A Kansas airman accused of aggravated assault for exposing multiple sex partners to HIV at swinger parties in Wichita will have his appeal heard this week before the nation’s highest military court.
The Court of Appeals for the Armed Forces will take up on Tuesday the case against David Gutierrez, an appeal the defense contends could upend similar prosecutions in the U.S. military.
“This case will have the potential of decriminalizing sexual contact with someone with HIV,” defense attorney Kevin McDermott said.
Air Force prosecutors have declined comment.
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.
In his appeal, Gutierrez has challenged whether the risk to his sexual partners was high enough to constitute aggravated assault, arguing that laws covering exposure to the disease are outdated since the statistical probability of heterosexual transmission is low and medical advances have made the disease treatable.
“About 100 years ago we used to have a lot of laws on the books that threw people in prison for having syphilis because you couldn’t cure it. Once they came up with a cure a lot of those laws went along the wayside,” McDermott said.
The risk of infection by an HIV-positive man during sexual intercourse with a woman varies widely, and each side in the case is citing the statistic within that range that is most favorable to their argument.
Defense lawyers say the risk of infection 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, however, counter that the exposure risk was closer to 1 in 500. “A 1-in-500 chance of receiving a deadly, incurable disease is not merely fanciful, speculative, or remote possibility. It is a real possibility,” they wrote. “That real possibility of harm, when balanced with the magnitude of harm, certain death, provides more than enough justification to hold (Gutierrez) criminally liable here.”
Government lawyers argued at trial that Gutierrez played Russian roulette with his sexual partners’ lives and several people who had sex with Gutierrez and his wife testified that they would not have done so if they had known he was HIV-positive. The government is playing up that testimony on appeal.
The case could have a broad sweep, since defense attorneys in a similar case winding through the Army appeals process have gotten involved with a rare friend-of-court filing. In that brief, defense lawyers said an “epidemic of fear” pervaded the nation in the mid-1980s, when many of the applicable laws were written.
They said that panic led to an expansion of criminal liability, and they urged the military appellate court to see HIV as a treatable condition.
As of early this year, there had been more than 900 arrests or prosecutions in at least 38 states and the military of HIV-positive people accused of exposing others to the disease, according to the Global Network of People Living with HIV.
Defense lawyers also say Gutierrez shouldn’t have been convicted of adultery since he and his wife participated in group sex. They also contend that their client’s due process rights have been violated by a long appeals process.