U.S. v. Walker, ACM 29757, 1993 WL 245166 (A.C.F.M.R. 1993)

In this U.S. Air Force Court of Military Review decision, the court upheld a security policeman's convictions of attempted aggravated assault by engaging in unprotected sexual intercourse with an unsuspecting female airman and violating a "safe sex" order issued after he tested positive for HIV.

Following his HIV diagnosis, Walker, the appellant, received a safe sex order that required him to inform potential sexual partners of his status and to use protection during sexual contact. Two years later, he had intercourse with a female airman. Because he failed to wear a condom or tell the woman that he had HIV, he was charged with, among other offenses, disobeying his commander's order and aggravated assault. Walker pleaded guilty to the violation of the safe sex order. However, he contested the aggravated assault charge because the prosecution's case rested on the notion that he exposed his partner to HIV through his semen, and there was no evidence that his ejaculate had been transmitted to the woman. Taking the lack of evidence into consideration, the trial judge convicted him of the lesser offense of attempted aggravated assault, which is defined as "'. . . an intent to commit [aggravated assault] and the commission of an act not amounting to completion of the offense but constituting more than preparation for its perpetration.'"

In his appeal, Walker challenged this conviction due to insufficient evidence. The U.S. Air Force Court of Military Review affirmed his conviction and sentence of dishonorable discharge, three years confinement, forfeiture of $200 pay per month for three years, and reduction to E-1. This case is part of a long trend in the military of convicting HIV positive people of violent, intentional crimes even in the absence of proof of actual harm.