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 X 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 X 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. LEONARDA 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 X, 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.
X 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 X 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 X 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 X 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, X 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 X’s 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 X’s 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 X 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 X’s 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.