U.S. v. Joseph, 37 M.J. 392 (C.M.A. 1993)

This is a United States Court of Military Appeals decision holding that a military officer's failure to inform his sexual partner of his HIV-positive status supports an aggravated assault conviction, even when a condom was used.

In this case, a military officer had consensual sex with a female officer and transmitted HIV after a condom ruptured during sex. Because the man did not disclose his HIV status prior to engaging in sexual intercourse, the court found that he was guilty of assault under 10 USC § 928.

The court relies on a flawed analogy comparing HIV to a loaded gun, stating "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." Thus, the court reasons that because of the likelihood of HIV causing death or serious bodily harm if it invades the victim's body, any potential exposure constitutes assault.

Specifically, the court states that having sexual intercourse with another without prior disclosure of HIV status meets the "offensive touching" element of the assault charge. The court finds that the assault-by-unwarned-sexual intercourse was a "means or force likely to produce death or grievous bodily harm."

This case was decided in 1993 when HIV almost invariably led to AIDS and death. It is less clear whether the court would have reached the same decision today given that an HIV-positive person can enjoy a life expectancy that nearly approximates that of an HIV-negative person.