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Military Court Upholds Convicts of Sailor for Failure to Disclose HIV Status to Sexual Partners

Military Court Upholds Convicts of Sailor for Failure to Disclose HIV Status to Sexual Partners

A military appellate court has upheld a lower court’s ruling that a sailor sexually assaulted four women with whom he had consensual sex because he failed to disclose his HIV status.

The appellate court last week affirmed an earlier ruling in the case, U.S. v. Forbes. The women could not provide “meaningful, informed consent” to have sex with the sailor, Aviation Maintenance Administrationman 2nd Class Lamar Forbes, because they didn’t have all the facts before consenting, the court found. Thereby, the government argued, they were sexually assaulted.

Previous military convictions for failing to disclose a positive HIV status have been for aggravated assault, failure to obey a lawful order requiring disclosure, or a lesser charge.

Forbes tested positive for HIV in 2012 and was counseled to advise prospective partners that he was HIV-positive. Feldmeier said his client was on antiviral medications at the time of the sexual relationships addressed in the suit, and that his viral load at the time was “barely detectable.”

In its ruling, the NavyMarine Corps Court of Criminal Appeals noted that one of Forbes’ victims had discussed getting tested but had been assured by him that “he was clean.” Another victim told Forbes that she was taking medication that weakened her immune system because she had recently had a kidney transplant. But according to the court, the appellant “assured her that he ‘wouldn’t do anything to jeopardize that.'”

“These two situations betray the callousness and deceit of the appellant and are particularly aggravating,” wrote Navy Cmdr. Heather Partridge, NMCCCA judge. “Additionally, the appellant brazenly continue to have frequent, unprotected sexual intercourse with the two women despite knowing he was actively being investigated by NCIS.”

Since the appellate decision is novel, it may very well be appealed to the US Supreme Court.  Since sexual assault has been historically defined as  lacking consent, the basis for appeal may be found in the very definition of the charge.

On the other hand, the US Department of Justice’s website defines sexual assault as “any nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks capacity to consent.”  The last part of the definition is problematic for the appeal because it could be argued that these women “lacked the capacity to consent” because the sailor’s health status was not disclosed to them and such disclosure may have led them to make a different decision.

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