U.S. v. Stewart, 29 M.J. 92 (C.M.A. 1989)

Court and Agency Decisions and Orders (including case law)

This United States Court of Military Appeals decision affirms a lower court's convictions of a sergeant of aggravated assault, absence without leave, and failure to repair based on the appellant's guilty pleas based on knowingly exposing a female officer to HIV.

The appeal concerned whether the sergeant's guilty plea for aggravated assault met all the appropriate elements of the charge. Specifically, the appellant questioned whether "the appropriate means necessary to produce grievous bodily harm" existed if the likelihood of death from transmitting HIV was predicted to be between 30 and 50 percent. The court found that this percentage was high enough to produce a likelihood of grievous bodily harm to support an aggravated assault charge.

The court noted that in order to set aside guilty plea, there must have been "substantial conflict" in the evidence presented. Although the court conceded that research regarding the life expectancy of individuals with HIV was limited, there were no major discrepancies in the evidence at hand that could have led to overturning the sergeant's court martial.

Since this is an appellate review, this decision represents a reevaluation of the facts as they stand. Though scientists now know that the likelihood of imminent death from HIV is far below 30 to 50 percent due to advances in HIV treatment including antiretroviral medications, this decision was based on either inaccurate testimony or on outmoded science. It is unlikely that such a decision would be issued today, particularly in light of the overwhelming evidence that HIV can be managed as a chronic disease.