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Engaging in sexual activity without disclosing to partners HIV positive status is determined NOT to be aggravated assault.

Not long ago I posted a blog regarding two common appellate arguments, legal insufficiency and factual insufficiency.  Legal insufficiency means that a reasonable fact finder (court-martial panel or military judge) could not have found that the proof presented met the essential elements of the offense beyond a reasonable doubt.  On Monday, February 23, 2015, in U.S. v. Guiterrez, the Court of Appeals for the Armed Forces (CAAF) found that an appellant’s conviction for aggravated assault at his court-martial, based on his failure to disclose the fact that he was HIV positive to his sexual partners, was not legally sufficient.  CAAF made this determination due to testimony given at the court-martial by an expert witness who stated that there was no more than a 1-in-500 chance that appellant could have actually infected his unknowing partners.  CAAF decided that the element of “likely to produce death or grievous bodily harm” required for aggravated assault simply was not present under the circumstances.  CAAF reasoned that “the question in this case is not whether HIV, if contracted, is likely to inflict grievous bodily harm,” but rather that the question “is whether exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous bodily harm.”  CAAF determined that based on the expert witness’ testimony at the court-martial, the answer to that question was no.  Therefore, CAAF determined that the elements of aggravated assault were simply not present here.  This is significant because this specific offense has been consistently charged as aggravated assault and has resulted in convictions for aggravated assault.  In fact, by making this decision, CAAF overturned some of their own prior cases.  In other words, CAAF set a new precedent regarding this specific offense.  In light of this decision, this type of offense will most likely be charged in the future as assault consummated by a battery instead of aggravated assault.  If you or your loved one was convicted of aggravated assault under these circumstances, or you believe that the court-martial conviction you or a loved one received was legally insufficient, as was found in this case, you may have a valid appeal.  I have a vast amount experience in court-martials and court-martial appeals.  Call me for a free consultation and we can discuss the specific circumstances of the case.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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