Wednesday, February 25, 2015

Undisclosed HIV+ and aggravated assault

On February 23, in United States v. Gutierrez (the seventh decision of the September 2014 Term), the U.S. Court of Appeals for the Armed Forces unanimously overturned a conviction for aggravated assault where the accused failed to alert sex partners that he was HIV+:
An aggravated assault includes the element that the assault was committed with “a dangerous weapon or other means or force likely to produce death or grievous bodily harm.” Article 128(b)(1), UCMJ. Applying a plain English definition of “likely,” as well as this Court’s precedent regarding aggravated assault outside the context of HIV, testimony that the means used to commit the assault had a 1–in-500 chance of producing death or grievous bodily harm is not legally sufficient to meet the element of “likely to produce death or grievous bodily harm.” Id. As a result, we reverse Appellant’s conviction for aggravated assault, and affirm the lesser included offense (LIO) of assault consummated by battery.
Along the way, the court expressly overruled two of its own precedents and cited a decision of the Supreme Court of Canada: "R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”)." Reference to foreign law in the court's case law is exceedingly rare. Zach Spilman's analysis of the decision can be found here, on CAAFlog.

Query: How often has CAAF overruled its own precedent? Please post a comment (real names, please) if you know of examples (extra credit for an exhaustive list).

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