This United States Court of Military Appeals decision affirms the court martial of an HIV-positive staff sergeant for violating a "safe sex" order and committing forcible sodomy.
The Air Force issued the safe sex order after the staff sergeant was diagnosed with HIV. Among other mandates, the order specifically instructed him to refrain from acts of homosexuality and sodomy, to disclose his HIV status to sexual partners, and to "take affirmative steps during any sexual activity" to protect his sexual partner from coming into contact with his bodily fluids. The staff sergeant was court martialed after he performed oral sex on another male officer when he was asleep.
On appeal, the court evaluated whether the order's anti-sodomy and HIV criminalization provisions violated the man's constitutional right to privacy. The court held that any personal privacy concerns, including those related to the anti-sodomy provision, were outweighed by the military's interest in military readiness and in safeguarding the health of its members so that they remain healthy and capable of performing their duty. The opinion noted that many other states had laws criminalizing HIV transmission.
In addition, the court cited Bowers v. Hardwick in finding that forcible sodomy was not constitutionally protected. However, in 2003, Lawrence v. Texas overturned Bowers v. Hardwick, so it is unclear what effect the Lawrence decision could have had on this case.
The staff sergeant also claimed that the safe sex order was overly broad because it limited service members' sexual behavior with both civilians and individuals in the military. The court disregarded this argument because the staff sergeant was not charged with violating the order in this manner.