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US-PEREZ.ASC
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/* This case is reported in 33 M.J. 1050. This military case
holds that although a serviceman was positive for HIV exposure,
due to his vasectomy, he was incapable of infecting others with
HIV and therefore, did not violate the requirements of an order
requiring he use a condom when engaging in intercourse. The
case's actual ruling is a dismissal of the charges, as the
service member died during consideration of the appeal. */
United States, Appellee
v.
Staff Sergeant Juanito Perez, 108-44-1641, United States Army,
Appellant
US Army Court of Military Review
27 November 1991
Reconsideration Denied 17 January 1992
OPINION OF THE COURT
CREAN, Judge:
The appellant was tried by a military judge sitting as a special
court-martial for aggravated assault and adultery, in violation
of Articles 128 and 134, Uniform Code of Military Justice, 10
U.S.C. 928 and 934 (1982) [hereinafter UCMJ]. He was found
guilty of a lesser included offense, assault consummated by a
battery, and the adultery. The convening authority approved the
adjudged sentence of a bad-conduct discharge. This case involves
the issue of whether a soldier who has the Human Immunodeficiency
Virus (herein-after referred to as HIV), the viral agent that
causes the usually fatal Acquired Immunity Deficiency Syndrome
(AIDS), [footnote 1] but is incapable of transmitting it by
sexual contact, may be convicted of assault consummated by a
battery for an act of consensual sexual intercourse.
The appellant tested positive for HIV in 1986. From February to
August 1989, appellant and Ms. E worked in the same office at
Fort Devens, Massachusetts. In August 1989, Ms. E started a new
job in another Fort Devens' office and had no further working
relationship with the appellant. In September 1989, the
appellant and his wife of 17 years separated and entered into a
formal separation agreement. The separation agreement provided
that each party "could conduct individual business and personal
affairs without interfering with each other in any way, just as
if [they] were not married". In November 1989, appellant again
met Ms. E again and they had three dates between November 1989
and January 1990. On each date, they had consensual sexual
intercourse in the privacy of Ms. E's bedroom at her off-post
residence. On the first date before engaging in sexual
intercourse, Ms. E told the appellant she had condoms for his
use. The appellant informed her that would not be necessary since
he "had been fixed", and condoms were not used in any of the
three incidents of sexual intercourse. Ms. E was aware that the
appellant was having marital problems and was separated from his
wife. In January 1990, a friend of Ms. E's, knowing she was
dating the appellant, informed her that he was HIV positive.
The government's expert witness on the AIDS virus, Colonel
(Doctor) Tramont of Walter Reed Army Medical Center, testified
that the HIV virus is transmitted through sexual relations or the
transfusion of blood or blood products. He further testified,
referring to normal heterosexual sexual acts, as follows:
Q. [H]ow is this virus transmitted?
A. Well, the ejaculation contains lots of different cellular
materials from sperm to cells to red cells, macrophages, even the
field cells that line the ureter or the vasodentins or the
urethra; and it is those cells which are felt to be infected. It
is those cells when transmitted to the spouse or to the contact
either through sex or through blood transfusion and that's when
the infection occurs or takes hold.
Q. In a scenario involving a male with the virus, as in this
case Walter Reed Stage III-HIV, if that person were to ejaculate
into the female does her body actually come in contact with the
virus?
A. If there is a virus in the ejaculation, yes.
Q. And based on the scenario, would there be HIV in that semen?
A. If-there could be. No one can say if it is there all the
time.
Upon cross examination by the defense counsel, Doctor Tramont
explained:
Well, the greater the likelihood of the infection being spread by
genital secretions is related to the number of cellular elements
in that fluid. An ejaculate has more cellular elements than does
the lubrication that normally occurs before full ejaculation.
And so that's why I say that it is much more likely if you have a
full ejaculation.
The pertinent question that Doctor Tramont was never asked is
what effect a vasectomy has on the ability of a HIV - positive
male to transmit the AIDS virus in vaginal sexual intercourse.
Doctor Wright, the defense expert on the HIV disease (a former
Army doctor and colleague of Doctor Tramont, who had worked
extensively in the Army's HIV research program and was engaged in
HIV research in private practice) testified that the appellant's
medical records show that he had a vasectomy and that-
Based upon the fact that Sergeant Perez has a vasectomy and the
fact that he has not transmitted the virus either to his wife or
to other sexual partners, my best medical opinion is that
Sergeant Perez can't transmit the virus because he has an
acellular semen specimen.
[1, 2] The appellant contends that the evidence is legally
insufficient to support a finding of guilty to assault
consummated by a battery because based upon the unrebutted
testimony of Doctor Wright, it was factually impossible for the
appellant to commit the battery. The standard for this court's
review for legal sufficiency is whether considering the evidence
in the light most favorable to the prosecution, a reasonable fact-
finder could have found all the essential elements beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The test for factual
sufficiency is whether, after weighing the evidence in the record
of trial and making allowances for not having personally observed
the witnesses, the members of the Court of Military Review are
themselves convinced of the accused's guilt beyond a reasonable
doubt United States v. Turner, 25 M.J. 324, 325 (C.M.A.1987);
United States v. King, 32 M.J. 558, 562 (A.C.M.R.1991); Article
66, UCMJ, 10 U.S.C. 866.
It is well settled that an HIV - positive soldier can be
convicted of assault under Article 128, UCMJ, for engaging in un
warned, unprotected sexual intercourse. United States v. Johnson,
30 M.J. 53 (C.M.A.1990), cert. denied --- U.S. ---, 111 S.Ct 294,
112 L.Ed.2d 248 (1990): United States v. Stewart 29 M.J. 92
(C.M.A.1989). In the reported cases, however, there was no issue
whether the infected soldiers were capable of transmitting the
HIV virus.
[3, 4] Under the UCMJ, an assault can be done by an offer, by an
attempt, or by a battery. We will discuss the facts of this case
in relation to these three theories. The gravamen of an offer-
type assault is the placing of the victim in reasonable
apprehension of an immediate unlawful touching of her person. It
is not a defense that the offered touching cannot actually be
accomplished. Manual for Courts-Martial, United States, 1984,
Part IV, para. 54c [hereinafter MCM, 1984]. United States v.
Pittman, 42 C.M.R. 720 (A.C.M.R.1970), United States v.
Hernandez, 44 C.M.R. 500 (A.C.M.R.1971). Since Ms. E did not
learn until long after the sexual encounters that the appellant
was HIV-positive, and since the sexual encounters occurred with
her consent, the evidence is not legally sufficient to support a
finding of assault on the offer theory.
[5] An act of private, consensual, non-deviate, unprotected, and
unwarned heterosexual intercourse by an HIV positive soldier can
be the basis for an assault by either the attempt or battery
theory. An assault by attempt is an overt act done with apparent
present ability to apply force to the victim. The assault is a
battery when the overt act actually applies force to the other
person. MCM, 1984, Part IV, para. 54c. The government must
prove beyond a reasonable doubt that the instrument used under
the circumstances was likely to result in harm, making the act an
offensive touching. MCM, 1984, Part IV, para. 54c(1).
Consensual sexual intercourse itself is not offensive touching;
the ability to place the HIV-virus in the body of an unaware
victim is the offensive touching. The government expert in this
case testified that the AIDS virus can be transmitted in an act
of heterosexual sexual activity if the virus is in the
ejaculation. The defense expert testified that in his opinion,
because of the appellant's vasectomy, the appellant's semen was
acellular and he could not, therefore, transmit the AIDS virus
during sexual intercourse.
Accordingly, we hold that the evidence is legally insufficient to
support a conviction of assault consummated by a battery, because
the government has failed to prove an essential element of the
offense, that the appellant had the ability to assault the victim
by transmitting the HIV virus. [footnote 2]
This holding may answer Judge Cox's concern whether a soldier
with the HIV virus commits an offense when he uses a condom
throughout sexual intercourse and thereby does not subject the
victim to the risk of the AIDS virus. Johnson, 30 M.J. at 58 n. 8
(C.M.A.1990).
In his second assignment of error, the appellant asserts that the
evidence is both legally and factually insufficient to support a
finding of guilty to the offense of adultery. Adultery is a
military criminal offense under Article 134, UCMJ. United States
v. Hickson, 22 M.J. 146 (C.M.A.1986). Among other elements, the
government must prove that under the circumstances the adulterous
act of sexual intercourse was either prejudicial to good order
and discipline in the armed forces or was of a nature to bring
discredit upon the armed forces.
[6-10] We are not prepared to state a per se rule that sexual
intercourse with a person not his or her spouse by a married
soldier under any circumstance constitutes the offense of
adultery under Article 134, UCMJ. Article 134 is not "a catchall
as to make every irregular, mischievous, or improper act a court-
martial offense." United States v. Sadinshy, 34 C.M.R. 343, 845
(C.M.A.1964). The government must prove, either by direct
evidence or by inference, that the accused's conduct was preju
dicial to good order and discipline in the armed forces or was of
a nature to bring discredit on the armed forces. The prejudice
must be reasonable and directly and palpably prejudicial to good
order and discipline. MCM, 1984, Part IV, para. 60(c)(2)(a),
United States v. Sadinsky, 34 C.M.R. at 345; United States v.
Williams, 26 M.J. 606 (A.C.M.R.1988). The conduct must bring the
service into dispute or lower it in the public esteem. MCM,
1984, Part IV, para. 60(c)(3). Civilians must be aware of the
behavior and the military status of the offender. United States
v.Kirksey, 20 C.M.R. 272 (C.M.A.1955). Open and notorious
conduct may be service discrediting, while wholly private conduct
is not generally service discrediting. United States v. Berry, 20
C.M.R. 325 (C.M.A.1956). We do not agree with the government's
position that the appellant's HIV positive condition is itself
sufficient to show prejudice to good order and discipline in the
armed forces or of a nature to bring discredit on the armed
forces.
[11] The facts are not in controversy. From November 1989 to
January 1990, the appellant was still married but separated from
his wife. The appellant engaged in consensual sexual intercourse
and Ms. E was aware of the appellant's marital status. The acts
were done in the privacy of Ms. E's home, off-post, the parties
did not have a work relationship, and the government did not
prove that the appellant was able to transmit the HIV disease in
sexual intercourse. We find no evidence in the record that the
appellant's conduct adversely affected good order and discipline.
Accordingly, we hold that the evidence is legally insufficient to
prove prejudice to good order and discipline.
[12] Likewise, the sexual intercourse was with a civilian having
no military or work relation with the accused, off-post, in the
privacy of a bedroom, and the government did not prove that the
appellant was able to transmit the HIV disease in sexual
intercourse. While the appellant was still technically married
to his wife, the separation agreement would appear to permit sex
ual intercourse with another woman without violating the sanctity
of the marriage contract. The government presented no evidence
that the conduct offended local law or community standards.
[footnote 3] On the record before us, we are not convinced
beyond a reasonable doubt appellant's conduct in this case was of
a nature to bring discredit on the armed forces. Accordingly, we
hold that the evidence is legally insufficient to prove discredit
on the armed forces.
The findings of guilty and the sentence are set aside and the
charges and specifications are dismissed.
Senior Judge FOREMAN and Judge ISKRA concur.
Note: The appellant died on February 6, 1992. Thereafter, the
U.S. Army Court of Military Review entered an order abating the
court-martial proceedings ab initio.
FOOTNOTES:
1. For an excellent analysis of the AIDS virus under the UCMJ.
see Wells-Petry, Anatomy of an AIDS Case: Deadly Disease as an
Aspect of Deadly Crime. The Army Lawyer. Jan. 1988, at 23.
2. Our holding is based on a failure of proof; we do not
determine as a matter of medical scientific fact that a HIV-
positive male who had a vasectomy cannot transmit the AIDS virus
through sexual intercourse.
3. Adultery is a criminal offense in Massachusetts.
Mass.Ann.laws Ch. 272. Sec. 14 (1991). It is even a crime for a
married, consenting adult to have sexual intercourse in private
with a person not his or her spouse. Commonwealth v. Stowell, 389
Mass. 171, 449 N.E.2d 357 (1983).