United States v. Bygrave
1997 CAAF LEXIS 61, 46 M.J. 491 (1997)
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Rule of Law:
Under military law, a person cannot legally consent to an act that is likely to produce grievous bodily harm or death. Therefore, a victim's informed consent to unprotected sexual intercourse with an HIV-positive partner is not a valid defense to a charge of aggravated assault under Article 128 of the Uniform Code of Military Justice (UCMJ).
Facts:
- In 1986, the appellant, a service member, tested positive for the Human Immunodeficiency Virus (HIV).
- Appellant was warned by medical personnel of the risk of spreading the virus through sexual intercourse.
- Beginning in January 1990, the appellant entered into a sexual relationship with Boatswain’s Mate Third Class (BM3) C.
- Prior to commencing sexual relations, the appellant informed BM3 C that he was HIV-positive.
- Appellant and BM3 C subsequently engaged in regular, consensual sexual intercourse, using a condom on most, but not all, occasions.
- In July 1991, BM3 C tested positive for HIV.
- Six months later, in January 1992, the appellant and BM3 C were married.
Procedural Posture:
- Appellant was convicted of two specifications of aggravated assault by a general court-martial, a military trial court.
- The convening authority approved the conviction and sentence.
- Appellant appealed to the Navy-Marine Corps Court of Military Review, an intermediate appellate court.
- After an initial remand, the intermediate appellate court (by then named the Court of Criminal Appeals) affirmed the conviction and sentence.
- The United States Court of Appeals for the Armed Forces, the highest military court, granted review to address the issue of whether informed consent is a valid defense.
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Issue:
Does a service member's informed consent to sexual intercourse with an HIV-positive partner constitute a valid defense to a charge of aggravated assault under Article 128 of the Uniform Code of Military Justice?
Opinions:
Majority - Arterton, J.
No. A victim’s informed consent is not a valid defense to a charge of aggravated assault when the act is likely to produce death or grievous bodily harm. The law does not recognize the validity of consent to such acts. Therefore, engaging in unprotected sex with knowledge of one's HIV-positive status constitutes aggravated assault under Article 128, UCMJ, regardless of the partner's consent. The court reasoned that unlike crimes such as rape, lack of consent is not an element of aggravated assault. Because one cannot legally consent to an act likely to cause grievous bodily harm, any purported consent is legally invalid, rendering the act an 'unlawful force or violence.' Furthermore, even if a constitutional right to privacy exists for such sexual acts, it is outweighed by the government's compelling interests in preserving the health of service members, preventing the spread of a deadly disease, and maintaining military readiness.
Analysis:
This decision solidifies the principle in military jurisprudence that consent is not a defense to conduct deemed inherently and gravely dangerous. It affirms the military's power to prosecute the transmission of HIV as a violent crime, effectively treating the virus as a 'means or force likely to produce death or grievous bodily harm.' The ruling highlights the unique context of military law, where the government's compelling interest in maintaining force health and readiness can override individual liberties and privacy rights that might be afforded greater protection in a civilian context. This precedent establishes a strict liability standard for HIV-positive service members, signaling that their conduct will be judged by its potential harm rather than the consensual nature of the interaction.
