U.S. v. Goldsmith, A.C.M 31172, 1995 WL 730266 (A.F. Ct. Crim.App. 1995)

This U.S. Air Force Court of Criminal Appeals opinion follows an earlier holding in United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), which held that death and serious bodily harm are always the natural and probable consequences of having unprotected sexual contact with someone who is HIV positive. Relying on US v. Joseph, the Goldsmith court found that despite the absence of transmission to the defendant's sexual partners and expert testimony that his behavior posed a relatively low risk, his convictions should be upheld.

Over the course of the five years after he was diagnosed with HIV, Goldsmith, the appellant, had sex with two women. He admitted that he failed at times to use a condom and to inform his partners of his status, contrary to a "safe-sex" order issued by a superior. Goldsmith never ejaculated in either woman, and both women tested negative for HIV. Even still, Goldsmith was convicted of two specifications of willful disobedience of the order of a superior commissioned officer, two specifications of assault with a means likely to inflict death or grievous bodily harm, and one specification of assault consummated by a battery. On appeal, Goldsmith pointed to expert testimony that showed that, based on his behavior, he was unlikely to transmit the virus to his partners. This, compounded with the fact that neither woman tested positive for HIV, challenged the prosecution's case that the likelihood of transmission was "more than merely a fanciful, speculative, or remote possibility."

The appellate court disagreed. Citing Joseph, the court explained that the actual statistical probability of harming another is irrelevant because it is invariably assumed that there is a high likelihood of death when a person with HIV has unprotected sex. The court also addressed Goldsmith's claim that his sentence of forfeiture of $2,500 pay per month for 72 months and six years of confinement (which was likely the rest of his life, given his medical condition) were excessive. Noting that this punishment probably deprived Goldsmith of his last opportunity to spend time with his children, the court still upheld the sentence, calling his actions "a total disregard for his responsibilities as an officer and evidence [of] a callous disregard for the lives of his sexual partners."