This United States Army Court of Criminal Appeals decision held that if the likelihood of infection from HIV was not more than a remote possibility, a servicemember could not be convicted of assault with a means likely to produce death or grievous bodily harm. A servicemember was convicted at trial of assault with a means likely to produce death or grievous bodily harm as a result of having consensual, unprotected sex with several other servicemen. Prior to this sexual contact, the servicemember was diagnosed with HIV in 2010. She began to undergo medical treatment with a doctor in July 2010, and as a result was able to achieve an undetectable viral load. At trial, the servicemember’s doctor testified that the risk of transmission with an undetectable viral load, using a latex condom with no breakage, was remote.
Based largely on this expert testimony, the court found for the servicemember on the issue of whether her actions constituted assault with a means likely to produce death or grievous bodily harm. It held that the evidence did not establish beyond a reasonable doubt that the probability of infection was more than a remote possibility. Therefore the appellant’s conviction on assault was reversed and reduced to battery.