Armed Forces News

The five civilian judges who sit on highest appeals court in the armed forces unanimously determined that an HIV-positive Air Force non-commissioned officer did not commit aggravated assault, even though he had unprotected sex with unknowing partners in violation of direct orders not to do so. The Feb. 23 ruling by the Court of Appeals for the Armed Forces overturned the lower-court conviction of Air Force Technical Sgt. David J.A. Gutierrez. According to court records, Gutierrez contracted HIV while engaging in a “swinger” lifestyle with his wife. When Gutierrez’s commander learned the airman was carrying HIV, the senior officer ordered him to abstain from unprotected sex and inform partners of his condition. Gutierrez subsequently violated that order. When sex partners found out, they came forward and informed authorities. At that point, Gutierrez was charged with aggravated assault. Ultimately, the high court ruled that the trial and lower appellate courts should have accepted evidence presented by Gutierrez’s defense lawyers that indicated his sexual indiscretions posed little risk of transmitting HIV to his partners. The court allowed a lower conviction, for assault consummated by battery, to stand. The ruling also negates Gutierrez’s sentence, which included eight years in prison, a dishonorable discharge, forfeiture of all pay and allowances, and reduction in grade to E-1. The case reverts back to the trial court, which would impose a new sentence appropriate to the lesser conviction.