WICHITA, Kan. (AP) — The nation's highest military court on Monday reversed the aggravated assault conviction of a Kansas airman accused of exposing multiple sex partners to HIV at swinger parties in Wichita, while upholding other charges against him.
The U.S. Court of Appeals for the Armed Forces unanimously ruled that prosecutors failed to prove that any of David Gutierrez's acts were likely to transmit HIV to his partners.
However, the court upheld a lesser conviction of assault by battery for offensive touching to which his sexual partners did not provide meaningful informed consent.
It also upheld his conviction for adultery, even though his wife participated with him in the swinger lifestyle. The court said the participation of his wife in the offense is "immaterial to the question" of whether the government presented sufficient evidence to sustain the conviction.
His defense attorney, Kevin McDermott, said he would wait to comment until he had a chance to fully review the decision.
Gutierrez was a sergeant at McConnell Air Force Base in Wichita in 2011 when he was stripped of his rank and sentenced to eight years behind bars.
In addition to aggravated assault, Gutierrez also was found guilty of violating an order to notify partners about his HIV status and to use condoms. He was also convicted of indecent acts and adultery. He has not been accused of actually infecting anyone with HIV.
The appeals court upheld the lower court's decision as to the remaining charges. The case was sent back to the lower court for its determination on whether to either reassess the sentence or set it aside and order a rehearing. Also left for the lower court's consideration is whether his due process rights were violated by the long appeal process.
The appeals court also noted that just because Gutierrez's conviction for aggravated assault is legally insufficient, it does not mean that such conduct is "beyond the reach of military criminal law."
Because Congress has not criminalized HIV nondisclosure in the U.S. military, military prosecutors must rely on other statutes, such as aggravated assault, to prosecute such conduct. But in the Gutierrez case, the government failed to prove that any of his acts were likely to transmit HIV, the court said.
In his appeal, Gutierrez challenged whether the risk to his sexual partners was high enough to constitute aggravated assault.
The risk of infection by an HIV-positive man during sexual intercourse with a woman varies widely, and both sides in the case cited the statistic within that range that was most favorable to their argument.
Defense lawyers argued the risk 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.