This is a United States Army Court of Military Review decision
affirming a lower court's general court-martial of an officer who
pleaded guilty to two counts of adultery and willful disobedience of a
safe sex order.
The safe sex order required the officer to disclose his HIV status to
prospective partners and to wear a condom during sex. He had sexual
relations with another officer on two separate occasions, and though
he wore a condom both times, he failed to tell her that he was
HIV-positive and married. The officer pleaded guilty to adultery and
willful disobedience of a lawful order.
In his appeal, the officer argued that the safe sex order unfairly
infringed on his Constitutional right to privacy. The court rejected
this argument, relying on outdated case law, including Bowers v.
Hardwick, which held that there were no Constitutional privacy
protections for intimate conduct outside the context of marriage.
Relying on U.S. v. Womack, where the court upheld the conviction of an
HIV-positive staff sergeant who disobeyed a safe sex order, the court
found that the safe sex order in this case was reasonable because it
served a legitimate purpose in protecting service members and the
general public from a disease that "might spread rampantly." It held
that the order was a minimally restrictive and reasonable means of
furthering this compelling public health interest.
The officer also argued that the charges were multiplicious, but the
court concluded that he waived his right to appeal by failing to raise
this issue at trial. It noted that even if this were not the case, the
charges were not multiplicious because a week had elapsed between the
two violations of the safe sex order, during which the officer failed
to reconsider and abandon his criminal course of conduct.