This is a United States Court of Military Appeals decision affirming a trial court's convictions of aggravated assault and indecent acts for an HIV-positive man accused of having unprotected sex with multiple women, some of whom contracted HIV.
The court affirmed that the accused was properly prosecuted on the basis of an intentional battery theory, finding that intentional battery constitutes an assault within the meaning of the military's assault code. The "intent" in this case was the "intent to have unprotected intercourse."
The court also affirmed the conviction of indecent acts – acts not specifically proscribed by the military code but prosecuted as acts that are indecent and that prejudice the military's good order and discipline. The court reasoned that indecent acts may be appropriately charged as a lesser-and-included offense within the rape statute since all its elements are a subset of the elements of rape.
The decision relies on the trial court's flawed analogy of the penis of an HIV-positive person as a loaded gun that is readily able to transmit HIV. As a result, the case reaffirms previous holdings that unprotected intercourse by a service member who knows that he carries HIV can be punished as an assault under the Uniform Code of Military Justice, Article 128(a), 10 U.S.C.A. § 928(a).