NMCCA issued an authored opinion in the case of US v Lewis on 17 August. Appellant 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, Appellant argued that his convictions for sexual assault, indecent viewing, and assault consummated by a battery were legally and factually insufficient.
Appellant was a Sergeant who worked with “Cpl Harris” in 2015 and 2016. In November 2015, Appellant walked into Cpl Harris’ barracks room while Cpl Harris was showering. Cpl Harris alleged that Appellant tried to open the curtain and asked to join Cpl Harris in the shower. Cpl Harris asked Appellant to leave, and Appellant did so.
In March 2016, Appellant was diagnosed as HIV-positive. Due to effective treatments, by May 2016 Appellant’s tests revealed an undetectable viral load. As an HIV-positive servicemember, Appellant was ordered to notify any prospective sexual partners of his HIV status and to use condoms for all sexual activities.
In late-May or early June 2016, Cpl Harris and Appellant were at a party together where they were drinking alcohol. Cpl Harris fell asleep and alleged that he awoke to find his jeans down and Appellant performing oral sex on him. Cpl Harris yelled at him to stop, Appellant did so, and Cpl Harris left. In August 2016, NCIS opened an investigation into Cpl Harris’ allegations.
Legal and Factual Sufficiency
Appellant argued that the offense of assault consummated by a battery was legally and factually insufficient. The offense requires that Appellant did bodily harm to Cpl Harris. The bodily harm alleged in the specification was touching Cpl Harris’ penis with his mouth without disclosing his HIV status. Appellant argued that his failure to disclose his HIV status cannot support a finding of bodily harm when his viral load is undetectable. The latest science suggests that those with undetectable viral loads do not transmit HIV through sexual contact.
NMCCA looked to two CAAF opinions in evaluating Appellant’s allegation of error. In United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015), CAAF reversed an HIV-positive appellant’s conviction for aggravated assault where the expert testified at trial that the odds of transmitting HIV even through unprotected vaginal sex were no greater than 1-in-500. Id. at 66-67. CAAF did affirm a guilty finding for the lesser included offense of 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,  2 S.C.R. 371, 372 (Can.) for the proposition that “[w]ithout disclosure of HIV status there cannot be true consent.” Id.
CAAF subsequently applied the reasoning behind Gutierrez to a conviction for sexual assault in United States v Forbes, 78 M.J. 279 (C.A.A.F. 2019). CAAF again cited to Cuerrier, in determining that a failure to disclose HIV status constitutes an offensive touching.
NMCCA determined that Appellant’s argument that his case fell outside of Gutierrez and Forbes due to his undetectable viral load was not enough for the court to deviate from CAAF’s precedent.
NMCCA also affirmed Appellant’s conviction for sexual assault by bodily harm in finding that the members could have determined that Cpl Harris was asleep and did not consent or that the bodily harm could have resulted from Appellant’s failure to disclose his HIV status.
Finally, NMCCA affirmed the conviction for indecent viewing.
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 its opinion in Gutierrez and will have another opportunity to do so when Appellant’s counsel petition for review of this case.
In Gutierrez, CAAF referred to the disclosure requirement as providing meaningful informed consent. Gutierrez, 74 M.J. at 68. The Forbes opinion does not address the requirements for meaningful informed consent, appearing to create an absolute disclosure requirement. Forbes, 78 M.J. at 281.
Interestingly, the Canadian Supreme Court has already had the opportunity to reevaluate its holding from Cuerrier in a case such as Appellant’s, where the accused had an undetectable viral load. In R. v. Mabior,  2 S.C.R. 584 (Can.), the Canadian Supreme Court held that the requirement to disclose HIV status only exists where there is a realistic possibility of transmission of HIV. Id. at 585.
NMCCA’s opinion in Lewis cites Cuerrier without addressing the Canadian Supreme Court’s change from an absolute disclosure requirement to what could be described as a meaningful disclosure requirement. As more servicemembers with HIV are able to stay on active duty and as effective treatments allow more of them to have undetectable viral loads, CAAF will certainly have to address this issue and decide what disclosures are required to create meaningful informed consent.