WICHITA KAN — The highest U.S. military court’s reversal of a Kansas airman’s aggravated assault conviction for exposing multiple sex partners to HIV at swinger parties in Wichita will effectively end such prosecutions in the armed forces, his attorney said.
The U.S. Court of Appeals for the Armed Forces unanimously ruled Monday that prosecutors failed to prove that any of David Gutierrez’s acts were likely to transmit HIV to his partners. (see ruling)
That decision overturns a 25-year precedent that had allowed military personnel to be convicted of aggravated assault solely on the basis of a positive HIV test, attorney Kevin McDermott said Tuesday. Gutierrez was not accused of infecting anyone with HIV. The court upheld a lesser conviction of assault by battery for offensive touching to which his sexual partners did not provide meaningful informed consent. It also upheld his conviction for adultery, even though his wife participated with him in the swinger lifestyle. The court said his wife’s participation is “immaterial to the question” of whether the government presented sufficient evidence to sustain the conviction.
Gutierrez was a sergeant at McConnell Air Force Base in Wichita in 2011 when he was stripped of his rank and sentenced to eight years behind bars. At the time, Gutierrez was found guilty of the aggravated assault charge, as well as of violating an order to notify partners about his HIV status and to use condoms. He was also convicted of indecent acts and adultery.
The appeals court on Monday upheld the lower court’s decision on the other charges and sent the case back to the lower court to reassess his sentence. The airman, who has been imprisoned since his arrest in August 2010, could be released from Fort Leavenworth prison within the next couple of weeks, McDermott said. Gutierrez could still be issued a bad conduct discharge, rather than the more severe dishonorable discharge that he had previously faced. In his appeal, Gutierrez challenged whether the risk to his sexual partners was high enough to constitute aggravated assault. Defense lawyers argued the risk of infection by an HIV-positive man during sexual intercourse with a woman ranged from a 1-in-10,000 to 1-in-100,000 chance per sexual encounter, which they contend is so low that it doesn’t meet the legal standard for assault. Prosecutors countered that the exposure risk was closer to 1 in 500.
The court concluded that even if the risk were 1 in 500, transmission of the disease was not “likely” to occur. McDermott said in a statement late Monday that the ruling “effectively ended the prosecution of cases in the military that allege the likelihood of grievous injury merely upon the diagnosis that a service member has been diagnosed with Human Immunodeficiency Virus (HIV) and who engages in intercourse without their partner’s knowledge of HIV determination.” “It’s not just a technicality,” he told The Associated Press Tuesday. “They actually overturned two prior court precedents that supported these prosecutions.”
OMSJ note: Anyone who followed this case knows that Gutierrez’ original attorneys deliberately excluded OMSJ’s involvement, which likely contributed to Gutierrez’ original conviction. The case also revealed that Gutierrez’ personal physician, Donna Sweet MD received $2.93 million from Bristol-Myers Squibb (BMS) weeks after she testified against her own patient. BMS is the maker of the drug Sustiva, the highly addictive psychotropic ingredient contained in the drug Atripla, which generated $3.57 billion in sales for HIV drug giant Gilead Sciences in 2012. Dr. Sweet prescribed Atripla to her patient despite the fact that Gutierrez had no signs or symptoms of HIV infection. In his press release, attorney Kevin McDermott wrote:
Should such a rehearing occur before a trial court, David Gutierrez’ defense will assert in mitigation that his original diagnosis of HIV was not supported by his medical history nor by the testing protocol employed by the Air Force. In the original application for clemency submitted on behalf of David Gutierrez shortly after his trial, experts opined that David Gutierrez was, in all likelihood, HIV free and the diagnosis was in error.
Predictably, when Associated Press reporter Roxana Hegeman wrote about this case, she failed to mention that OMSJ was the driving force behind this appeal and that, without OMSJ’s involvement and funding, no appeal would have taken place. Of OMSJ’s involvement, McDermott wrote:
The expertise and investigation into the underlying circumstances and the facts in this case was provided through the efforts of Clark Baker and the personnel and experts of the Office of Medical Science and Justice, [OMSJ]… Without OMSJ’ s efforts and diligence, the results in this case could not have been possible.
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