U.S. v. Pritchard, 45 M.J. 126 (C.A.A.F 1996)

Court and Agency Decisions and Orders (including case law)

This U.S. Court of Appeals for the Armed Forces decision rejected an appeal of a service member's conviction for willfully violating a safe sex order, sodomy, and two counts of aggravated assault. The court rejected the appellant's arguments that the safe sex order did not apply to oral sex, that he could not be prosecuted under the order, and that the order unconstitutionally forced him to use condoms when having sexual intercourse with his wife. The original sentence, including dishonorable discharge, confinement for three years, total forfeiture, and reduction to the lowest enlisted pay grade, was upheld.

After Pritchard, the appellant, was diagnosed as HIV positive, his commander issued an order that required him to verbally notify all prospective sexual partners and use a condom when engaging in "sexual intercourse." Pritchard plead guilty to willful disobedience of the safe sex order by not wearing a condom during sodomy and failing to advise his partner of his HIV infection. However, he challenged the providence of his plea because the order did not explicitly mention oral sex. The court rejected this argument and found that oral sodomy was too closely related to sexual intercourse to make a distinction.

Furthermore, the court denied Pritchard's claim that he could not be lawfully prosecuted under the order, stating that he had waived any potential defenses by pleading guilty to the orders' offenses. The court cited U.S. v. Johnson 's assertion that "the military services and society at large have a compelling interest to ensure that those who defend the nation remain healthy and capable of performing their duty" and dismissed Pritchard's public policy argument that the order purported to regulate the commission of an act that is already a crime. The court admitted that the order raised constitutional concerns around the fundamental right to procreate; however, it concluded that the defendant conceded the issue when he admitted that the military had a special interest in protecting his wife and the civilian community from "egregious injury."



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