Tuesday, May 06, 2008

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.


Anonymous said...

So he wanted to take back his guilty plea I guess. Did he want to go to trial on that?

Cloudesley Shovell said...

The original charge of attempted murder seems to be a bit of overcharging. It did make me wonder, however, how the old common law year-and-a-day rule in murder cases would play out.

I did a quick Lexis search, but didn't find any cases that squarely address whether the year-and-a-day rule applies to murder prosecutions under the UCMJ. The rule seems to be on the wane generally, since advances in medical science have made it easier to determine the cause of death.

Mike "No Man" Navarre said...


Under the majority reasoning, could an accused be charged with agg assault even if he (I guess or she) complied with the order? I am guessing that is what CAAflog was asking with the subject line to the post. Would seem he could be.

Cloudesley Shovell said...

I gather from the opinion that the order had two essential elements: (1) inform partners of HIV status; and (2) wear a condom.

He violated the order by not complying with the requirement to inform, which would also be the basis for meeting the unlawful force or violence element of agg. assault, since there was no informed consent. Had he fully informed his partners of his status and used a condom, there is no crime, because there is no unlawfulness. In fact, had he informed his partner of his HIV status, and then, with his partner's consent, not used a condom, he'd only be guilty of violating the order, but not guilty of any form of assault.

I think CAAFlog was echoing Judge Ryan's point--if something has only a 1-in-50,000 chance of happening, then is it "likely", as in "likely to cause death or grievous bodily harm." At what point to you cross the line from likely to unlikely?

Anonymous said...

It is ironic that yesterday I posted a comment in regard to commander responsibility about the statistical odds of collateral damage during attacks. We have years of empirical data in which we know that about 20% of bombs that kill will kill innocents.

Under CAAF's reasoning, these commanders are committing war crimes. Bombing has well over a 1-in-50,000 chance of killing innocents. Noam Chomsky, for example, complains that it is far more than "likely" - it is KNOWN - that bombing will cause death or grievous bodily harm.

And the argument that war has a privileged place over sex simply won't fly. Sex is closer to a fundamental right than war.

Mike "No Man" Navarre said...


While I agree in principle, in theory, I believe it is relatively generally accepted that "the law does not permit a person to consent to an aggravated assault in which death or grievous bodily harm is likely." Thus, theopretically, one could obey the order, but because even protected sex has a 1 in 50,000 chance of spreading the HIV virus, be guilty of Agg Assault.

Cloudesley Shovell said...

No Man--

Are you quoting a case for that principle of law? If that theory is true, then this guy is guilty of agg. assault every time he has sex with his wife, regardless of the existence of any safe sex order.

Also, how can someone consent to a surgical procedure? If the law does not permit a person to consent, is not the surgeon always guilty of agg. assault?

Anonymous said...

No man,

I've been thinking about the same issue for a while too (personally, I think an examination of Judge Ryan's questions is long overdue).

Also, HIV+ members are still just getting the same old "safe sex" orders which suggest that they will be in full compliance with their legal obligations so long as they simply notify their partners and wear condoms.

Under the current law, though, I agree with you that the member could still be committing an aggravated assault, even if he complies with the order.

What, if any, impact do these orders have on the accused's liability? Would they support some sort of "constructive condonation" defense, going perhaps to the "wrongfulness" of the accused's action. Or, depending on the specific charge, some sort of mistake of fact, going to defeat specific intent? Or, would it simply be a matter to argue in E&M?

In light of the current law, wouldn't our interests be better served -- and members more accurately and fully advised of their legal obligations -- by issuing "no sex" orders? If the law is correct, I'd think such an order would be as valid as a "no pointing loaded guns at innocent people" order.


Mike "No Man" Navarre said...


Yes, though I hardly did a comprehensive search, my Google hit came up with that quote in Untied States v. Napier, NMCCA 200300805, unpub. op., (N-M.C.C.A. Jun 22, 2005).

Dwight Sullivan said...

The No Man is right. In United States v. Bygrave, 46 M.J. 491 (C.A.A.F. 1997), CAAF affirmed a conviction for aggravated assault even though the victim consented to sexual intercourse despite actually knowing that Petty Officer Bygrave was HIV-positive. The victim herself subsequently tested positive for HIV -- apparently as a result of her knowing and consensual sexual activity with Bygrave. She also later married Bygrave. CAAF relied on case law holding that "[o]ne cannot consent to an act which is likely to produce grievous bodily harm or death." United States v. Outhier, 45 M.J. 326, 330 (1996).

But CAAF did drop this interesting footnote: Because appellant was only prosecuted for having unprotected sex, we need not, and do not, address whether one may validly consent to protected sex with an HIV-positive partner. Although we have previously held that, in certain circumstances, a court may find that protected sex is an act likely to result in grievous bodily harm or death, see United States v. Joseph, 37 M.J. 392, 397 (CMA 1993), we have never held that protected sex with an HIV-positive partner must be so found as a matter of law.

Is anyone aware of subsequent case law that answered that undeveloped point?

[DISCLAIMER: I represented Petty Officer Bygrave when his case was before the Navy-Marine Corps Court, but not before CAAF.]

Anonymous said...

Consent is a defense to assault consummated by a battery, not agg. assault. A surgical procedure is not a form of aggravated assault, since the procedure is not supposed to be likely to result in GBH or death, so the law has no impact on whether a person can consent to surgery.

Judge Ryan's concurrence is interesting ln light of the doctor's testimony that HIV-infected people with Dacus' "low viral load" still managed to infect others, including babies. I don't think that the 1 person who got infected will be comforted by the opinion that even though his/her life is cut short and ruined by HIV, the other 49,999 are "safe."

Cloudesley Shovell said...

Thanks No Man and CAAFlog. Ordinarily I would have done my own research, but rather pressed for time today. Thanks for the education on this point of criminal law.

Being rather the libertarian, I do not like the idea that an HIV-positive person can be prosecuted for agg. assault against his/her spouse or any other consenting adult who has knowledge of the person's infection. But that's just my opinion, and we all know what opinions are like . . .

Also, upon further reflection (and Tami's comment) my surgeon hypothetical doesn't hold up, since surgery or medical procedures are by design meant to improve health and welfare, even if the means (a deep cut, or removal of an organ) would otherwise be "grievous bodily harm."

Anonymous said...

the issue become more crystallized when you remove politicized nature of AIDS and replace it with influenza (which kills far more people then AIDS) or a more banal STD. By the same logic why is kissing someone when you knowingly have the flue not a form of agg assault?

Anonymous said...

How do any of these old precedents survive Gonzales v. Oregon, 546 U.S. 243 (2006), or Lawrence v. Texas, 539 U.S. 558 (2003)?

NOW, the law DOES permit a person to consent to an aggravated assault in which death or grievous bodily harm is likely.

In Gonzales, the Supreme Court ruled that a federal drug law could not be used to prosecute Oregon doctors who prescribed overdoses intended to facilitate the deaths of terminally ill patients.

In Lawrence, when sodomy was recognized as a fundamental right, it now trumps undue burdens like those implied in the posts.

One does not need to be a "libertarian" to believe in limiting the power of the government. Being an American should be sufficient.

Cloudesley Shovell said...

The case CAAFlog mentioned, United States v. Bygrave, 46 M.J. 491 (C.A.A.F. 1997), discussed the privacy issues in some depth. The court held, at least on the facts of that particular case, that there was a compelling gov't interest because both women Bygrave had sex with were on active duty. CAAF concluded that the gov't had a compelling gov't interest in protected the health of servicemembers.

In light of Gonzalez and Lawrence, were a case to arise involving fully-informed consensual sex, the result might be different, at least if the sex partner were a civilian.