U.S. v. Barrows, 48 M.J. 783 (A. Ct. Army Crim. App. 1998)

This U.S. Army Court of Criminal Appeals decision affirmed a soldier's convictions for disobeying a lawful order issued by a superior officer, failing to obey another lawful order, and two counts of "aggravated assault with a dangerous means" as a result of his sexual activity while HIV positive.

Following his HIV diagnosis, the defendant received counseling, and his then-commanding officer issued a "safe-sex" order, ordering him to inform potential sexual partners of his condition and use condoms if engaging in sexual intercourse. Defendant felt in general good health and expressed doubt to his medical officer that he was indeed HIV positive, which the medical officer confirmed through retesting and advised the defendant that his general health was consistent with his early stage of infection.

During the two years following the safe-sex order, the defendant changed company commander three times and had consensual sexual intercourse with three women following the transfer of the original commanding officer. With one woman, he wore a condom but did not inform her of his HIV status. With the second, he did not inform her of his HIV status and did not use a condom. With the third, he did not inform her of his HIV status and although he used a condom at the beginning of their relationship, he stopped doing so thereafter. He was found not guilty of aggravated assault against the first (with whom he used a condom), but was found guilty of aggravated assaults against the second and the third women.

The defendant claimed that he incorrectly believed the safe-sex order ceased to apply when its issuing commanding officer had left the base. The court acknowledged the validity of this mistake of fact defense. However, it further stated that the military has a legitimate interest in limiting the sexual contact of HIV positive soldiers in order to prevent the spread of HIV, and that the continued necessity of these preventive medicine measures meant that the departure of the issuing commanding officer had no effect on the order's continued validity. Thus, rather than questioning the order's continued validity, the defendant violated it at his own peril, justifying the charges of disobeying lawful orders. The court also rejected the defense that the defendant believed he had been mistakenly diagnosed with HIV as an unreasonable belief given that he was retested subsequent to his initial diagnosis.