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High court to hear airman's appeal in HIV case

Sep. 28, 2013 - 06:00AM   |  
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WICHITA, KAN. — The highest court for the U.S. armed forces has agreed to hear the appeal of a Kansas airman convicted of assault for exposing multiple sex partners to HIV at swinger parties in Wichita, his attorney said Friday.

David Gutierrez was a sergeant serving at McConnell Air Force Base, Kan., when he was sentenced in 2011 to eight years in prison and stripped of his rank in an aggravated assault case. Prosecutors told the trial judge that a stiff sentence would send a message that the military values the integrity of its service members, saying Gutierrez played Russian roulette with his sexual partners’ lives.

The defense on appeal has won a rare opportunity to present before the U.S. Court of Appeals for the Armed Forces an argument that his attorney says could set a far-reaching precedent across the military.

“It will set the table for the entire military services as to what kind of evidence is necessary to find that someone can cause grievous bodily injury after testing positive for HIV,” said Kevin McDermott, one of his defense attorneys.

In addition to the HIV issue, the military appeals court agreed Tuesday to decide whether the evidence was sufficient to find Gutierrez committed adultery. The defense contends Gutierrez can’t be guilty of adultery because his wife participated with her husband in the “swinger lifestyle.”

The appeals court takes fewer than 5 percent of petitions submitted to it, McDermott said.

A military judge in Wichita found Gutierrez guilty in January 2011 on seven of eight counts of aggravated assault and of violating his commander's order to notify partners about his HIV status and use condoms. The judge also convicted Gutierrez of indecent acts for having sex in front of others and of eight counts of adultery.

Prosecutors did not immediately respond to an email Friday seeking comment.

The Air Force Court of Criminal Appeals affirmed the conviction in March 2013, and the defense appealed to the U.S. Court of Appeals for the Armed Forces.

In its petition, the defense argued that the evidence was not sufficient to prove Gutierrez was HIV-positive. The test used has since been recalled by the Food and Drug Administration because it was susceptible to false reactions.

His attorneys also said that even if Gutierrez had HIV, his medical records showed his viral load was so low during that time that he had a "zero chance" of infecting anyone through oral sex and a 1 in 10,000 to 1 in 100,000 chance of infecting a partner through unprotected intercourse.

“If the court agrees with us and determines David was not infected to the point that he could have caused grievous bodily injury to others, this would gut substantially 90 percent of the case against David,” McDermott said.

The case has not yet been set for oral arguments and no decision is expected until the summer of 2014.

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