United States v. Hurts, 2014 CCA LEXIS 284 (2014)

This United States Army Court of Criminal Appeals decision held that if the likelihood of infection from HIV was not more than a remote possibility, a servicemember could not be convicted of assault with a means likely to produce death or grievous bodily harm. A servicemember was convicted at trial of assault with a means likely to produce death or grievous bodily harm as a result of having consensual, unprotected sex with several other servicemen. Prior to this sexual contact, the servicemember was diagnosed with HIV in 2010. She began to undergo medical treatment with a doctor in July 2010, and as a result was able to achieve an undetectable viral load. At trial, the servicemember’s doctor testified that the risk of transmission with an undetectable viral load, using a latex condom with no breakage, was remote.

Based largely on this expert testimony, the court found for the service- member on the issue of whether her actions constituted assault with a means likely to produce death or grievous bodily harm. It held that the evidence did not establish beyond a reasonable doubt that the probability of infection was more than a remote possibility. Therefore the appellant’s conviction on assault was reversed and reduced to battery.