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The highest court for the U.S. armed forces has
agreed to hear the appeal of a Kansas airman convicted of assault for exposing
multiple sex partners to HIV at swinger parties in Wichita, his attorney said
Friday.
David
Gutierrez was a sergeant serving at McConnell Air Force base in Kansas when he
was sentenced in 2011 to eight years in prison and stripped of his rank in an
aggravated assault case. Prosecutors told the trial judge that a stiff sentence
would send a message that the military values the integrity of its service
members, saying Gutierrez played Russian roulette with his sexual partners'
lives.
The defense on appeal has won a rare opportunity
to present before the U.S. Court of Appeals for the Armed Forces an argument
that his attorney says could set a far-reaching precedent across the military.
"It will set the table for the entire
military services as to what kind of evidence is necessary to find that someone
can cause grievous bodily injury after testing positive for HIV," said
Kevin McDermott, one of his defense attorneys.
In addition to the HIV issue, the military
appeals court agreed Tuesday to decide whether the evidence was sufficient to
find Gutierrez committed adultery. The defense contends Gutierrez can't be
guilty of adultery because his wife participated with her husband in the
"swinger's lifestyle."
The appeals court, essentially the military
equivalent of the U.S. Supreme Court, takes fewer than 5 percent of petitions
submitted to it, McDermott said.
A military judge in Wichita found Gutierrez
guilty in January 2011 on seven of eight counts of aggravated assault and of
violating his commander's order to notify partners about his HIV status and use
condoms. The judge also convicted Gutierrez of indecent acts for having sex in
front of others and of eight counts of adultery.
Prosecutors did not immediately respond to an
email Friday seeking comment.
The Air Force Court of Criminal Appeals affirmed
the conviction in March 2013, and the defense appealed to the U.S. Court of
Appeals for the Armed Forces.
In its petition, the defense argued that the
evidence was not sufficient to prove Gutierrez was HIV positive. The test used
has since been recalled by the Food and Drug Administration because it was
susceptible to false reactions.
His attorneys also said that even if Gutierrez
had HIV, his medical records showed his viral load was so low during that time
that he had a "zero chance" of infecting anyone through oral sex and
a 1 in 10,000 to 1 in 100,000 chance of infecting a partner through unprotected
intercourse.
"If the court agrees with us and determines
David was not infected to the point that he could have caused grievous bodily
injury to others, this would gut substantially 90 percent of the case against
David," McDermott said.
The case has not yet been set for oral arguments
and no decision is expected until the summer of 2014.
