Is 1 in 50,000 likely?

CAAF's opinion in United States v. Dacus, __ M.J. ___, No. 07-0612/AR (C.A.A.F. May 6, 2008), is more interesting for Judge Ryan's concurrence (joined by Judge Baker) than for the majority opinion.

Staff Sergeant Dacus was HIV positive and engaged in sexual activity with two women. He was charged with two specs of attempted murder, but pled out to two specs of aggravated assault. He also pled to two specs of adultery -- the natural tag-along offenses in an attempted murder case.

Dacus had been ordered to inform any sex partners that he was HIV positive and to wear a condom during intercourse. He informed neither of the two victims that he was HIV positive and engaged in sexual intercourse with one of the victims 11 times without wearing a condom.

Dacus entered into a stipulation admitting that the "probability" his acts would transmit HIV to one of his sexual partners "was more than a mere fanciful, speculative, or remote possibility."

During its sentencing case, the defense called a doctor who was an AIDS expert. The doctor testified that Dacus was a rare HIV-positive individual with a low "viral load." The doctor "testified that it was 'unquestionably' possible that Dacus could transmit the virus but the likelihood was '[e]xtremely low' due to his low viral load." Id., slip op. at 6.

On appeal, the defense argued that the doctor's testimony was inconsistent with the means "likely to produce death or grievous bodily harm" element of aggravated assault and that the military judge was under a duty to reopen the providence inquiry. CAAF disagreed, relying on a line of case law holding that "[w]here the magnitude of the harm is great," a means can be considered likely to produce death or grievous bodily harm "even though the risk of harm is statistically low." Id., slip op. at 8 (quoting United States v. Weatherspoon, 49 M.J. 209, 211 (C.A.A.F. 1998)). Under this precedent, the risk of harm need only be "more than merely a fanciful, speculative or remote possibility." Id.

While agreeing with the outcome in this case, Judge Ryan -- joined by Judge Baker -- expressed scepticism about the "means likely" precedent. She wrote: "In my view, as a matter of first impression, it would not appear that the statutory element -- 'means or force likely to produce death or grievous bodily harm' –- should be satisfied where the record shows that the likelihood of death or grievous bodily harm from a particular means is statistically remote." Dacus concurring opinion at 1. She noted that because of Dacus's low viral load, the expert witness "asserted that the probability of Appellant's transmission of HIV through unprotected sex was approximately 1 in 10,000. He further explained that if Appellant used a condom, the chance of transmission would diminish to 1 in 50,000." Id. She then observes, "Common sense seems to dictate that an event is not 'likely' for purposes of Article 128(b)(1), UCMJ, regardless of the harm involved, if there is only a 1 in 50,000 chance of that event occurring." Id. at 2.

Judge Ryan expressed "grave doubts that the statutory element should be deemed satisfied where the statistical probability of the consequence of an act is so low as to approach being no 'more than merely a fanciful, speculative, or remote possibility.'" Id. at 3. She concluded, "Appellant pleaded guilty to the instant offenses, but I am open to revisiting this issue in an appropriate case." Id. Having called this issue to the bar's attention, she will likely have an opportunity to revisit it soon.