Is Engaging in "Unprotected Sex" an Aggravated Assault if the Accused is HIV Positive?

Posted by Patrick McLain | Feb 04, 2016 | 0 Comments

In February 2016, our highest military appeals court, the U.S. Court of Appeals for the Armed Forces, will address that very question in the Atchak and Young cases; two appeals from the U.S. Air Force Court of Criminal Appeals. In both cases, the accused airman was HIV positive, had sex with another person, and in at least one of the cases, purportedly violated an order of his commander forbidding his participation in sex without the use of “protection”. Jammed into the legal arguments are reams of medical data about the likelihood, or unlikelihood, of transmitting the dangerous virus through various types of sexual conduct.

Read more here.

The new “witch hunt” on sexual conduct by military members has led to a spurt of cases on sex in the military appellate courts. Debate on the relative dangers of various sex acts and the ontological discussions on what constitutes consent in the conduct of adults engaging in sex now fills up the reporters recording these courts' decisions. It is safe to say that it is not at all clear what conduct is sanctioned and what conduct is sanctioned, to use both senses of the term, by the military justice system.

That is why it is so important to seek legal counsel if you are ever charged with misconduct in the military justice system. Make no decision when approached to be questioned, or when charged with a crime, without first consulting an attorney. All the military services provide legal counsel at no charge at such times, and there are many well-qualified “civilian” attorneys to help you make sound decisions and remain safe from unjust prosecution, unlawful interrogation, or trumped up charges.

About the Author

Patrick McLain

Military Criminal Defense Attorney Patrick J. McLain Attorney Patrick J. McLain is a retired military judge in the Marine Corps. He has practiced military law and criminal defense since 1990 where his first jury trials were held in Saudi Arabia deserts during both operations Desert Storm and D...

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