Prosecuting an HIV-Related Crime in a Military Court-Martial: A Primer

摘要

Prosecuting an human immunodeficiency virus (HIV) assault under the Uniform Code of Military Justice (UCMJ) creates unique substantive and procedural challenges for the military prosecutor. Substantively, the challenge for prosecutors begins with the fact that there are no HIV-specific articles in the UCMJ. Procedurally, prosecutors may encounter witness issues, pretrial agreement (PTA) provisions, and sentencing arguments that are unique to HIV prosecutions. This article discusses all of these challenges in two major sections: the charging decision and procedural issues.rnIn section II, this article analyzes the charging decision in HIV cases. The most common methods of charging HIV-related misconduct under the UCMJ are aggravated assault under Article 128, violation of a "safe-sex" order under Article 90 or Article 92, and conduct that is prejudicial to good order and discipline and/or service discrediting under Article 134. The applicable tests and standards for HIV prosecutions, especially for aggravated assaults, were fairly well-settled until the 2008 decision by the Court of Appeals of the Armed Forces (CAAF) in United States v. Dacus. In Dacus, a two-judge concurrence expressed concern about the viability of the current practice of charging HIV-related assaults as aggravated assaults. The section will look at the effect of Dacus on HIV charging decisions. It also looks at the effect of recent developments regarding an individual's right to private sexual behavior on the constitutionality of HIV "safe-sex" orders.