U.S. v. Dumford, 30 M.J. 137 (CMA 1990)

Court and Agency Decisions and Orders (including case law)

This is a United States Court of Military Appeals decision that examines the validity of a "safe sex" order. The court determines the order was not overbroad in its application and affirms the lower court's decision to court-martial an HIV-positive air serviceman for aggravated assault and violating the "safe sex" order because he failed to disclose his status prior to sexual intercourse with a female officer.

Relying on United States v. Womack, the appeals court states that issuing a safe sex order requiring disclosure of one's HIV status prior to sex is a valid exercise of a court's authority, although Womack considered "nonconsensual homosexual sodomy" instead of consensual heterosexual sex. In this case, the court states that even if the sex was consensual and "non-deviant," there are compelling reasons—e.g., health and military readiness—that the order should stand.

The court further posits that because other jurisdictions have statutes in place that are far more restrictive than the one imposed here, no personal liberties could have been abridged. The court claims the military has a legitimate interest in safe-guarding itself by preventing the spread of HIV through such orders, but provides no support for its claim that such a court order will be effective.