US: Military court sends Naval officer to prison for unprotected sex with disclosure

A US military court has sentenced a 37-year-old HIV-positive Naval officer to three months' in military prison after he pleaded guilty to having unprotected sex with disclosure with two women. The man, an aviation electronics technician who had been in the Navy for 18 years, was also given a bad-conduct discharge and demoted to seaman recruit.

No, you aren't misreading this. A man has lost his job, his reputation and his liberty for the next three months, after being court martialled for having sex with two women (one of whom is his ex-wife) who consented to unprotected sex.

Clearly, this man's lawyer, Greg McCormack (a civilian lawyer), and the military judge, Cmdr. Tierney Carlos, have not done their homework. It took me less than an hour to discover previous US Court of Appeals for the Armed Forces (CAAF) judgements that call into question the aggravated assault charge that Petty Officer 1st Class Steven R. Franklin pleaded guilty to.

First, the facts of the case, as reported in The Virginian-Pilot.

The charges stemmed from Franklin's ignoring written and oral orders not to have unprotected sex. He also was compelled to advise sexual partners that he was HIV-positive and that condoms are not guaranteed to stop the spread of the virus. Franklin, who was diagnosed with HIV in 2003, was reminded of the restrictions every time he visited the HIV clinic at Portsmouth Naval Medical Center, he told the judge. He also signed an order from his commanding officer at the Aviation Intermediate Maintenance Depot in Norfolk in November 2007 pledging to meet those conditions.

Within a few weeks of signing that document, though, Franklin began a new sexual relationship. The couple used condoms for a few weeks but later stopped at Franklin's request. After the woman learned of his diagnosis, she continued having unprotected sex with him for a few more weeks, according to testimony. The second woman - now his ex-wife - testified at an earlier hearing that she also had unprotected sex with Franklin after learning he was HIV-positive. Neither woman has contracted HIV, according to testimony.

The problem is Cmdr. Carlos' interpretation of Article 128 of the Uniform Code of Military Justice (assault with a dangerous weapon) as it applies to criminal sexual HIV exposure.

Regardless of the women's actions, the law does not allow people to consent to a sexual act that could result in "grievous bodily harm," Carlos explained. Unprotected consensual sex became aggravated assault because of the likelihood it would cause serious harm or death.

That used to be the case, but not any more.

Now, in military law, you cannot consent to aggravated assault. This is due to a 1997 CAAF decision (US v. Bygrave) which held that, in this case, because both women Bygrave had sex with were on active duty there was a compelling Government interest in protecting the health of military personnel negating their informed consent to the risk of HIV transmission.

But a 2006 ruling, upheld in 2008, found that unprotected sex (without disclosure) might not necessarily be aggravated assault if the HIV-positive individual has a low viral load.

Until 2006, the military court's position on criminal sexual HIV exposure can be summarised in this quote from US vs. Upham (US Coast Guard Court of Criminal Appeals, 2006)

A person who wilfully and deliberately exposes a person to seminal fluid containing HIV without informing that person of his HIV positive status and without using a condom has acted in a manner likely to produce death or grievous bodily harm.

A specific intent to infect a victim with the HIV virus [sic] or to expose the victim to it is not required for this offense. The accused need only have intended to engage in unprotected sexual intercourse to have committed this offense.

The fact that the alleged victim may have consented to sexual intercourse with the accused is not a defencse to aggravated assault. One cannot consent to an act that is likely to produce death or grievous bodily harm.

In 2008, US v. Upham reached the US Court of Appeals for the Armed Forces (CAAF) which upheld the earlier appeal.

The case of Lieutenant Upham involved him having unprotected sex with a fellow (female) officer (Capt B) without disclosing his HIV status. He testified in his original court martial that since his viral load was low (but detectable)

"there was not a risk of zero transmission," but testified that he did not believe that he had exposed Cpt B to a fatal disease: "I do not believe that she was going to be infected."
(US v. Upham, CAAF 2008, p5)

The medical witness testified

that given Appelant's low viral load, "I cannot say he's not infectious" (R. at 441-42), but that [Capt B]'s risk of contracting HIV was very low (R. at 465)
(US v Upham, US Coast Guard Court of Criminal Appeals 2006, p 3)

However, when the judge gave intructions for the jury he said

A person who wilfully and deliberately exposes a person to seminal fluid containing HIV without informing that person of his HIV positive status and without using a condom has acted in a manner likely to produce death or grievous bodily harm.

The defense objected to this on the grounds that

"these instructions say that [Appellant] is per se guilty of aggravated assault." The military judge overruled the objection, and said that instruction "accurately state[s] the that exist[s] today." (US v Upham, CAAF 2008, p6)

In the 2006 appeal, the court concluded

that the error [of giving this instruction] was prejudicial as to the aggravated assault charge: "Given the medical evidence, it is not inconceivable that the court could have had a reasonable doubt on whether the means employed was likely to produce death or grievous bodily harm." (US v Upham, CAAF 2008, p6)

The legal arguments are long and complex (maybe even too long and complex for me, a non-lawyer), but what I think they are essentially saying is that the risk of HIV transmission with a low (but not even undetectable) viral load might not have been "likely to produce death or grievous bodily harm" and the jury should have been allowed to decide this rather been told that HIV exposure without disclosure (regardless of other facts) is always aggravated assault.

In the end, Lieutenant Upham was found guilty of the lesser charge of "assault consummated by a battery" and had his prison sentence reduced from eight months to four months. In March 2008, the CAAF upheld this appeal. (However, a similar case was rejected by the C.A.A.F. in May 2008, reported on my blog here, and also discussed on another blog concerned with military law here.)

This is all revelant to the current case because The Virginian-Pilot reports

Franklin...told the judge his HIV is well-controlled and the virus is no longer detectable in certain medical tests.

So, his lawyer should have asked, and/or the judge should known, to consider having the charge reduced from aggravated assault to assault consummated by a battery.

And if there is no aggravated assault, than you can consent, particularly since neither of the women that Franklin had sex with were military personnel, negating the compelling Government interest.

Since Franklin pleaded guilty, it's not clear that he is allowed to appeal. Let's hope he, or his lawyer, reads this blog, and finds a way to re-open this egregious example of Government intrusion into the private lives of individuals.

US: Military court discusses viral load and HIV exposure

The issue of whether someone with an undetectable viral load can be guilty of HIV exposure has been discussed in a US court for the first time - the US Court of Appeals for the Armed Forces.

In this extremely interesting article from Gay City News (below) the five-member panel spent some time discussing whether an HIV-positive soldier who had previous pleaded guilty to HIV exposure (actually aggravated assault) could set aside his guilty plea following testimony from a military doctor that he was "highly unlikely" to be able to transmit HIV given his extremely low viral load.

At a sentencing hearing after his guilty plea, Captain Mark Wallace, a military doctor, testified that it was highly unlikely that Dacus could have infected either woman because of his low viral load. Judge Charles Erdmann, writing for the court, noted Wallace's testimony that "it was 'unquestionably' possible that Dacus could transmit the virus but that the likelihood was 'extremely low' due to his low viral load." Wallace acknowledged that there were documented cases of low viral load individuals who had sexually transmitted the virus, but emphasized that this was "very, very unlikely."

When pushed to quantify his testimony, Wallace said the probability that Dacus could transmit HIV through unprotected sex with a woman was about 1 in 10,000, and that when he used a condom it was 1 in 50,000.

Although the majority did not agree, and did not allow his guilty plea to be set aside, two members of the panel found this expert testimony valid enough to question HIV exposure laws given evolving scientific knowledge of HIV transmission.

HIV Liability At Issue
By: ARTHUR S. LEONARD

A military appeals court ruling on aggravated assault charges against an HIV-positive male soldier who had sex with two women, one without a condom, without disclosing his serostatus provoked an interesting debate about what standard to apply given developing knowledge about transmission of the virus.

A five-judge panel of the US Court of Appeals for the Armed Forces was unanimous in its May 6 ruling rejecting the soldier's effort to set aside his guilty plea, but two of the judges joined in a concurring opinion suggesting some reconsideration of the issue is in order.

Army Staff Sergeant Brandon M. Dacus, a married man, learned that he was HIV-positive in 1996, and received the usual counseling about his responsibility to use a condom and also inform his partners of his status. Medical testimony in the case indicates that he is one of the rare individuals whose immune system suppresses the virus to an undetectable level without any medication. As a result, he remains asymptomatic and is unlikely to ever develop AIDS.

Military prosecutors charged him with two counts of attempted murder, arising from his adulterous sexual encounters with two women. He used a condom with the first woman, and claimed he barely penetrated her. With the second, however, he did not use a condom, and had an affair that included at least 11 occasions of sexual intercourse.

Dacus did not deny the factual allegations, and in the face of the drastic penalties for attempted murder, agreed to plead guilty to lesser charges of aggravated assault and adultery, both violations of the Uniform Code of Military Justice (UCMJ).

At a sentencing hearing after his guilty plea, Captain Mark Wallace, a military doctor, testified that it was highly unlikely that Dacus could have infected either woman because of his low viral load. Judge Charles Erdmann, writing for the court, noted Wallace's testimony that "it was 'unquestionably' possible that Dacus could transmit the virus but that the likelihood was 'extremely low' due to his low viral load." Wallace acknowledged that there were documented cases of low viral load individuals who had sexually transmitted the virus, but emphasized that this was "very, very unlikely."

When pushed to quantify his testimony, Wallace said the probability that Dacus could transmit HIV through unprotected sex with a woman was about 1 in 10,000, and that when he used a condom it was 1 in 50,000.

In his appeal, Dacus argued that his guilty plea was inconsistent with Wallace's evidence introduced at the sentencing hearing. Under military law, conviction on aggravated assault requires that it be established that "the natural and probable cause of exposing" his sexual partner "to the HIV virus is death or grievous bodily harm," or, put another way, that his conduct was "likely to produce death or grievous bodily harm."

Applying this standard in prior HIV cases, military courts had taken into account both the probability that the virus could be transmitted and the harm that would be caused if it was transmitted. Erdmann first rejected Dacus' argument that even if he had infected his partners, they would not have been seriously harmed since he enjoys a very low viral load. That claim was not supported by medical evidence, since Wallace testified Dacus' low viral load was attributable to the strength of his immune system, not to a weak strain of HIV in his system.

The issue of Dacus being unlikely to transmit the virus to a partner was a more complicated matter. In the past, military courts found that the statutory standard was met if the risk of HIV infection is "more than merely a fanciful, speculative, or remote possibility." Erdmann wrote that "although the risk of transmitting the virus was low and therefore arguably 'remote,' the risk was certainly more than fanciful or speculative."

This was enough to satisfy the court that Dacus' guilty plea should not be set aside, but two members of the court, Judges Margaret A. Ryan and James E. Baker, suggested that the issue of risk should be revisited in "an appropriate case."

Ryan wrote that the standard being applied, though in line with other military rulings, "gives me pause," and that a 1 in 50,000 chance seems at odds with the intent of the military code. She also noted the UCMJ does not state that "because the magnitude of the harm from AIDS is great, the risk of harm does not matter." The standard in the statute is whether the conduct is "likely to produce death or grievous bodily harm," which seems, according to Ryan, a higher standard than the risk being "so low as to approach being no 'more than merely a fanciful, speculative, or remote possibility.'"

If the case had involved an appeal of a conviction at trial rather than a guilty plea, Ryan and Baker would have been inclined to reconsider it.

Ryan and Baker's concerns deserve wider discussion in the civilian sphere as well, since many states prosecute HIV-positive individuals who have sex without disclosing their serostatus to partners. The severity of punishment is supposed to reflect the risk facing the uninfected party, yet the occasional appellate decisions that have emerged suggest that courts have been slow to adapt to the unfolding evidence about medical successes in reducing viral loads to undetectable levels and, consequently, lowering the risk of transmission.

US: HIV-positive Navy chaplain pleads guilty to HIV exposure and other charges (updated)

HIV+ navy priest gets two years for sex crimes

7th December 2007 17:10
Antonio Fabrizio, Pink News

A Catholic Navy chaplain was sentenced to two years in jail on Thursday for forcible sodomy and failing to tell his sex partner that he was HIV positive.

John Thomas Matthew Lee, a priest since 1993 and a military chaplain since 1996, decided to plead guilty before a military court at Marine Corps base Quantico in Virginia.

The plea agreement, which included informing the authorities about every sex partner he ever had, meant that ten of the initial twelve-year sentence was suspended.

Lee admitted all of the 11 charges, including that he had had sex with a military officer without telling him he had AIDS, forced himself on a midshipman, and coerced a marine he was counselling to take nude pictures.

During the hearing, Lee apologised for his crimes and said he was remorseful both as a Navy officer and as a priest.

"I have brought such dishonour, I would like to apologise for all the harm I have done," he said, according to the Baltimore Sun.

Victims' groups criticised the sentence, saying it was too light.
Prosecutors had asked a fifteen-year sentence for the Lee.

The priest, without a plea agreement, had risked a life sentence if found guilty of forcible sodomy under US military law.

David Clohessy, director of the Survivors Network of those Abused by Priests, a national organisation of victims of sexual abuse by clergy, said he believed things were worse in the military than in other dioceses.

"For a sex offender priest, the military is very attractive because of the transience of military families and the even greater authority and trust that comes with having two titles, both a priest and an officer," he told Army Times.

The archdiocese where Lee was ordained priest was informed last June about his alleged sexual misconduct and prevented him from performing the Mass.

The Army Times reported that at least 25 priests who have served as military chaplains in the last 30 years have faced allegations of sexual misconduct.


Plea Deal Expected In Military Sex Case
Chaplain Accused Of Abusing Power

By Josh White and Michelle Boorstein
Washington Post Staff Writers
Thursday, December 6, 2007; A01

A Navy chaplain who is HIV-positive is expected to plead guilty this morning to charges that he used his positions at the U.S. Naval Academy and Marine Corps Base Quantico to lure midshipmen and Marines into sex acts, according to military officials and sources familiar with the case.

Marine Corps officials announced yesterday that Lt. Cmdr. John Thomas Matthew Lee, 42, who is a Catholic priest, is scheduled to face a court-martial at Quantico on charges that stem from several alleged incidents from 2003 to 2007. The charges include consensual and forcible sodomy for allegedly having sex with several men; indecent acts for allegedly posing for nude photographs; aggravated assault for not informing an alleged victim of his HIV status; and conduct unbecoming an officer.

It is unclear whether any of the men has been infected with HIV. But prosecutors allege that Lee, knowing he had tested positive for the virus in 2005, had sex with an Air Force lieutenant colonel in December of last year and exposed him to the virus without telling him.

In another instance, court documents also indicate that Lee fraternized with one midshipman over a two-year period after the student came to him for counseling and advice in 2004. Lee offered the underage midshipman alcohol, engaged in sex acts, asked him to take nude photographs of Lee and e-mailed him pornographic photos of naked men, according to the documents. The Washington Post generally does not identify victims of sex crimes.

Lee was a chaplain at the Naval Academy from September 2003 to October of last year, and investigators found that he had sex or inappropriate contact with several men, including some academy students who went to him for counseling after they were identified as homosexuals, the documents and sources indicate.

One source familiar with the case, who spoke on condition of anonymity, said Lee would start conversations with the midshipmen and then invite them to his office, where he allegedly had them take nude pictures of him before he would initiate sex. A charge of forcible sodomy could result if Lee used his rank to have sex with subordinates.

A Naval Academy spokeswoman declined to comment on the case because it is an ongoing legal matter. Marine Corps and Navy officials also declined to comment.

Lee is also accused of using his government computer at Quantico to search for and save almost 375 pornographic images, to send people lewd pictures of himself and to solicit sexual encounters over the Internet. Lee also had inappropriate sexual contact with a Marine corporal while at Quantico, court documents indicate.

Lee faces a potential maximum life sentence without parole in the forcible sodomy charge, but his attorney, David P. Sheldon, said Lee has reached a plea agreement. Sheldon declined to discuss terms of the deal.

"Chaplain Lee will be pleading guilty before a general court-martial," Sheldon said. "He has entered into a pretrial agreement with the government that will substantially reduce his exposure to confinement. He's extremely remorseful about what happened and about his conduct, both as a chaplain and as an officer. He will take responsibility for what he has done."

Lee, a career chaplain from Phoenixville, Pa., was commissioned an officer in November 1988, according to Navy records, and served worldwide, including with the 1st Marine Division at Camp Pendleton, at Pearl Harbor and in Italy, before arriving at the Naval Academy in 2003. He was reassigned to Quantico in November of last year and was relieved of his duties in June, when an alleged victim contacted the military.

Lee was ordained in 1993 as a priest of the Washington Archdiocese, in a joint program with the archdiocese that serves Catholics in the military. The Washington Archdiocese includes the District and its Maryland suburbs.

For three years, Lee served as an associate pastor at St. Jerome parish in Hyattsville, and he then began his service with the Navy, Washington Archdiocese spokeswoman Susan Gibbs said. She said Lee came to the military archdiocese in June, saying he was "facing allegations of adult sexual misconduct."

Both archdioceses then withdrew Lee's credentials to operate as a priest. Gibbs said officials did not push for more details because they "didn't have any information, and it was a military investigation."

The Archdiocese for the Military Services, which oversaw Lee as a priest, issued a statement last night saying it had no prior knowledge of the allegations before Lee reported them in June.

The Rev. Thomas P. Doyle, a former Air Force chaplain who lives in Vienna and advocates full time for victims of sexual abuse by clergy members, said yesterday that Catholics should not be upset that church officials weren't more involved.

"My experience in 20-some years is that the church is the last outfit that does it right," Doyle said. "The proper investigation and execution of justice will happen with the military, not the church."

Doyle, who was a military chaplain for almost 20 years, said as a priest, Lee would have a different type of contact with low-ranking troops than a typical officer would. "He can do things, go places and have access to enlisted personnel no other officers can, because of rules against fraternization," he said. Officers typically "don't spend time in dorms, don't eat dinner with cadets. But he could do that."

The case comes amid a string of alleged sexual misconduct incidents at the Naval Academy, including a former star quarterback being convicted last year of conduct unbecoming an officer after he was accused and cleared of raping a female midshipman. Another ex-football player was convicted of indecent assault in April, and last month a Navy physician was sentenced to four years in prison for using a hidden camera at his home to tape midshipmen having sex.

US: North Carolina soldier pleads guilty to reckless HIV transmission; sentenced to 40 months

Soldier Pleads Guilty to Passing HIV Infection

Posted: Nov. 1, 2007

Fort Bragg —A soldier pleaded guilty Thursday during a court-martial to knowingly infecting a 17-year-old boy with HIV.

Pfc. Johnny Lamar Dalton, 25, a member of the 82nd Airborne Division, pleaded guilty to three counts of aggravated assault by means likely to cause grievous bodily harm or death and one count each of committing an indecent act, violating an order from an Army officer to inform sexual partners of his HIV and using marijuana.

Military judge Col. Patrick Parrish sentenced Dalton to 40 months in military prison, a reduction in rank to private and a dishonorable discharge. The prosecution had requested six years in confinement in addition to the discharge.

Dalton broke down in tears during the hearing, apologizing to his wife and his 4-year-old daughter for his actions.

"Of everyone I let down, I let her down the most," he said of his daughter. "I would just like to tell her I'm sorry."

Dalton joined the Army three years ago and learned he was infected with HIV in June 2006. His illness barred him from deploying, but he was able to stay in the Army as long as he could perform his job.

Last November, he was ordered not to have sex without first telling his wife or other potential partners of his HIV infection, and he signed an order to that effect, authorities said.

The mother of the unidentified boy, who is now 18, said her son first met Dalton in a gay online chatroom and then in person.

Doctors conducting routine blood tests in February found that the teen was HIV-positive.

"When someone basically shortens your life, whether it's your's or your child's, you feel cheated," the teen's mother said in July.

Dalton was arrested in July after a five-month investigation by Fort Bragg military police and the Cumberland County Sheriff's Office. He has been confined at Camp Lejeune since his arrest.

"We were caught up in the moment," Dalton told Parrish in trying to explain his actions with the teen.

Tarika Dalton testified that she would stand by her husband.

"My husband is not a bad person and is definitely sorry for what he's done," she said.

Spc. Camilla Milhorn, who has worked with Johnny Dalton at Fort Bragg, also testified in his defense.

"He's a great person who just made a bad mistake," Milhorn said.

The teen's mother said she would have preferred a longer sentence, but was glad the case had been resolved.

"I feel for his daughter. She's without a father now," she said.

Reporter: Bryan Mims

Copyright 2007 by WRAL.com. All rights reserved.

http://www.wral.com/news/local/story/1992178/