U.S. v. Reister, 40 M.J. 666 (N-M. C.M.R. 1994) aff'd, 44 M.J. 409 (C.A.A.F. 1996)

This U.S. Navy-Marine Corps Court of Military decision affirmed the appellant's convictions of conspiracy to commit adultery, "consensual sodomy," "assault with means likely to produce grievous bodily harm" (based on his gential herpes diagnosis), adultery, and "fraternization with a hospitalman apprentice." The court also upheld his sentence of dismissal, confinement for two years, and forfeiture of all pay and allowances. After being diagnosed with genital herpes and advised by a medical worker not to have unprotected sex within 14 to 21 days after an outbreak of the virus, Reister, had unprotected sex with a female hospitalman apprentice. The encounter occurred 18 days after Reister's medical record showed that he had a herpes outbreak.

Reister appealed his convictions, arguing, among other objections, that the lower court erred in ruling that the complainant, as "house-sitter," had sufficient authority to allow a search of the Reister's off-base residence; that the unprotected sex was insufficient evidence to support a conviction of aggravated assault; and that the testimony of the Reister's other sexual partners and the complainant's mother crying outside the courtroom impermissibly prejudiced the proceedings against him.

The court rejected all of Reister's arguments, citing the appellant giving the complainant a key to his residence and use of his master bedroom as proof that he had granted her sufficient authority; as such, the complainant "enjoyed a sufficient relationship to the premises and exercised sufficient control thereof to give a valid consent to a search . . . ." The court also affirmed the finding that the risk of transmission of genital herpes, because of the virus's incurability and potential complications (including those implicating childbirth), constituted grievous bodily harm. Finally, the court dismissed Reister's allegation of inflammatory testimony on the ground that he failed to raise an objection to the testimony during the trial and actually used the testimony to portray the witnesses and complainant as willing participants in sexual activity rather than as victims.