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

Text File | 1993-01-14 | 19KB | 355 lines

/*  This case is reported in 27 M.J. 630. */

UNITED STATES

v.

/* This case involves a conviction for a homosexual batter by a
person who had tested positive for HIV. It is only significant as
it upholds the authority of the military to order members to
engage in "safe sex" practice against a challenge that the orders
were overbroad. */

Staff Sergeant Amos A. WOMACK, FR 448-64-9151, United States Air
Force.

U.S. Air Force Court of Military Review.

Sentence Adjudged 14 Jan. 1988.

Decided 27 Oct. 1988.

DECISION

LEWIS, Senior Judge:

The appellant pleaded guilty to willful disobedience of a lawful
order and forcible sodomy of an airman. His plea of guilty to the
offense of willful disobedience of an order was conditional. The
conditional plea preserves for appellate review the issue of the
lawfulness of the order, a matter unsuccessfully litigated by the
appellant at trial.  R.C.M. 910(a)(2).  The appellant's sentence
is a dishonorable discharge, confinement for five years,
forfeiture of all pay and allowances and reduction to airman
basic.

A discussion of the circumstances leading to the commission of
the offenses is necessary.  While the appellant was assigned in
Korea he was diagnosed as being infected with the Human
Immunodeficiency Virus (HIV).  This viral condition is described
through expert testimony in the record as the progenitor to the
Acquired Immunodeficiency Syndrome (AIDS) disease.  Although the
appellant had not developed the AIDS symptomatology at the time
of trial, there was a reasonable likelihood, based upon available
statistical evidence, that he would develop the disease at some
future time. It is undisputed that he, as others infected with
the virus, is capable of communicating the infection to others,
particularly through intimate physical contacts involving the
transmission of bodily fluids.  Those who become infected through
such a transmission are, similarly, likely to develop AIDS.

As is apparent standard procedure, the appellant was placed under
close medical supervision at the Wilford Hall Medical Center, the
centralized Air Force location for treatment and counselling of
those infected with the HIV virus.  A major portion of the
counselling received by the appellant, as with others having the
same condition, related to "safe sex" practices. This counselling
is designed to educate each HIV patient as to the precautions to
be observed to minimize the chances of passing the virus to
others. The appellant was eventually determined to be medically
fit for duty and was assigned to Homestead Air Force Base,
Florida.

/* The military regulations passed since this time would have
resulted in a much faster discharge. */

Acting  on  coordinated command-wide guidance, the appellant's
commander at Homestead issued a six part written order to him on
15 October 1987.  This order directed that the appellant refrain
from the use of illegal drugs, enunciated limitations on his
ability to donate blood or other bodily fluids, and required him
to notify health care providers of his condition.  He was not
charged with disobedience of these three portions of the order.
The three remaining portions of the order detailed safe sex
practices, and served to synthesize the counselling he had
received at Wilford Hall. The appellant was ordered to inform all
present and future sexual partners of his condition, to insure
that sexual partners were protected from contact with certain of
his bodily fluids and excretions, and to refrain from acts of
sodomy or homosexuality.

Several weeks later, on 4 December 1987, Airman T. accepted an
invitation to sleep in the appellant's room in the dormitory. Air
man T.'s roommate had requested the private use of their room
while he entertained a visiting girlfriend.  Airman T. had been
drinking heavily and was, by his testimony, somewhat intoxicated.
After accepting the appellant's invitation he fell asleep on the
floor near the appellant's bed.  Airman T. experienced an erotic
dream.  He became quite restless and suddenly awoke to find that
his penis was in the appellant's mouth. The appellant was
performing an act of fellatio on him.  Airman T. fled from the
room.  The matter was reported to appropriate authorities in very
short order.

As a result of the incident described above the appellant was
charged with forcible sodomy and willful disobedience of his
commander's order.  The willful disobedience specification reads
as follows:

In that STAFF SERGEANT AMOS A. WOMACK,  [jurisdictional
information omitted] having received a lawful command from  ...
his superior commissioned officer, then known by the said Staff
Sergeant Amos A. Womack to be his superior commissioned officer,
to inform all present and future sexual partners of his Human
Immunodeficiency Virus infection, to avoid transmitting the
infection to other persons by taking affirmative steps during any
sexual activity to protect his sexual partner from coming in
contact with his blood, semen, urine, feces, or saliva, and to
refrain from any acts of sodomy or homosexuality as prescribed by
the Uniform Code of Military Justice, regardless of whether or
not his partner consents to such acts, or words - to that effect,
did, at Homestead Air Force Base, Florida, on or about 4 December
1987, willfully disobey the same.

The order was attacked at trial and is now challenged on appeal
as being overly intrusive and, therefore, not "lawful."

[1]  An order, to be lawful, must relate to a military purpose.
An order may not, without such a valid military purpose, in
terfere with personal rights or private affairs. MCM, Part IV,
paragraph 14c(2)(a)(iii) (1984).  The appellant, in effect,
claims that the safe sex order intruded into the area of his
interpersonal relations without a corresponding showing of valid
military necessity.  In this context the appellant also questions
the constitutional validity of the order.  See MCM, Part IV,
paragraph 14c(2)(a)(iv) (1984).

[2]  While an overreaching by military order into a private area
of one's life may raise an issue having a constitutional
dimension, we note that the nature of the disobedience in this
case does not represent a promising basis for a constitutional
challenge.  The charged act of disobedience was homosexual
sodomy.  This is not a constitutionally protected activity.
Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140
(1986). If one considers the constitutional question in terms of
the reasonableness of the order rather than the nature of the
disobedience, one has to evaluate the vital public health
interests sought to be protected. Obviously, we are viewing a
problem about which the law is likely to develop rapidly in the
months ahead.  At this early juncture one state appellate court
has suggested, albeit in a narrowly drawn factual situation, that
even certain heterosexual marital contacts might constitutionally
be limited to avoid transmission of the HIV virus from one
partner to another. Doe v. Coughlin, 71 N.Y.2d 48, 518 N.E.2d
536, 523 N.Y.S.2d 782 (1987). We shall, for this moment, explore
the more basic question of whether the order was a lawful
exercise of command authority. The related constitutional issue
of whether the order was such as to unreasonably deprive the
recipient of certain basic liberties is an inherently interwoven
concern.  See United States v. Young, 1 M.J. 433, 435 (C.M.A.
1976).

[3]  We recognize that "[t]he regulatory authority of a commander
is not unlimited ... Orders and directives which only
tangentially further a military objective, are excessively broad
in scope, are arbitrary and capricious, or needlessly abridge a
personal right are subject to close scrutiny and may be invalid
and unenforceable." United States v. Green, 22 M.J. 711, 716
(A.C.M.R.1986). See also United States v. Young,  supra.  The
military objective sought by the order to the appellant in this
case was set forth in the first paragraph of his commander's
letter which transmitted that order, as follows:  "Because of the
necessity to safeguard the overall health of members of a
military organization to insure unit readiness and the ability of
the unit to accomplish the mission, certain behavior and unsafe
health procedures must be proscribed for members who are HIV
antibody positive."  The validity of an order premised on unit
health concerns has been recognized against the claim of an
accused that his obedience would be contrary to personal
religious convictions. United States v. Chadwell, 36 C.M.R. 741
(N.B.R.1965) (refusal to obey an order to obtain inoculation
against certain diseases). See generally United States v.
Wheeler, 12 U.S.C.M.A. 387, 30 C.M.R. 387, 389 (1961). Thus, the
order in this case would appear to be valid if it bears a
rational relationship to the legitimate health care concerns of
the command.

The appellant complains that the component parts of the order
(for the purpose of our consideration the three safe sex
components) are broader in scope than the described purpose of
protecting the health and welfare of those within the military
organization. The order is so worded that it does not on its face
restrict the appellant in his contacts merely with military
sexual partners or those who might reasonably be considered part
of the military community. While there is no need for us to reach
the issue of sexual contact with civilians, we note that a
recognized component of fostering the morale, health and welfare
of a military unit is keeping the unit free from disrepute.
United States v. Milldebrandt, 8 U.S.C.M.A. 635, 25 C.M.R. 139,
142 (1958).  Clearly, the military has an interest in attempting
to insure that those of its members infected with the HIV virus
deal in an honest and reasonable manner with otherwise unwary
sexual partners, regardless of their status.  It would be uncon
scionable and potentially disastrous to the general reputation of
the military if commanders were to adopt a hands-off attitude as
to the possible consequences of the acts of infected members in
the larger community beyond the gate.

In this case, of course, we need only address what did occur. The
disobedience consisted of an act with a fellow military member, a
matter about which the appellant's commander had a direct and
abiding concern.  In analyzing the validity of the order we will
consider the three safe sex components separately.

Notice to Sexual Partners

The relevant portion of the written order states: "You will
inform all present and future sexual partners of your infection."
We need not dwell on this aspect of the order at length. The
record is replete with expert testimony concerning the likelihood
of transmission of the virus through direct physical contact with
an infected individual's bodily fluids. Various forms of sexual
activity provide one of the two primary known means of
transmission, the other being intravenous use of contaminated nee
dles. The cited portion of the order, standing alone, does not
purport to curtail the recipient's sexual activity. It merely
establishes a reasonable, common sense requirement for notice to
others with whom the recipient intends to become intimately en
gaged. Absent this threshold requirement, the disease might
spread rampantly among an unwitting base population.  We
conclude, therefore, that the notice portion of the order is
valid and does not unduly infringe upon the appellant's liberty.

Protection of Partner from Contact with Bodily Fluids and
Excretions

The relevant portion of the order states:

"You will avoid transmitting the infection to other persons by
taking affirmative steps during any sexual activity to protect
your sexual partner from coming into contact with your blood,
semen, urine, feces, or saliva."  This portion of the order
unquestionably covers a good deal more than the activity which
was charged as a violation of the order in this case.  The trial
defense counsel noted this in arguing that the appellant was
thereby prohibited from heterosexual sex for the purposes of
procreation, if he had been so inclined, or even from kissing
another on the mouth. Whether the breadth of the order extends
into constitutionally protected areas is not the issue before us.
As we have noted, homosexual sodomy is not such a protected
activity.  Bowers v.  Hardwick, supra. Based on the expert
testimony presented concerning the transmission of the virus, we
do not doubt that the protection portion of the order
contemplates necessary precautionary measures to limit the spread
of the virus incident to intimate bodily contacts.  As we have
also noted, the order served to synthesize and reinforce the
substance of counselling the appellant, and presumably other
patients similarly situated, had previously received at Wilford
Hall.  Obviously, difficult issues involving the balancing of
societal versus personal interests remain to be resolved in this
area. We will deal with the precise interests involved in this
instance.

The parties at trial agreed that the potential transmission agent
in this case was saliva. The primary expert witness, Major
(Doctor) Robert A. Zajac, Director, Human Immunodeficiency Virus
Unit, Wilford Hall Medical Center, testified in the hearing on a
motion to dismiss the disobedience specification and later as a
government sentencing witness.  He acknowledged that there were
no known cases in which saliva had been identified as a
transmission agent for the HIV virus.  This, however, is not
surprising.  The witness explained that it would be virtually
impossible to isolate saliva as the transmission agent from other
primary agents, such as semen, which are passed from one sexual
partner to the other.  The stipulated testimony of another Air
Force doctor who has served as an AIDS consultant, Captain Joseph
Ruckaby, III, reflects that the HIV virus is present in the
saliva of an infected individual, but in smaller quantities than
in blood or semen. Both he and Major Zajac opined that it was
possible but not very likely that one could transmit the virus
through his saliva incident to an act of fellatio.

Major Zajac testified that the probability of transmitting the
virus would be increased in either of two situations. If the
passive partner had an abrasion or other break in the skin of his
penis while the act of  fellatio  was  being  performed, the
chances of transmission would be greatly enhanced. There would
also be an increase in the probability of transmission of the
virus if any blood were present in the infected individual's
saliva.  Major Zajac explained that those infected with the virus
showed a higher than average propensity for developing gum
problems, and thus were more likely than those not affected to
have traces of blood mixed in with their saliva.  Based upon
information available at trial, there was no indication that
Airman T. had been infected with the virus, or that he was likely
to become infected, as a result of his encounter with the
appellant.

We are satisfied from the testimony which is summarized above
that the commander had a rational basis in fact for an order
which extended to saliva as a potential transmission agent.  It
is conceivable as more is learned about the HIV virus that future
orders will be adjusted, either through expansion or contraction,
to reflect current knowledge. Based on the learning and knowledge
generally available when the order was issued, we conclude that
the commander's direction that the appellant take affirmative
steps to protect sexual partners from coming into contact with
his saliva was a lawful exercise of command authority.

Refraining from Acts of Sodomy or Homosexuality

[4]  The remaining safe sex portion of the written order states:
"You will refrain from any acts of sodomy or homosexuality as
proscribed by the Uniform Code of Military Justice, regardless of
whether or not your partner consents to such acts." This portion
of the order did no more than direct that the appellant refrain
from activity that he was already prohibited from engaging in.
He was ultimately charged with the offense of forcible sodomy, an
activity specifically contemplated by the order.  The
disobedience of this portion of the order is fairly embraced
within the specification alleging sodomy with Airman T. United
States v. Baker, 14 M.J. 361 (C.M.A.1983). Accordingly, that part
of the disobedience specification referring to this portion of
the written order is multiplicious for findings with the offense
of sodomy.

We conclude that the appellant's acts of disobedience of the
other two safe sex portions of the commander's order are not
multiplicious for findings.  Of course, we consider it highly
unlikely that one would notify a prospective forcible sodomy
victim that he is infected with the HIV virus and might transmit
it through sexual contact.

It is also unlikely that one would commit an act of nonconsensual
fellatio against another while having the consideration to
provide protection to the victim by fitting him with a condom.
Whether these are reasonable scenarios is not the determining
factor in assessing multiplicity for findings. Neither
disobedience of the notice nor the protection portion of the
commander's order is, in and of itself, fairly embraced within
the appellant's act of forcible sodomy against Airman T.

Based on our conclusion as to multiplicity we modify the
Specification of Charge I by deleting the word, "and to refrain
from any acts of sodomy or homosexuality as prescribed by the
Uniform Code of Military Justice, regardless of whether or not
his partner consents to such acts."  We also delete the comma and
add the word, "and," between the descriptions of the two
remaining portions of the order disobeyed by the appellant.  The
military judge ruled that disobedience of the order and forcible
sodomy were multiplicious for sentencing. Thus, we are not
required to reassess the sentence.  Based on our review of the en
tire record, we are convinced that the approved sentence is
appropriate.

The findings of guilty, as modified, and the sentence are correct
in law and fact and, on the basis of the entire record, are

AFFIRMED.

Chief Judge HODGSON, Senior Judges FORAY and KASTL, Judges HOLTE,
MICHALSKI, BLOMMERS and MURDOCK concur.