A US military court has sentenced a 37-year-old HIV-positive Naval officer to three months’ in military prison after he pleaded guilty to having unprotected sex with disclosure with two women. The man, an aviation electronics technician who had been in the Navy for 18 years, was also given a bad-conduct discharge and demoted to seaman recruit.

No, you aren’t misreading this. A man has lost his job, his reputation and his liberty for the next three months, after being court martialled for having sex with two women (one of whom is his ex-wife) who consented to unprotected sex.

Clearly, this man’s lawyer, Greg McCormack (a civilian lawyer), and the military judge, Cmdr. Tierney Carlos, have not done their homework. It took me less than an hour to discover previous US Court of Appeals for the Armed Forces (CAAF) judgements that call into question the aggravated assault charge that Petty Officer 1st Class Steven R. Franklin pleaded guilty to.

First, the facts of the case, as reported in The Virginian-Pilot.

The charges stemmed from Franklin’s ignoring written and oral orders not to have unprotected sex. He also was compelled to advise sexual partners that he was HIV-positive and that condoms are not guaranteed to stop the spread of the virus. Franklin, who was diagnosed with HIV in 2003, was reminded of the restrictions every time he visited the HIV clinic at Portsmouth Naval Medical Center, he told the judge. He also signed an order from his commanding officer at the Aviation Intermediate Maintenance Depot in Norfolk in November 2007 pledging to meet those conditions.

Within a few weeks of signing that document, though, Franklin began a new sexual relationship. The couple used condoms for a few weeks but later stopped at Franklin’s request. After the woman learned of his diagnosis, she continued having unprotected sex with him for a few more weeks, according to testimony. The second woman – now his ex-wife – testified at an earlier hearing that she also had unprotected sex with Franklin after learning he was HIV-positive. Neither woman has contracted HIV, according to testimony.

The problem is Cmdr. Carlos’ interpretation of Article 128 of the Uniform Code of Military Justice (assault with a dangerous weapon) as it applies to criminal sexual HIV exposure.

Regardless of the women’s actions, the law does not allow people to consent to a sexual act that could result in “grievous bodily harm,” Carlos explained. Unprotected consensual sex became aggravated assault because of the likelihood it would cause serious harm or death.

That used to be the case, but not any more.

Now, in military law, you cannot consent to aggravated assault. This is due to a 1997 CAAF decision (US v. Bygrave) which held that, in this case, because both women Bygrave had sex with were on active duty there was a compelling Government interest in protecting the health of military personnel negating their informed consent to the risk of HIV transmission.

But a 2006 ruling, upheld in 2008, found that unprotected sex (without disclosure) might not necessarily be aggravated assault if the HIV-positive individual has a low viral load.

Until 2006, the military court’s position on criminal sexual HIV exposure can be summarised in this quote from US vs. Upham (US Coast Guard Court of Criminal Appeals, 2006)

A person who wilfully and deliberately exposes a person to seminal fluid containing HIV without informing that person of his HIV positive status and without using a condom has acted in a manner likely to produce death or grievous bodily harm.

A specific intent to infect a victim with the HIV virus [sic] or to expose the victim to it is not required for this offense. The accused need only have intended to engage in unprotected sexual intercourse to have committed this offense.

The fact that the alleged victim may have consented to sexual intercourse with the accused is not a defencse to aggravated assault. One cannot consent to an act that is likely to produce death or grievous bodily harm.

In 2008, US v. Upham reached the US Court of Appeals for the Armed Forces (CAAF) which upheld the earlier appeal.

The case of Lieutenant Upham involved him having unprotected sex with a fellow (female) officer (Capt B) without disclosing his HIV status. He testified in his original court martial that since his viral load was low (but detectable)

“there was not a risk of zero transmission,” but testified that he did not believe that he had exposed Cpt B to a fatal disease: “I do not believe that she was going to be infected.”
(US v. Upham, CAAF 2008, p5)

The medical witness testified

that given Appelant’s low viral load, “I cannot say he’s not infectious” (R. at 441-42), but that [Capt B]’s risk of contracting HIV was very low (R. at 465)
(US v Upham, US Coast Guard Court of Criminal Appeals 2006, p 3)

However, when the judge gave intructions for the jury he said

A person who wilfully and deliberately exposes a person to seminal fluid containing HIV without informing that person of his HIV positive status and without using a condom has acted in a manner likely to produce death or grievous bodily harm.

The defense objected to this on the grounds that

“these instructions say that [Appellant] is per se guilty of aggravated assault.” The military judge overruled the objection, and said that instruction “accurately state[s] the that exist[s] today.” (US v Upham, CAAF 2008, p6)

In the 2006 appeal, the court concluded

that the error [of giving this instruction] was prejudicial as to the aggravated assault charge: “Given the medical evidence, it is not inconceivable that the court could have had a reasonable doubt on whether the means employed was likely to produce death or grievous bodily harm.” (US v Upham, CAAF 2008, p6)

The legal arguments are long and complex (maybe even too long and complex for me, a non-lawyer), but what I think they are essentially saying is that the risk of HIV transmission with a low (but not even undetectable) viral load might not have been “likely to produce death or grievous bodily harm” and the jury should have been allowed to decide this rather been told that HIV exposure without disclosure (regardless of other facts) is always aggravated assault.

In the end, Lieutenant Upham was found guilty of the lesser charge of “assault consummated by a battery” and had his prison sentence reduced from eight months to four months. In March 2008, the CAAF upheld this appeal. (However, a similar case was rejected by the C.A.A.F. in May 2008, reported on my blog here, and also discussed on another blog concerned with military law here.)

This is all revelant to the current case because The Virginian-Pilot reports

Franklin…told the judge his HIV is well-controlled and the virus is no longer detectable in certain medical tests.

So, his lawyer should have asked, and/or the judge should known, to consider having the charge reduced from aggravated assault to assault consummated by a battery.

And if there is no aggravated assault, than you can consent, particularly since neither of the women that Franklin had sex with were military personnel, negating the compelling Government interest.

Since Franklin pleaded guilty, it’s not clear that he is allowed to appeal. Let’s hope he, or his lawyer, reads this blog, and finds a way to re-open this egregious example of Government intrusion into the private lives of individuals.

The issue of whether someone with an undetectable viral load can be guilty of HIV exposure has been discussed in a US court for the first time – the US Court of Appeals for the Armed Forces.

In this extremely interesting article from Gay City News (below) the five-member panel spent some time discussing whether an HIV-positive soldier who had previous pleaded guilty to HIV exposure (actually aggravated assault) could set aside his guilty plea following testimony from a military doctor that he was “highly unlikely” to be able to transmit HIV given his extremely low viral load.

At a sentencing hearing after his guilty plea, Captain Mark Wallace, a military doctor, testified that it was highly unlikely that X could have infected either woman because of his low viral load. Judge Charles Erdmann, writing for the court, noted Wallace’s testimony that “it was ‘unquestionably’ possible that X could transmit the virus but that the likelihood was ‘extremely low’ due to his low viral load.” Wallace acknowledged that there were documented cases of low viral load individuals who had sexually transmitted the virus, but emphasized that this was “very, very unlikely.”

When pushed to quantify his testimony, Wallace said the probability that Dacus could transmit HIV through unprotected sex with a woman was about 1 in 10,000, and that when he used a condom it was 1 in 50,000.

Although the majority did not agree, and did not allow his guilty plea to be set aside, two members of the panel found this expert testimony valid enough to question HIV exposure laws given evolving scientific knowledge of HIV transmission.

HIV Liability At Issue
By: ARTHUR S. LEONARD

A military appeals court ruling on aggravated assault charges against an HIV-positive male soldier who had sex with two women, one without a condom, without disclosing his serostatus provoked an interesting debate about what standard to apply given developing knowledge about transmission of the virus.

A five-judge panel of the US Court of Appeals for the Armed Forces was unanimous in its May 6 ruling rejecting the soldier’s effort to set aside his guilty plea, but two of the judges joined in a concurring opinion suggesting some reconsideration of the issue is in order.

Army Staff Sergeant X, a married man, learned that he was HIV-positive in 1996, and received the usual counseling about his responsibility to use a condom and also inform his partners of his status. Medical testimony in the case indicates that he is one of the rare individuals whose immune system suppresses the virus to an undetectable level without any medication. As a result, he remains asymptomatic and is unlikely to ever develop AIDS.

Military prosecutors charged him with two counts of attempted murder, arising from his adulterous sexual encounters with two women. He used a condom with the first woman, and claimed he barely penetrated her. With the second, however, he did not use a condom, and had an affair that included at least 11 occasions of sexual intercourse.

X did not deny the factual allegations, and in the face of the drastic penalties for attempted murder, agreed to plead guilty to lesser charges of aggravated assault and adultery, both violations of the Uniform Code of Military Justice (UCMJ).

At a sentencing hearing after his guilty plea, Captain Mark Wallace, a military doctor, testified that it was highly unlikely that X could have infected either woman because of his low viral load. Judge Charles Erdmann, writing for the court, noted Wallace’s testimony that “it was ‘unquestionably’ possible that X could transmit the virus but that the likelihood was ‘extremely low’ due to his low viral load.” Wallace acknowledged that there were documented cases of low viral load individuals who had sexually transmitted the virus, but emphasized that this was “very, very unlikely.”

When pushed to quantify his testimony, Wallace said the probability that X could transmit HIV through unprotected sex with a woman was about 1 in 10,000, and that when he used a condom it was 1 in 50,000.

In his appeal, X argued that his guilty plea was inconsistent with Wallace’s evidence introduced at the sentencing hearing. Under military law, conviction on aggravated assault requires that it be established that “the natural and probable cause of exposing” his sexual partner “to the HIV virus is death or grievous bodily harm,” or, put another way, that his conduct was “likely to produce death or grievous bodily harm.”

Applying this standard in prior HIV cases, military courts had taken into account both the probability that the virus could be transmitted and the harm that would be caused if it was transmitted. Erdmann first rejected X’s argument that even if he had infected his partners, they would not have been seriously harmed since he enjoys a very low viral load. That claim was not supported by medical evidence, since Wallace testified X’s low viral load was attributable to the strength of his immune system, not to a weak strain of HIV in his system.

The issue of X being unlikely to transmit the virus to a partner was a more complicated matter. In the past, military courts found that the statutory standard was met if the risk of HIV infection is “more than merely a fanciful, speculative, or remote possibility.” Erdmann wrote that “although the risk of transmitting the virus was low and therefore arguably ‘remote,’ the risk was certainly more than fanciful or speculative.”

This was enough to satisfy the court that X’s guilty plea should not be set aside, but two members of the court, Judges Margaret A. Ryan and James E. Baker, suggested that the issue of risk should be revisited in “an appropriate case.”

Ryan wrote that the standard being applied, though in line with other military rulings, “gives me pause,” and that a 1 in 50,000 chance seems at odds with the intent of the military code. She also noted the UCMJ does not state that “because the magnitude of the harm from AIDS is great, the risk of harm does not matter.” The standard in the statute is whether the conduct is “likely to produce death or grievous bodily harm,” which seems, according to Ryan, a higher standard than the risk being “so low as to approach being no ‘more than merely a fanciful, speculative, or remote possibility.'”

If the case had involved an appeal of a conviction at trial rather than a guilty plea, Ryan and Baker would have been inclined to reconsider it.

Ryan and Baker’s concerns deserve wider discussion in the civilian sphere as well, since many states prosecute HIV-positive individuals who have sex without disclosing their serostatus to partners. The severity of punishment is supposed to reflect the risk facing the uninfected party, yet the occasional appellate decisions that have emerged suggest that courts have been slow to adapt to the unfolding evidence about medical successes in reducing viral loads to undetectable levels and, consequently, lowering the risk of transmission.