Just like that, about 25 years of risking an “aggravated assault” or similar charge for not informing a sexual partner that you’re “HIV positive” are effectively over. On February 23, 2015, the highest U.S. military court judged the risk of contracting “HIV” from sex as so low that it is no longer a serious crime not to tell sexual partners. Attorney and ex-Marine reservist Kevin McDermott talks to “How Positive Are You” co-host Elizabeth Ely about the decision in United States v. Gutierrez and how it might affect civilian as well as military cases.
The U.S. armed forces mandate “HIV testing” of all active-duty personnel every six months. Testimony in similar court cases has revealed low standards for this testing — and on more health conditions than “HIV.” This has been devastating to the lives, health, careers, reputations, retirement benefits and families of thousands who serve their country. We urge all, inside and outside the military, to review the limitations of HIV testing.
At the time of his arrest in August 2010, Technical Sergeant David Gutierrez had put in nearly 20 years in the Air Force and looked forward to qualifying for an honorable discharge and full retirement in a couple of months. His work record as an aircraft maintenance manager at McConnell Air Force Base in Kansas was spotless. He kept completely separate from this military career the sexually free “swinger lifestyle” he pursued with the consent and participation of this then-wife, Gina Gutierrez, even after “testing positive” in 2007 and 2010. But when the Air Force found out, it charged him with “aggravated assault,” the military’s charge for having sex without disclosing one’s HIV status. He was, and remains, healthy. Not one person alleged he had infected them with HIV.
The Office of Medical and Scientific Justice (OMSJ) assisted the defense on appeal. Under the direction of licensed California private investigator Clark Baker, OMSJ has a successful record of defending alleged HIV positives. Said McDermott, “Without OMSJ’s efforts and diligence, the results in this case could not have been possible.”
OMSJ educates defense lawyers on problems with HIV testing. Unlike other HIV law organizations, it is willing to challenge a defendant’s HIV status by presenting expert scientific witnesses. In Gutierrez, however, it didn’t get the chance to do that on appeal because the original defense team refused to retain OMSJ, as a rumored “fraudulent” agency pursuing “conspiracy theories,” and presented no evidence on testing at the trial level. Nonetheless, OMSJ influenced the appellate decision based on the low probability of HIV transmission and harm.
Gutierrez will get his sentence reconsidered based on a conviction reduced to “assault consummated by battery” and the two upheld convictions of failing to follow a lawful order to practice “safe sex” and inform partners, and “adultery” affecting the discipline and image of the armed forces. He could even be released on time served for almost five years, says McDermott.
Related Episodes:
Episode 78: Clark Baker on Craig Lamar Davis’ Conviction on Aggravated Assault with a Fake ‘Deadly Weapon’
Episode 71: ‘Sue ‘Em Now’ with Attorney Jonathan Dailey
Episode 65: HIV Criminalization Cases in Canada
Episode 62: Nicole Andrews Faced 60 Years in Jail
Episode 28: Clark Baker: Innocent Until Proven Infected
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[…] Hear from the lead attorney about the significance of this victory: “Just like that, about 25 years of risking an ‘aggravated assault’ or similar charge for not informing a sexual partner that you’re ‘HIV positive’ are effectively over. On February 23, 2015, the highest U.S. military court judged the risk of contracting ‘HIV’ from sex as so low that it is no longer a serious crime not to tell sexual partners”. […]
[…] in the media. The ruling came in the case of Air Force Technical Sergeant David Gutierrez, whose attorney we interviewed. (Co-host David Crowe discusses the laws in Canada […]