United States v. Joseph

37 M.J. 392, 1993 CMA LEXIS 98, 1993 WL 345611

• Court: United States Court of Military Appeals
• Decided: September 10, 1993
• Docket: No. 67,605; CMR No. 90 3256
• Status: Published

Opinions

Opinion of the Court

COX, Judge:

A military judge sitting alone as a general court-martial convicted appellant, contrary to his pleas, of aggravated assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm, inter alia, in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928.¹ The granted issue asks whether the Court of Military Review erred by affirming the findings of guilty to such aggravated assault where appellant, who was infected with the Human Immunodeficiency Virus (HIV), had protected sexual intercourse.

I

Approximately 6 months after being informed that he had tested positive for HIV, appellant engaged in ostensibly protected sexual intercourse with Petty Officer W without informing her that he carried the virus. Apparently as a result of the sexual contact, Petty Officer W contracted HIV.

The Court of Military Review set forth the following factual summary (see Art. 66(c), UCMJ, 10 USC § 866(c)):

The facts reveal that sometime around June, 1988, the appellant was told that he had tested positive for the Human Immunodeficiency Virus (HIV); he was sent to Oakland Medical Center for further tests and counseling. Oakland confirmed that the appellant was HIV positive. He was told that the virus was potentially dangerous and that it could be transmitted to another human being by sexual intercourse. As part of the counseling at Oakland he was advised that death or great bodily harm was a probable and eventual consequence of infecting someone with the HIV virus. He was also issued a four-page counseling sheet which he acknowledged. That document contained information which indicated that a condom helped reduce the spread of HIV. It also indicated that sexual intercourse would be safer when nonoxynol-9, a spermatoeide, was used with a condom. However, the information provided in the document stressed that sexual intercourse spreads the virus and the “only absolute way to prevent this is not to have sex.” ... (Emphasis added.) At trial the appellant acknowledged that the counseling sheet contained information “about the same similar [sic] type of counseling that [he] was already getting in the groups,” that is, the group sessions at Oakland.

Thus the appellant knew, prior to his sexual relations with Petty Officer W, that sexual relations with her were unsafe, even using a condom and even if the condom was used with nonoxynol-9. The appellant admits that he had sexual intercourse with Petty Officer W on 22 January 1989 after testing positive for the HIV virus and knowing that he had tested positive for the virus. He did not inform her that he was a carrier of the HIV virus prior to the act of intercourse but did have a condom on at the time of intercourse. At trial Petty Officer W testified that she agreed to have sex with appellant on 22 January[.]

As a result of ... [a] conversation [in which Petty Officer W refused to have unprotected sex with Petty Officer Joseph], appellant went to a nearby store and purchased a condom. He alleges the condom contained nonoxynol-9. Petty Officer W indicates she examined the condom and found it to be dry. During intercourse, she became uncomfortable and asked him to withdraw. This appellant did, and he was fully erect upon withdrawal. Appellant indicates the condom was intact upon withdrawal; Petty Officer W disagrees, indicating the head of appellant’s penis was fully exposed as a result of a break in the condom. The appellant indicates no ejaculation occurred; Petty Officer W’s testimony is ... not clear in this regard. This was the one and only time appellant and Petty Officer W had sexual intercourse.

Dr. Garst, the appellant’s attending physician and counselor, testified that HIV is transmitted through fluids or secretions to include both the vesicle fluid and the ejaculate itself. He testified that his “only conclusion ... [was] that both would be considered equally infectious.” He also noted that “[i]n heterosexual relationships the transmission of HIV virus from an infected man to an uninfected woman is more efficient than the transmission of virus from an infected woman to an uninfected man.” Further Dr. Garst testified that the magnitude of the likelihood of transmitting HIV through a single sexual encounter is small. Whether that is fair to call small when you’re dealing with something of this importance is a judgmental decision.

There are clearly, however, descriptions of women who have become infected with the HIV virus after only one or a handful of sexual encounters. In those descriptions there really isn’t any clear specification as to whether condoms were used or not.

Q. Have there been any studies on the effectiveness of condoms in terms of the transfer of HIV?

A. There are studies in the laboratory that look at the permeability of the material used in condoms. Those studies would lead you to suspect that condoms might be extremely effective.

On the other hand, one must balance that with the total lack of information on whether condoms are effective in real life situations involving human beings and one is reminded of the experience with condoms in preventing pregnancy, and that experience suggests that condoms by themselves are rather inefficient in that regard. Even with recent improvements in the manufacture of condoms, couples relying solely on condoms to prevent pregnancy end up getting pregnant about five to fifteen percent of the time over a year or two period leading one to conclude that they are not likely to be 100-percent effective in preventing the transmission of anything else.

[I]t is absolutely known that the use of condoms does not reduce the risk of transmission to zero.

Q. Doctor, now to a more physiological type of question. In terms of semen and ejaculation, do you know whether or not a full ejaculation is required in order to transfer the virus[?]

A. ... All I can refer to once again is the known risk of pregnancy in situations where the penis is withdrawn before the main part of ejaculation began.

That sort of activity is considered highly risky when the issue was pregnancy. I would only assume that it would continue to be a risk with the transmission of other things.

Q. So it would be fair to say that some fluid is present without an ejaculation?

A. Oh, clearly.

33 MJ 960, 962-64 (1991) (footnote omitted).

II

We must determine whether the evidence, viewed “in the light most favorable to the” Government, is sufficient to support a finding of aggravated assault. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Turner, 25 MJ 324 (CMA 1987).

Article 128(b)(1) provides:

Any person subject to this chapter who ... commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm ... is guilty of aggravated assault and shall be punished as a court-martial may direct.

(Emphasis added.)²

We first consider whether there is sufficient evidence to conclude that appellant’s conduct amounted to an assault. It is black letter law that every battery includes an assault. As Colonel Winthrop put it years ago:

A battery, or assault and battery, — for the two terms are substantially equivalent, every battery including an assault, — is any unlawful violence inflicted upon a person without his or her consent.

Military Law and Precedents 687 (2d ed. 1920 Reprint). See also W. LaFave and A. Scott, Substantive Criminal Law § 7.14(a) at 300 (1986); R. Perkins and R. Boyce, Criminal Law 159-61, 173-77 (3d ed.1982); J. Miller, Handbook of Criminal Law 312-13 (1934); 1 W. Russell, A Treatise On Crimes and Misdemeanors 750 (1845); para. 207a, Manual for Courts-Martial, United States, 1951, at 371; cf Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, at 285.

Thus, one means of proving an assault is to prove a battery (in military parlance, an “assault consummated by a battery.” See para. 54b(4)(a), Part IV, Manual for Courts-Martial, United States, 1984). Proving an assault consummated by a battery was the route taken by the prosecution in the instant case.³

Further, the actus reus of assault consummated by a battery (or “bodily harm”) includes “any offensive touching of another, however slight.” Para. 54c(l)(a), Part IV, 1984 Manual, supra; see, e.g., W. La-Fave and A. Scott, supra at § 7.15 at 301. We can think of no reason why a factfinder cannot rationally find it to be an “offensive touching” when a knowingly HIV-infected person has sexual intercourse with another, without first informing his sex partner of his illness — regardless whether protective measures are utilized.⁴ Given the consequences of Acquired Immune Deficiency Syndrome (AIDS), the label “offensive touching” seems rather mild for such unwarned, intimate contact with an HIV-infected person. We assume most unwitting sex partners, including the victim herein, could readily think of more graphic descriptions for such behavior. We hold that a rational factfinder could find, beyond a reasonable doubt, that appellant’s conduct amounted to an assault consummated by a battery on Petty Officer W.⁵

Next we consider whether the remaining element was adequately established, i.e., whether the assault-by-unwarned-sexual-intercourse was a “means or force likely to produce death or grievous bodily harm.” Specifically, is it possible that ostensibly-protected sexual intercourse can constitute such a means or force? Clearly, intimate sexual contact is one of the two primary means of HIV transmission (the other being intravenous drug use). Use of a condom only separates the victim from HIV-laden seminal/vaginal fluid by a few millimeters of latex. Further, the risks of breakage, spillage, defective workmanship, improper or careless usage, and even permeability under certain circumstances are well documented and were well known to appellant. See United States v. Joseph, 33 MJ at 963 n.2. At best, use of a condom does not translate into “safe sex,” but potentially “safer sex.”

Depending on the circumstances of a particular case, we believe a factfinder could rationally find even ostensibly protected intercourse to be a “means ... likely to produce death or grievous bodily harm.” INDEED, ANY TIME A PERSON WILLFULLY OR DELIBERATELY EXPOSES AN UNSUSPECTING VICTIM TO A DEADLY OR DEBILITATING DISEASE OR INFECTION, SUCH AS HIV, POLIO, HEPATITIS B, OR CERTAIN VENEREAL DISEASES, THE ACTOR MAY BE LIABLE FOR AN AGGRAVATED ASSAULT — OR WORSE. Certainly in the case of HIV, we will not hold, as a matter of law, that every superficial use of a condom provides a complete bar to prosecution.

In addition, we do not construe the word, “likely,” in the phrase, “likely to produce death or grievous bodily harm,” as involving nice calculations of statistical probability.⁶ If we were considering a rifle bullet instead of HIV, the question would be whether the bullet is likely to inflict death or serious bodily harm if it hits the victim, not the statistical probability of the bullet hitting the victim. The statistical probability of hitting the victim need only be “more than merely a fanciful, speculative, or remote possibility.” United States v. Johnson, 30 MJ 53, 57 (CMA), cert. denied, 498 U.S. 919, 111 S.Ct. 294, 112 L.Ed.2d 248 (1990).

Likewise, in .this case, the question is not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body. The probability of infection need only be “more than merely a fanciful, speculative, or remote possibility.” Id.

In the instant case, appellant well knew that condoms did not provide absolute protection and could not be considered “invariably” reliable. See United States v. Joseph, 33 MJ at 965. Further, taking the evidence in the light most favorable to the prosecution, see Jackson v. Virginia and United States v. Turner, both supra, Petty Officer W testified that she had not engaged in sexual intercourse for approximately 1 year before she had sexual relations with appellant, and intercourse was therefore difficult. Also, according to her testimony, the condom appellant used, albeit grudgingly, was dry. These factors served to enhance the possibility of condom breakage. Under the totality of circumstances, we agree that the evidence is sufficient, as a matter of law, for the factfinder to find that unwarned sexual intercourse by an HIV-infected person, even if ostensibly protected by a condom, was an assault with a means likely to cause death or grievous bodily injury.

If this application of legal principle translates into a drastic reduction in the sexual “freedom” of the HIV-infected, so be it. According to ancient legal maxim, one’s liberty to swing one’s arms stops where another’s nose begins.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

Judges CRAWFORD and GIERKE concur.

1 . In accordance with his pleas, appellant was also found guilty of one specification each of disobeying a lawful regulation; of wrongful appropriation of government property; and of wrongful sexual intercourse, in violation of Articles 92, 121, and 134, Uniform Code of Military Justice, 10 USC §§ 892, 921, and 934, respectively. The military judge acquitted appellant of one specification of dereliction of duty charged under Article 92 (GCMO No. 30-90 dated 5 Sep. 90 erroneously reflects this finding) and dismissed a second specification of wrongful appropriation as multiplicious.

Appellant was sentenced to a dishonorable discharge, confinement for 30 months, total forfeitures, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged but suspended confinement in excess of 6 months pursuant to the pretrial agreement. The Court of Military Review affirmed the findings and sentence. 33 MJ 960 (1991).

2 . The President, in paragraph 54b(4)(a), Part IV, Manual for Courts-Martial, United States, 1984, breaks down the elements of assault with a dangerous weapon or other means likely to produce death or grievous bodily harm, as follows:

(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;

(ii) That the accused did so with a certain weapon, means, or force;

(iii) That the attempt, offer, or bodily harm was done with unlawful force or violence; and

(iv) That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm.

3 . This case involved a deliberate, physical touching, i.e., sexual intercourse. This fact alleviates the need to ponder whether an intentional touching satisfies an “attempt-to-do-bodily-harm” theory or an "offer-to-do-bodily-harm” theory. The relevant questions here are whether this touching constituted “bodily harm” and whether it was done “in a manner likely to produce death or grievous bodily harm.” Hence my opinion proceeds directly to those matters. When a case is presented that fairly requires us to decide whether our statute permits assault charges based on bodily harm inflicted through negligence or culpable negligence, I will endeavor to answer those questions. See R. Perkins and R. Boyce, Criminal Law 175-76 (3d ed.1982). In the meantime, I prefer not to obscure today’s holding with collateral, academic discussion.

4 . Contrary to Judge Wiss’ assertion, 37 MJ at 402 n.2, it is precisely the act of intercourse, under the circumstances here, that is sufficient to amount to an assault by offensive touching. Art. 128, UCMJ, 10 USC § 928. The fact that proof of a touching by HIV-laden semen would also constitute an assault does not bar proof of other types of assault.

5 . The instant case was tried by a military judge sitting alone, pursuant to appellant's trial request. Therefore, the judge had no occasion to give instructions on findings, and no special findings were requested by the defense. Thus the record does not disclose the military judge’s actual thought processes in arriving at the conclusion that appellant committed an aggravated assault. We assume that the judge understood the law and correctly applied it. United States v. Harper, 22 MJ 157, 164 (CMA 1986).

We recognize further that “informed consent” can convert what might otherwise be an offensive touching into a non-offensive touching. In addition, we acknowledge that the defense of "assumption of the risk,” in some circumstances, supplies a defense to what might otherwise be an assault. As neither of these two factors was involved in this case, however, we have no occasion to determine how they might apply to these facts.

6 . See also paragraph 54c(4)(a)(ii), Part IV, Manual, supra, which provides:

When the natural and probable consequence of a particular use of any means or force would be death or grievous bodily harm, it may be inferred that the means or force is "likely” to produce that result.

(Emphasis added.)

We have held that the natural and probable consequence of having unprotected sexual contact with someone who tests positive for HIV is death or serious bodily harm. See United States v. Johnson, 30 MJ 53, 57 (CMA), cert. denied, 498 U.S. 919, 111 S.Ct. 294, 112 L.Ed.2d 248 (1990); United States v. Stewart, 29 MJ 92, 93 (CMA 1989); United States v. Womack, 29 MJ 88 (CMA 1989); United States v. Woods, 28 MJ 318, 319 (CMA 1989). Thus deliberately exposing another to seminal fluid containing HIV is clearly a means likely to produce death or grievous bodily harm and, therefore, can be an aggravated assault.