U.S. v. Tootle, NMCCA 9801945, 2005 WL 3215251 (N-M. Ct. Crim. App. 2005)

Court and Agency Decisions and Orders (including case law)

The U.S. Navy-Marine Corps Court of Criminal Appeals affirmed Tootle's convictions on three counts of violating the order of a superior officer, two counts of sodomy, three counts of aggravated assault, one count of indecent acts, and one count of adultery after violating a "safe-sex" order.

Tootle received a written "safe-sex" order from a superior following his HIV diagnosis. It directed that prior to engaging in any activity in which bodily fluids may be transmitted, he must inform his partner of his HIV status. Further, even if someone consented to sex with him, the appellant was to wear a condom and to advise the person that the virus could still be transferred. Years later, he began a sexual relationship with a woman whom he eventually married. Although his new wife testified that he never told her he was HIV positive, evidence suggested that he did inform her of his status and that the couple used condoms whenever they had sex. Another woman alleged she had engaged in an extramarital affair with Tootle, during which he exposed her to HIV through unprotected sex and fathered her child. A paternity test later confirmed that Tootle was not the child's father, but he was still convicted for her aggravated assault.

Tootle raised many issues on appeal, including the claim that the government's primary witnesses were not credible. He also argued that the government failed to prove that he actually gave his wife HIV, since a vasectomy had left him unable to ejaculate and she had admitted to having sex with multiple other men while they were married. In dismissing his arguments, the court cited United States v. Perez, which found that, "[i]t is well settled that an HIV-positive soldier can be convicted of assault under Article 128, UCMJ, for engaging in unwarned, unprotected sexual intercourse."

Even though the court set aside the conviction for obstruction of justice, it upheld the defendant's sentence of dishonorable discharge and confinement for approximately eight years and eight months because of his other convictions. As an unpublished opinion, this case does not serve as precedent. However, this trend of convicting HIV positive soldiers for consensual, low-risk behavior is prevalent in many commonly cited cases. 

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