HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/NEGRON.ASC

Text File | 1993-01-14 | 17KB | 335 lines

/* This case is reported in 28 M.J. 775. This is another HIV
battery case from the military courts. Although the servicemember
used a condom when engaging in sex, the court found that he had
violated an order requiring him to inform partners of his HIV
positive status. This case litigates the constitutionality of
such requirement. */

UNITED STATES, Appellee,

v.

Specialist Gerardo L. NEGRON, 145-62-3802, United States Army,
Appellant.

U.S. Army Court of  Military Review.

28 April 1989.



OPINION OF THE COURT

HOSTLER, Judge:

Before a military judge sitting alone as a general court-martial,
appellant pleaded guilty to two specifications of willful
disobedience of a lawful order and two specifications of adultery
in violation of Articles 90 and 134, Uniform Code of Military Jus
tice, 10 U.S.C. 890 and 934, respectively. [footnote 1] The order
in question required appellant to forewarn prospective sex
partners that he had been diagnosed as being infected with the
human immunodeficiency virus (HIV) and required him to wear a
condom when having intimate sexual relations. [footnote 2]

A brief recitation of the facts relevant to our decision is in
order.  Appellant was married, but living apart from his spouse.
In June 1987, he was advised of a confirmed medical diagnosis
that he carries the HIV antibody, a viral condition recognized as
progenitor to the acquired immunodeficiency  syndrome  (AIDS)
disease. During the same month, he was counseled at length
regarding the implications of this diagnosis.  The counseling
included a discussion of the deadly nature of the AIDS disease
and the means through which the virus might be transmitted to
others. One such means is intimate sexual contact.

In August 1987, appellant received a verbal and written order
from his commanding officer requiring that he inform prospective
sex partners of his diagnosed HIV condition before engaging in
intimate sexual relations and that he wear a condom when having
intimate sexual relations. [footnote 3] In October 1987, on two
separate occasions approximately one week apart, appellant
engaged in sexual intercourse with PVT O. While he did wear a
condom on both occasions, he did not inform PVT O of his medical
condition or of his marital status. [footnote 4] Based on these
facts, appellant pleaded guilty to adultery and willful
disobedience of a lawful order.

Appellant now, for the first time, challenges the lawfulness and
constitutionality of the order and argues that his pleas of
guilty are therefore improvident. [footnote 5] He further asserts
that the Article 90 (disobedience of a lawful order)
specifications are multiplicious for findings with each other and
with the Article 134 (adultery) specifications; that the military
judge erred in failing, sua sponte, to recognize and address
these multiplicities; and that his sentence is inappropriately
severe.  With all these contentions, we disagree.

Lawfulness of the Order

[1]  It is well established that commanders have the authority to
regulate all activities reasonably necessary to safeguard and
protect the morale, discipline and usefulness of their commands.
United States v. Martin, 5 C.M.R. 102 (C.M.A.1952). While broad,
such authority is not without limitation.  United States v.
Green, 22 M.J. 711, 716  (A.C.M.R.1986).  The Manual for Courts-
Martial recites, in this regard, that lawful orders

must relate to military duty, which includes all activities
reasonably necessary to accomplish a military mission, or safe
guard or promote the morale, discipline, and usefulness of
members of a command and directly connected with the maintenance
of good order in the service. The order may not, without such a
valid military purpose, interfere with private rights or personal
affairs. However, the dictates of a person's conscience, reli
gion, or personal philosophy cannot justify or excuse the
disobedience of an otherwise lawful order. ...  The order must
not conflict with the statutory or constitutional rights of the
person receiving the order.

MCM, 1984, Part IV, para. 14c(2)(a)(iii) and (iv). See also id.,
para. 16c(1)(c) ("A general order or regulation is lawful unless
it is contrary to the constitution, the laws of the United
States, or lawful superior orders or for some other reason is
beyond the authority of the official issuing it.").

[2]  Appellant has not challenged the military purpose of his
commander's "safe sex" order. That the order is supported by such
a purpose is clear from the record and from the guidance set
forth in Army Regulation 600110. See also United States v.
Womack, 27 M.J. at 633 (unit health and keeping a unit free from
disrepute are valid bases for an order requiring members infected
with HIV to inform sexual partners of their condition and to
practice safe sex). Appellant, however, asserts that the order he
disobeyed impermissibly conflicts with a privacy right founded in
the Constitution.

The Constitution of the United States does not expressly
articulate a right to privacy.   The  United  States  Supreme
Court, however, has recognized, as emanating from various express
constitutional guarantees, certain "penumbral" rights of privacy.
See e.g. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678,14
L.Ed.2d 510 (1965) (contraceptives in marital situations);
Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349
(1972) (contraceptives in nonmarital situations); Pierce v.
Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070
(1925), Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed.
1042 (1923) (child rearing and education); Prince v.
Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944)
(family relationships); Skinner v. Oklahoma, ex rel. Williamson,
316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (procreation);
Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817,18 L.Ed.2d 1010
(1967) (marriage); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973) (abortion).  Among these is a penumbral
privacy right protecting some aspects of sexual intimacy in the
context of the marital relationship. Griswold v. Connecticut, 381
U.S. 479, 85 S.Ct. 1678.  The courts, however, have to date
neither recognized nor created a constitutionally protected pri
vacy right in nonmarital or extramarital sexual relations.
Indeed, various forms of nonmarital and extramarital sexual
conduct fall within well recognized areas of traditional and
statutory proscription. See, e.g. Bowers v. Hardwick, 478 U.S.
186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (there is no
fundamental right to consensual homosexual sodomy); United States
v. Hickson, 22 M.J. 146,150 (C.M.A.1986) (adultery and
fornication committed by unmarried persons under circumstances
which are not strictly private are punishable under military
law); United States v. Johanns, 20 M.J. 155 (C.M.A.) cert.
denied, 474 U.S. 850,106 S.Ct. 147, 88 L.Ed.2d 122 (1985)
(restrictions on contacts between officers and enlisted persons,
male/female or otherwise, can be imposed where there is direct
supervisory relationship); United States v. Scoby, 5 M.J. 160
(C.M.A.1978) (consensual nonprivate heterosexual sodomy is a prop
erly chargeable offense in the military); United States v.
Womack, 27 M.J. at 632-34 (homosexual sodomy is not a protected
activity).  The Supreme Court stated in Bowers v. Hardwick, 106
S.Ct. at 2844, that any claim that the Supreme Court's right of
privacy cases "stand for the proposition that any kind of sexual
conduct between consenting adults is constitutionally insulated
from state proscription is unsupportable."  Appellant's acts of
adultery with PVT 0 fall within such an area of proscription.
Accordingly, his contention that he enjoys a constitutionally
protected privacy "right to freely, and without limitation,
engage in consensual, private, intimate heterosexual relations"
is without merit.

In United States v. Womack, 27 M.J. 630, the Air Force Court of
Military Review, en banc, upheld the conviction of an HIV
infected staff sergeant who disobeyed an order similar in
substance to the one involved in the present case.  The order
given to Sergeant Womack required him to "inform all present and
future sexual partners" of his infection, and to "avoid
transmitting the infection to other persons by taking affirmative
steps during any sexual activity" to protect his sexual
partner(s) from contact with his "blood, semen, urine, feces, or
saliva." Id. at 633634. Sergeant Womack violated his order by
engaging in an unforewarned and unprotected act of nonconsensual
sodomy.  Specialist Negron violated his order by not warning PVT
O of his condition before engaging in consensual sexual
intercourse. [footnote 6] In violating those orders, Sergeant
Womack and Specialist Negron exposed their unwitting sexual
partners to the possibility of infection with HIV and the
consequences which potentially attend such infection.

To the extent that Sergeant Womack or Specialist Negron may have
had some expectation of privacy in their sexual activities, that
expectation must be subordinated to the constitutionally
recognized and compelling principle that

in every well-ordered society charged with the duty of conserving
the safety of its members the rights of the individual in respect
of his liberty may at times, under the pressures of great
dangers, be subjected to such restraint, to be enforced by
reasonable regulations, as the safety of the general public may
demand.

Jacobson v. Massachusetts, 197 U.S. 11, 29, 25 S.Ct. 358, 362, 49
L.Ed. 643, 651 (1905). [footnote 7] This same compelling
principle caused the Court of Military Appeals to uphold as
reasonable and lawful a Navy regulation requiring a medical
certificate showing the absence of certain communicable diseases
as a prerequisite to approval for a service-member to marry a
foreign national, United States v. Wheeler, 30 C.M.R. 387 (C.M.
A.1961), and the Navy Board of Review to uphold an order to
obtain  inoculation against certain diseases in the face of a
claim of conflicting religious convictions, United States v.
Chadwell, 36 C.M.R. 741 (N.B.R.1965).  In United States v.
Womack, 27 M.J. 630, the Air Force Court of Military Review
applied this same reasoning to uphold a "safe sex" order.  Thus
based on an overwhelming need to protect servicemembers as well
as the general public, we find that the order which Specialist
Negron disobeyed was both reasonable and lawful. The requirement
that the appellant forewarn prospective sexual partners of his
infection with HIV "merely establishes a reasonable, common sense
requirement for notice to others with whom the recipient [of the
order] intends to become intimately engaged. Absent this
threshold requirement, the disease might spread rampantly among
an unwitting base population."  United States v. Womack, 27 M.J.
at 633.  The "safe sex" order given to appellant was a minimally
restrictive and eminently reasonable measure in furtherance of a
compelling public health interest. [footnote 8]  The order is
lawful and its violation constituted a criminal offense.



Multiplicity

[3]  Appellant also asserts on appeal that the two specifications
of willful disobedience of a lawful order are multiplicious for
findings with each other and with the specifications of adultery.
Appellant's failure to raise these assertions at trial has served
to waive them.  United States v. Jones, 23 M.J. 301 (C.M.A.1987);
R.C.M. 907(b)(3)(B) (upon a timely motion, a specification may be
dismissed if it is multiplicious with another specification).

[4]  Even if this were not so, appellant's assertions of
multiplicity are incorrect. The two separate order violations
resulted in two separate unwarned opportunities for transmission
of the HIV infection to another soldier- each with a separate
probability of occurrence.  Specialist Negron is and should be
separately accountable for each. This is especially so in this
case where a week elapsed between the two unwarned intimacies
during which appellant had ample opportunity to reconsider and
abandon, rather than repeat, his criminal course of conduct.  See
United States v. Abendschein, 19 M.J. 619 (A.C.M.R.1984), pet.
denied, 21 M.J. 84 (C.M.A.1985). Furthermore, the order
violations are not multiplicious with the appellant's acts of
adultery. Specialist Negron's two separate instances of
disobedience to his commander's lawful order simply are not
fairly embraced within his acts of adultery.  See United States
v. Womack, 27 MA. at 630 (the disobedience of the notice and the
protection portions of the commander's order are not fairly em
braced within the act of forcible sodomy).



Sentence Appropriateness

[5]  We have considered and reject the appellant's argument that
the portion of his sentence imposing a bad-conduct discharge is
inappropriately harsh.

The findings of guilty and the sentence are affirmed.

Senior Judge MYERS and Judge BASHAM concur.



FOOTNOTES:

1.   His sentence, approved by the convening authority, included
a bad-conduct discharge, forfeiture of $447.00 pay per month for
six months, and reduction to the grade of Private E1.

2.   The requirement for such an order and the form of the order
are set out in Army Reg. 600-110,  Personnel -General
Identification, Surveillance, and Administration of Personnel
Infected with Human Immunodeficiency Virus (HIV) (11 March 1988).

3.   The appellant stipulated at trial that he understood
"intimate relationships" to include sexual intercourse, and that
even if he wore a condom during such relations, there remained
some chance that he could transmit HIV to his sexual partner.

4.   The record indicates that appellant decided not to advise
PVT O of his medical circumstance out of embarrassment and a fear
of rejection.

5.   In United States v. Womack, 27 M.J. 630 (A.F. C.M.R.1988),
the lawfulness of a similar order was litigated and preserved for
appeal through entry of a conditional plea under Manual for
Courts-Martial, United States, 1984, Rule for Courts-Martial  910
(a)(2)  [hereinafter  MCM, 1984 and R.C.M., respectively].  We
commend such procedure where appropriate to the consideration of
trial defense practitioners.

6.   We note that since PVT O was not made aware of Specialist
Negron's HIV infection prior to engaging in sexual intercourse
with him, her consent was uninformed. See United States v. Woods,
27 M.J. 749 (N.M.C.M.R.1988) for an interesting analysis of the
import of consent in AIDS-related allegations of criminal
conduct. Other criminal, as well as civil consequences may attend
unwarned sexual encounters where the AIDS virus may be
transmitted. See United States v. Johnson, 27 M.J. 798
(A.F.C.M.R.1988) and cases cited therein. See also Rock Hudson's
Male Lover Is Awarded S14.5 Million, The Washington Post, Feb.
16, 1989, at 1, for a discussion of the civil suit brought by an
unwarned male sex partner against the estate of the late actor
Rock Hudson, who died of AIDS complications.

7.   In Jacobson, the Supreme Court upheld a State law requiring
persons to obtain smallpox vaccinations against a claim that the
Massachusetts compulsory vaccination law was "unreasonable,
arbitrary and oppressive."  In addressing this matter, the Court
stated that the liberty secured by the Constitution of the United
States to every person within its jurisdiction does not import an
absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold
restraints to which every person is necessarily subject for the
common good.  On any other basis organized society could not
exist with safety to its members. ... "The possession and
enjoyment of all rights are subject to such reasonable conditions
as may be deemed by the governing authority of the country
essential to the safety, health, peace. good order and morals of
the community.  Even liberty itself, the greatest of all rights,
is not unrestricted license to act according to one's own will.
It is only freedom from restraint under conditions essential to
the equal enjoyment of the same right by, others.  It is then
liberty regulated by law.

Jacobson v. Massachusetts, 197 U.S. at 26, 25 S.Ct. at 361
(quoting Crowley v. Christensen, 137 U.S. 86. 89, 11 S.Ct. 13,
15, 34 L.Ed. 620 (1890).

8.  Merritt, "Communicable Disease and Constitutional Law:
Controlling AIDS," 61 New York University L.Rev. 739 (November
1986), discusses various restrictive measures taken in the in
terest of protecting the public from communicable disease, many
of which have withstood constitutionally based challenges.  See
also Cuba's Push to Isolate Aids, Washington Post, Health
Supplement, Feb. 14, 1989, for a discussion of restrictive
measures being employed in Cuba.