Military Law

Top military court will hear appeal of airman accused of exposing others to HIV


Corrected: The nation’s top military court has agreed to hear the appeal of a Kansas airman sentenced to eight years in prison for exposing others to HIV.

The Court of Appeals for the Armed Forces will review the evidence against David Gutierrez, a sergeant who was stripped of his rank as a result of the 2011 conviction, the Associated Press reports. He was convicted of aggravated assault, indecent acts and adultery for exposing others to HIV at swinger parties in Wichita, the story says.

Gutierrez’s lawyer, Kevin McDermott, told AP the case was based on old attitudes about HIV “and how infectious it was and how much of a death sentence it was at that particular time.”

The July 31 order granting review says the court will consider three issues: whether the evidence was sufficient to establish aggravated assault likely to result in grievous bodily harm, whether the evidence was sufficient to establish adultery, and whether McDermott’s due process right to a speedy review was violated by an unreasonable delay in post-trial processing.

According to AP coverage at the time of his sentencing, Gutierrez apologized and said he thanks God that none of his sex partners contracted the disease. Some witnesses at trial said Gutierrez’s wife also attended the swinger parties and encouraged him to participate, according to AP.

A group called the Office of Medical and Scientific Justice issued a press release about the case.

Hat tip to How Appealing.

Corrected at 6:34 p.m. to state that Gutierrez apologized at the time of his sentencing and that Gutierrez’s wife attended swinger parties.

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