U.S. v. Johnson, 27 M.J. 798 (AFCMR 1988)

Court and Agency Decisions and Orders (including case law)

This is a United States Air Force Court of Military Review decision affirming an HIV-positive officer's conviction by general court-martial of sodomy by fellatio, aggravated assault, and attempted anal sodomy premised on an act of attempted consensual anal sex.

In analyzing the charge of aggravated assault, the court determined that the man's HIV-infected semen met the statutory requirement of a "means" likely to produce grievous bodily harm. The court also said that because the man's penis was in such close proximity to the victim's anus, the likelihood of HIV transmission was greatly increased. Interestingly, the court found that death or serious bodily harm need not be inflicted to support a conviction of aggravated assault.

The court dismissed the officer's argument that the victim's consent to sexual activity was a bar to prosecution, claiming that this consent was "uninformed" because the victim was unaware of the defendant's HIV status. The court stated that consent is not a valid defense when the nature of the conduct can be injurious not only to the victim but to the public as well.

The officer also appealed his aggravated assault conviction on the ground that it was unconstitutionally vague since he was never informed that failure to follow the instructions he received during his HIV counseling might lead to disciplinary action. The court dismissed these due process and fair notice arguments because the officer was not charged with failure to obey an order but rather with aggravated assault, and "there is no vagueness as to assault." The officer knew that he was HIV-positive and that unprotected sex could result in harm to partners.

The court upheld the sentence of dishonorable discharge, total forfeitures, and reduction to airman basic, but reduced the sentence of ten years confinement to six years.