WICHITA, Kansas (AP) – The highest US military court on Monday reversed the aggravated assault conviction of an airman accused of exposing multiple sex partners to HIV at swinger parties, while upholding other charges against him.
The US Court of Appeals for the Armed Forces unanimously ruled that prosecutors failed to prove that any of David Gutierrez’s acts were likely to transmit HIV to his partners.
However, the court upheld a lesser conviction of assault by battery for offensive touching to which his sexual partners did not provide meaningful informed consent.
It also upheld his conviction for adultery, even though his wife participated with him in the swinger lifestyle. The court said the participation of his wife in the offense is “immaterial to the question” of whether the government presented sufficient evidence to sustain the conviction.
His defence attorney, Kevin McDermott, said he would wait to comment until he had a chance to fully review the decision.
Gutierrez was a sergeant at McConnell Air Force Base in Wichita in 2011 when he was stripped of his rank and sentenced to eight years behind bars. In addition to aggravated assault, Gutierrez also was found guilty of violating an order to notify partners about his HIV status and to use condoms.
He was also convicted of indecent acts and adultery. He has not been accused of actually infecting anyone with HIV.
The appeals court upheld the lower court’s decision as to the remaining charges. The case was sent back to the lower court for its determination on whether to either reassess the sentence or set it aside and order a rehearing. Also left for the lower court’s consideration is whether his due process rights were violated by the long appeal process.