfere with prevention efforts, making it harder to fight the HIV epidemic, not easier.

The House Committee on the Judiciary will consider Nardolillo’s bill Tuesday afternoon. It currently has four other co-sponsors, but its prospects for passage are unclear.

US: Court of Appeals for the Armed Forces acknowledges per-act sexual HIV exposure risk, limiting future military prosecutions for HIV non-disclosure as aggravated assault

The US Court of Appeals for the Armed Forces (CAAF) has reversed the 2011 aggravated assault conviction (upheld by the US Air Force Court of Criminal Appeals in 2013) of Airman David Gutierrez for potentially exposing a number of sex partners to HIV at ‘swinger parties’, severly limiting the use of this law for future prosecutions in the US armed forces.

Gutierrez’s court-martial on the aggravated assault charge required prosecutors to prove several elements, including that the sexual activity – the “assault” – was deemed likely to produce death or grievous bodily harm.

The five judge CAAF panel’s unanimous ruling, published on Monday (and available in full below) examined the per-act risk of oral and vaginal sex with and without a condom (although there appears to be no discussion of viral load as a key modifier of these risks).

“The question in this case is not whether HIV, if contracted, is likely to inflict grievous bodily harm,” wrote Chief Judge James E. Baker. “The critical question . . . is whether exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous bodily harm.”

In overturning the conviction, the court cited testimony from the prosecution’s medical expert, Dr. Donna Sweet, that in oral sex with or without a condom, the risk of HIV transmission is “almost zero” and HIV transmission through vaginal sex with a condom is only “remotely possible.”

She estimated that an HIV-positive man engaging in condomless vaginal sex with an HIV-negative woman would result in a 1-in-500 risk of the woman acquiring HIV, but deemed this to be at the “high end” of probabilities.

CAAF concluded that the prosecution had failed to prove that any of the acts were likely to transmit HIV.

“In law, as in plain English, an event is not likely to occur when there is a 1-in-500 chance of occurrence,” Baker wrote.

Although the decision – overturning a 25-year precedent that had allowed military personnel to be convicted of aggravated assault based solely on a positive HIV antibody test – was welcomed by advocates, another part of the ruling potentially opens the door to the use of a lesser charge – assault consummated by a battery – for future allegations of HIV non-disclosure.

An article in The Tribune quotes Catherine Hanssens, executive director of the Center for HIV Law and Policy, noting that at least part of the decision was “an important sign of progress” that should be “read and taken seriously” by civilian as well as military courts. But…

In a move called “curious” by Hanssens and “astonishing” by military law blogger Zachary D. Spilman, author of Blog-CAAFlog, the court cited only a Canadian court decision for support of the potentially far-reaching conclusion that lack of knowledge equals lack of true consent.

In fact, the Court cited the notorious Supreme Court of Canada’s 1998 Cuerrier decision (which led to HIV non-disclosure in Canada problematically being framed as a serious sexual assault).

This, notes Spilman, could be extremely problematic in future military cases. His opinion analysis concludes:

I think this an incredibly odd ending to a very interesting opinion. CAAF reaches to foreign law to invalidate the consent of Appellant’s sexual partners, while simultaneously rejecting the notion that it should distort the law to “fit a round peg of conduct into a square hole of a punitive statutory provision.” Ultimately, the court seems to have merely traded one distortion of the law for another.

It remains to be seen what impact this will have on future US civilian or military cases.

In December 2013, the US Senate passed the National Defense Authorization Act (fiscal year 2014) which aimed to reform the military’s HIV-related policies, including prosecutions for HIV non-disclosure, exposure and transmission. Although work is taking place behind the scenes, it’s unclear when this will have an impact on pending or future prosecutions or policy.

In the meantime, Gutierrez is currently serving eight years in military prison. His case has  been sent back to the Judge Advocate General of the Air Force for sentencing review.

The next HIV-related case likely to come before CAAF will be that of Lt Col. Ken Pinkela whose recent change.org campaign to review his unjust court-martial has over 73,000 signatures.

Since he was (falsely) accused of condomless anal intercourse when his viral load was extremely low – neither of which were discussed in this ruling – it remains unclear how this ruling will affect his case.

Read the entire CAAF decision below.

US v Gutierrez opinion and judgment (Feb 2015)