U.S. v. Perez, 33 M.J. 1050 (A.C.M.R. 1991)

This United States Army Court of Military Review decision sets aside a lower court's conviction of an HIV-positive staff sergeant of assault consummated by a battery and adultery.

The staff sergeant and his wife, legally separated, entered into a formal separation agreement that stated that each party "could conduct individual business and personal affairs without interfering with each other in any way, just as if [they] were not married." The staff sergeant subsequently had consensual unprotected sex with a civilian woman, Ms. E., who was HIV-negative. After a friend of Ms. E. informed her that the staff sergeant was HIV-positive, the staff sergeant was convicted of assault consummated by a battery and adultery.

On appeal, the court found that the assault charge could not stand because an essential element of the charge – that the appellant had the ability to assault the victim by transmitting HIV – was not met. During trial, the government offered expert testimony by a physician suggesting that it was unlikely that HIV could be transmitted since the man had had a vasectomy. This was clearly erroneous testimony since HIV can be transmitted by men who have had vasectomies. Nonetheless, because this appeal concerned an issue of law and not a review of the facts themselves, the court relied on the doctor's testimony to find that the assault charge could not stand.

In addition, the court held that the adultery charge could not stand because it was not prepared to create a per se rule that sexual intercourse with a person who is not her or his spouse constitutes adultery. Here, the fact that the man alleged to have committed adultery was legally separated from his wife played a role in the court's decision. The court recognized that the separation agreement permitted sexual intercourse with another person without violating the sanctity of the marriage contract. The government failed to prove that the staff sergeant's conduct was prejudicial to the "good order and discipline" of the military, "offended local law or community standards," or could bring "discredit" to the armed forces.

This was an unusual case in that it reversed a trial court's decision, which is rare in military cases involving allegations of HIV transmission. In addition, in its analysis, the court relied on factual testimony (evidence suggesting HIV cannot be transmitted if an individual has a vasectomy) that was completely false.