NMCCA issued an opinion in the case of US v Lewis this week. Sgt Lewis was convicted of three specifications of failure to obey a lawful order, one specification of sexual assault by causing bodily harm, one specification of indecent viewing, and one specification of assault consummated by a battery. On appeal, Sgt Lewis argued that his conviction for assault consummated by a battery was legally and factually insufficient.
Sgt Lewis worked with “Cpl Harris” in 2015 and 2016. In November 2015, Sgt Lewis walked into Cpl Harris’ barracks room while Cpl Harris was showering. Cpl Harris claimed that Sgt Lewis tried to open the curtain and asked to join Cpl Harris in the shower. Cpl Harris asked Sgt Lewis to leave, and he did.
In March 2016, Sgt Lewis was diagnosed as HIV-positive. Due to effective treatments, by May 2016 Sgt Lewis’s tests revealed an undetectable viral load. As an HIV-positive servicemember, Sgt Lewis was ordered to notify any prospective sexual partners of his HIV status and to use condoms for all sexual activities.
In May/June 2016, Cpl Harris and Sgt Lewis were at a party together where they were drinking alcohol. Cpl Harris fell asleep and claimed that he awoke to find Sgt Lewis performing oral sex on him. Cpl Harris yelled at him to stop, Sgt Lewis did, and Cpl Harris left. In August 2016, NCIS opened an investigation into Cpl Harris’ allegations.
Legal and Factual Sufficiency
On appeal, Sgt Lewis argued that the offense of assault consummated by a battery was legally and factually insufficient. The offense requires that Sgt Lewis did bodily harm to Cpl Harris. The bodily harm alleged in the specification was having sexual contact with Cpl Harris without disclosing his HIV status. Sgt Lewis argued that his failure to disclose his HIV status could not support a finding of bodily harm because his viral load is undetectable. The latest science suggests that people with undetectable viral loads do not transmit HIV through sexual contact.
NMCCA looked to two CAAF opinions in evaluating Appellant’s arguments. In United States v. Gutierrez, CAAF reversed an HIV-positive appellant’s conviction for aggravated assault. There, an expert testified that the odds of transmitting HIV were no greater than 1-in-500. CAAF did affirm a guilty finding for assault consummated by a battery based upon the failure to disclose the HIV status. CAAF cited to a Canadian Supreme Court case, R. v. Cuerrier, for the proposition that “[w]ithout disclosure of HIV status there cannot be true consent.”
CAAF subsequently applied the reasoning behind Gutierrez to a conviction for sexual assault in United States v Forbes. CAAF again cited to Cuerrier, in determining that a failure to disclose HIV status constitutes an offensive touching.
NMCCA determined that Sgt Lewis’s argument that his case fell outside of Gutierrez and Forbes because of his undetectable viral load was not enough for the court to deviate from CAAF’s precedent.
HIV and Undetectable Viral Loads
As the science related to the understanding and treatment of HIV advances, the legal landscape will have to follow suit. CAAF acknowledged this fact in Gutierrez and will have another opportunity to do so if they review this case.
In Gutierrez, CAAF referred to the disclosure requirement as providing meaningful informed consent. The Forbes opinion does not address the requirements for meaningful informed consent, appearing to create an absolute disclosure requirement.
Interestingly, the Canadian Supreme Court has reevaluated its holding from Cuerrier in a case where the accused had an undetectable viral load. In R. v. Mabior, the Canadian Supreme Court held that a person is only required to disclose HIV status where there is a realistic possibility of transmission of HIV.
NMCCA’s opinion in Lewis cites Cuerrier but not Mabior. Servicemembers with HIV are better able to stay on active duty these days because of effective treatments that lead to undetectable viral loads. CAAF will certainly have to address this issue and decide what disclosures are required to create meaningful informed consent.
If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.