U.S. v. Bygrave, 46 M.J. 491 (1997).

Court and Agency Decisions and Orders (including case law)

This is a United States Court of Appeals for the Armed Forces decision affirming the aggravated assault conviction of a man who transmitted HIV to a consensual sexual partner to whom he had previously disclosed his HIV status.

Relying on U.S. v. Joseph, the court holds that consent is not a defense to aggravated assault because the act of sexual intercourse is itself "offensive touching." The court reasons that one cannot consent to an act which is likely to result in grievous or bodily harm.

The court relies on overturned Constitutional case law, specifically Bowers v. Hardwick, in holding that the appellant has "no Constitutional right to sex." The court goes further in stating that even if there is a Constitutional right to privacy, compelling government interests outweigh any potential privacy concerns because service members who are HIV-positive are less able to carry out their duties and may impose on the government extraordinary medical costs related to their treatment and care.