Sergeant found guilty in HIV-sex case

03/30/2012 4:49 PM

08/08/2014 10:01 AM

A McConnell Air Force Base sergeant who indulged in a swinging lifestyle will spend the next eight years in military prison and lose the benefits that have helped him fight off AIDS since his HIV-positive diagnosis in 2007.

Lt. Col. William Muldoon sentenced Tech. Sgt. David Gutierrez to prison, dishonorably discharged him and reduced his rank to the lowest for an enlisted person.

Gutierrez will lose all military wages and benefits.

During an emotional statement to the judge, the 43-year-old begged Muldoon to not dishonorably discharge him so he could continue to receive the benefits that pay for his medication for HIV. Such medicine can cost $1,700 to $1,800 a month, a doctor testified earlier in the case.

One of Gutierrez's lawyers, Maj. James Dorman, told Muldoon that "your sentence today really can be a matter of life or death... You can tell he is scared. He's looking at his own mortality down the road."

Muldoon found Gutierrez guilty of seven counts of aggravated assault, eight counts of adultery, one count of disobeying an order and one count of indecent acts on multiple occasions for having sexual relations with several people without disclosing he was HIV-positive, and not guilty of one count of aggravated assault. The judge earlier had dismissed two counts of aggravated assault and one count of adultery.

Eight women testified earlier this week that they never would have had sex with Gutierrez if they had known he was HIV-positive. All said they have tested negative for the virus. They said they trusted him and believed him when he said he was clean and free of sexually transmitted diseases.

Most of the women met him initially on adult websites and then met in person to see if they would be compatible sexually.

Some of the women had sex with Gutierrez with their husbands or boyfriends present.

One of the women said she learned Gutierrez was HIV-positive when news of the case broke last year. She said the experience has put her "on the defense in the lifestyle I enjoy."

Gutierrez's lawyers noted that the women already were living a high-risk lifestyle before meeting Gutierrez.

Gutierrez asked for leniency.

"Please have mercy on me on this matter," Gutierrez said in court, crying throughout his statement. He told Muldoon he wants to see his two children, whom he called his pride and joy, graduate from college, get married and have their own children.

"Your honor, I humbly stand here before you," Gutierrez said, pulling a tissue from a box to blow his nose before continuing. "I am not a perfect man, and I have made some mistakes."

He asked the judge to consider his 20 years of military service when imposing a sentence.

"I am well aware that whatever outcome today, my Air Force career is over," Gutierrez said. "My 20 years will amount to little. I know I brought this on myself."

Gutierrez apologized to his superiors, to the Air Force, to his family and to his sexual partners.

"I am sincerely sorry from the bottom of my heart," Gutierrez said. "I know I cannot change the past as much as I wish I could."

Capt. Sam Kidd, one of the prosecutors, said Gutierrez repeatedly "played Russian roulette with the lives of people in this community." He said it was "pure luck" that none of Gutierrez's sexual partners was infected with the virus that causes AIDS.

"The accused was not thinking about how his victims would pay for their medical treatment," Kidd said.

He also said the Air Force, which he said Gutierrez discredited, gave "him a career, world-class health care and expensive treatment." But that career "was a mask, a mask that he hid behind for a long time."

Kidd questioned why the government should continue to pay for Gutierrez's health care, given his actions.

Gutierrez's lawyers did not call any witnesses but did re-call Donna Sweet, a University of Kansas School of Medicine professor and physician who specializes in HIV and AIDS care, after the verdict. Sweet said she had been torn about the case, saying she worries that if HIV-positive patients are punished for having sex, others will be less likely to be tested for the virus, taking an ignorance-is-bliss type of attitude.

She testified earlier that it was possible but not probable that the women with whom Gutierrez had protected and unprotected sex would be infected. Gutierrez's levels for the virus were relatively low, she said.

But prosecutors said Gutierrez said that he knew the risks he was taking with the women.

Gutierrez said he is thankful every day that no one in the case tested positive for HIV.

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