Published May, 2008

U.S. v. Dacus, 66 M.J. 235 (C.A.A.F. 2008)

A married army staff sergeant was charged with two counts of attempted murder in military court after it was discovered that he was having sex with women outside of his marriage without informing them that he is HIV positive. He wore a condom with one partner, but didn't use condoms with another. The record showed he had been counseled about his HIV and told to use condoms. Dacus pleaded not guilty to the attempted murder charges, but pleaded guilty to the lesser offense of aggravated assault and also to adultery, and was convicted consistent with these pleas.

Dacus' medical expert testified that, even without being on treatment, Dacus' viral load was very low and that it is this level of viral load that determines risk of transmission. He maintained that although HIV transmission was possible, it was very, very low. He also testified that while Dacus was likely to stay healthy for an extended period, the disease progression of anyone whom he might infect would not necessarily be the same.

While the conviction was upheld on appeal, in a concurring opinion one of the judges questions whether the legal elements of an aggravated assault charge can be met if the actual risk of HIV transmission is very low. The court notes that "there is a point where the statistical risk of harm is so low that the statutory standard of 'likely to produce death or grievous bodily harm' is not satisfied."