U.S. v. Banks, 36 M.J. 1003 (A.C.M.R. 1993)

Court and Agency Decisions and Orders (including case law)

In this case, the United States Army Court of Military Review set aside an HIV positive soldier's convictions for aggravated assault and disobeying an officer. Banks was diagnosed with HIV and his commanding officer issued a safe sex order, requiring Banks to use a condom or other barrier protection and to disclose his status to all prospective sexual partners. After learning about his condition, Banks had unprotected sexual intercourse with three women and failed to disclose his status to them. He pleaded guilty to one count of aggravated assault, but unsuccessfully contested the remaining counts of aggravated assault and the charge of disobeying an officer.

The appellate court found that the trial judge misused stipulations of fact intended to help the court understand the case and issue an appropriate sentence. Instead, the lower court used these findings to convict Banks of aggravated assault and disobeying an officer, the charges he contested. The appellate court found that absent the erroneously admitted evidence, there was not enough to convict Banks, and dismissed these convictions.

Banks also challenged the guilty plea he entered for the first charge, claiming that the prosecution failed to prove that the sexual encounters were "likely to inflict death or grievous bodily harm." The appellate court disagreed, and stated that the government did not need to prove the actual statistical probability of contracting HIV from the defendant: "It is now axiomatic that an HIV positive soldier can be convicted of assault for having unwarned and unprotected sexual intercourse." Following precedents like United States v. Joseph, Banks stands for the proposition that courts do not need to inquire into the specific medical prognosis or the unique patterns of an HIV positive soldier when convicting him or her of aggravated assault for unprotected sex.

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