U.S. v. Forbes, 2018 CCA LEXIS 194 (N-M Ct. Crim. App. April 24, 2018)

The U.S. Navy-Marine Corps Court of Criminal Appeals rejected the defendant’s challenge to his guilty plea and sentence of eight years for sexual assault, making a false official statement, and the Virginia law of  “infected sexual battery” after he had condomless sex with several partners without disclosing his HIV status. Following U.S. v. Gutierrez as governing precedent, the court held that the defendant had still committed a crime because it was not possible for his partners to provide meaningful informed consent without his disclosure of his status. The case reinforces the unfortunate analysis in Gutierrez and other subsequent military cases which focuses on disclosure as necessary for consensual sex.

In U.S. v. Gutierrez (2015), the United States Court of Appeals for the Armed Forces reversed the aggravated assault conviction of a service member because it found that HIV transmission is not the likely consequence of condomless vaginal sex. Gutierrez, however, was still convicted of the lesser-included offense of “assault consummated by battery.”