U.S. v Johnson, 30 M.J. 53 (CMA 1990).

Court and Agency Decisions and Orders (including case law)

This is a United States Court of Military Appeals decision affirming the key holdings of a United States Air Force Court of Military Review decision that found a military officer guilty of attempted consensual sodomy, consensual sodomy, and assault with a means likely to produce death or grievous bodily harm for being HIV-positive and engaging in consensual sex with another male.

The appellant was found guilty of attempted anal sodomy and aggravated assault, but the Air Force Court of Military Review set aside the attempt conviction on the basis of multiplicity. To establish conviction, the statute requires that the "accused attempted to have anal intercourse with...[the victim]."

Oddly, the accused was convicted of "attempted" intercourse even though his penis never entered the victim. The court found that "the accused's acts in lying naked on the back...of [the victim] with his penis at or near the anus...amounted to more than mere preparation and were done with the apparent present ability to do bodily harm."