Three airmen in the last five years have tested whether the military can charge service members with assault and battery solely on the basis of a being HIV-positive and then engaging in sexual activities.
One airman convicted in 2014 is back in court arguing his appeal.
Judges from the U.S. Air Force Court of Criminal Appeals on Tuesday reviewed the case of Staff Sgt. Adolphus Young III, who in 2014 was convicted of assault by battery because he had oral unprotected sex and protected anal sex with men without disclosing he was HIV-positive.
Young is appealing his guilty plea because the facts of what constitutes assault in this matter have changed.
In 2015, the U.S. Court of Appeals for the Armed Forces in a similar case overturned an aggravated assault conviction for Sgt. David Gutierrez stationed at McConnell Air Force Base, Kansas, in 2011. Gutierrez and his spouse engaged in a swinger lifestyle in Wichita.
The court, in Gutierrez, ruled that prosecutors failed to prove the sexual acts themselves would indeed cause bodily harm or ‘likely’ result in the chronic virus.
“Ultimately, the Court overturned the [Gutierrez]’s convictions for aggravated assault, finding that the risk of HIV transmission was not ‘likely’ to produce death or grievous bodily harm,” Young argues in his appellant brief.
Gavin Atchak, an HIV-positive airman stationed at Seymour Johnson Air Force Base, North Carolina, in 2011, also had his aggravated assault charges dismissed in August after a military panel applied the Gutierrez ruling to his case.
Capt. Michael Schrama, Young’s appellate attorney, on Tuesday argued that by the Gutierrez ruling, the assault consummated by battery charges remain “factually insufficient because Young’s conduct does not constitute battery.”
The appellate court will release its decision in the next few weeks, Schrama told Air Force Times on Wednesday.
At the time of the offense, Young was a member of the 20th maintenance group at Shaw Air Force Base, South Carolina. “Since his conviction and subsequent bad conduct discharge, he is on appellate leave,” Schrama said.
Young also plead guilty in his court-martial to four specifications of failing to obey an order under Article 92 of the Uniform Code of Military Justice, and one charge and one specification of impeding an investigation under Article 134. He was sentenced to be reduced in grade to E-1, to forfeit all pay and allowances, to be confined for eight months, and a bad conduct discharge, according to the brief.
Oriana Pawlyk covers deployments, cyber, Guard/Reserve, uniforms, physical training, crime and operations in the Middle East, Europe and Pacific for Air Force Times. She was the Early Bird Brief editor in 2015. Email her at email@example.com.