U.S. v. Upham, 66 M.J. 83 (C.A.A.F. 2008), aff’g 64 M.J. 547 (C.G.Ct.Crim.App. 2006)

This opinion involves an appeal from an aggravated assault conviction brought against an officer in the Coast Guard who allegedly had unprotected vaginal intercourse with a female officer without alerting her to the fact that he is HIV positive. It is the first reported decision that considers evidence of the actual risk of HIV transmission to a female partner from unprotected vaginal intercourse. The appeals court affirmed reversal of the conviction for aggravated assault on the basis that Upham's actions were not likely to produce death or grievous bodily harm, but did find that the evidence supported conviction on the lesser charge of assault consummated by a battery.

Upham was charged with two offenses: aggravated assault, in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928 (2000), and conduct unbecoming an officer and a gentleman, in violation of Article 133, UCMJ, 10 U.S.C. § 933 (2000). At a general court-martial, Upham entered a plea of guilty to the conduct unbecoming an officer and a gentleman charge and contested the aggravated assault charge. He was convicted of both charges; his sentence included dismissal, confinement for nine months, and forfeiture of all pay and allowances. On appeal, the term of confinement was reduced to four months and the remainder of the sentence left in place for his conviction on the lesser charge.

Upham maintained that he was not guilty of aggravated assault because he had not engaged in action likely to produce death or grievous bodily harm. He testified that while the risk of transmission was not zero, his viral load was undetectable and he had not exposed his partner to a fatal disease.