Takeaway
In short, this case holds that an informed partner's consent does not excuse an HIV-positive service member's unprotected intercourse when the exposure is likely to cause death or grievous bodily harm, and the military's compelling health and readiness interests sustain that rule against the asserted privacy challenge.
Bygrave, a Navy service member who knew he was HIV-positive, had unprotected sexual intercourse with two partners. He did not disclose his condition to Petty Officer J, who later tested HIV-positive. Beginning in 1990, he disclosed his HIV status to BM3 C before they began a sexual relationship. They nevertheless had intercourse regularly, using condoms most, but not all, of the time; BM3 C later tested HIV-positive, and the two married six months later.
A military judge sitting alone convicted Bygrave of two specifications of aggravated assault under Article 128(b)(1) of the Uniform Code of Military Justice. He did not challenge the conviction involving Petty Officer J. On the specification involving BM3 C, he argued that her actual knowledge of his HIV status and her consent to sex supplied a defense. The Navy-Marine Corps Court of Criminal Appeals affirmed the findings and approved sentence after a remand for a new convening-authority action. The Court of Appeals for the Armed Forces granted review solely on the effect of BM3 C's informed consent.
Issue #1
Whether an HIV-positive service member's partner can legally consent to unprotected intercourse that is likely to transmit HIV, thereby defeating an aggravated-assault charge under Article 128.
Holding
No. Informed consent is not a defense to aggravated assault where the accused engages in unprotected sex that is likely to cause death or grievous bodily harm.
Reasoning
Article 128 defines aggravated assault as bodily harm done with unlawful force or violence by a means or force likely to produce death or grievous bodily harm. The court's prior HIV cases established that a service member who willfully exposes another person to HIV through unprotected intercourse may use a means likely to produce death or grievous bodily harm. Bygrave did not contest the medical premise underlying those precedents.
Consent is not an element of aggravated assault in the way that lack of consent is an element of rape. Although consent can sometimes defeat a simple-assault charge, assault law generally does not recognize consent to an act likely to inflict grievous bodily harm or death. Because the legal system treats such consent as invalid, BM3 C's informed agreement did not make Bygrave's conduct lawful force rather than unlawful force.
The court rejected the argument that it should wait for Congress to enact HIV-specific legislation, as several states had done. Congress already broadly prohibited aggravated assault by means likely to cause death or grievous bodily harm, and it created no exception for informed, consensual unprotected intercourse involving an HIV-positive person. Any policy-based exception had to come from Congress, not judicial revision of Article 128.
The ruling was limited to the conduct charged: unprotected intercourse. The court did not decide whether an informed partner may legally consent to protected sex with an HIV-positive service member, nor did it address consent where both partners are already HIV-positive. It also noted that future medical advances could require reconsideration of the premise that HIV exposure is likely to cause death or grievous bodily harm.
Issue #2
Whether applying Article 128 to consensual unprotected heterosexual intercourse between an HIV-positive service member and an informed, uninfected military partner violates a constitutional right to privacy or sexual intimacy.
Holding
No. Even assuming a constitutional privacy right covers the conduct, the Government's compelling interests justified the prosecution on these facts.
Reasoning
The court recognized that Supreme Court privacy precedents protect some decisions involving marriage, contraception, procreation, and abortion, but they did not clearly establish a fundamental right to private heterosexual intercourse between unmarried adults. Rather than definitively recognize or reject such a right, the court assumed that a protected privacy interest might exist and evaluated the Government's countervailing interests.
The Government had a powerful interest in protecting BM3 C's health and life from a contagious, potentially fatal disease. Her voluntary decision to accept the risk did not eliminate that interest, because HIV infection could also endanger future sexual partners, children, and others to whom she might transmit the virus.
The Government's interest was especially compelling because BM3 C was herself a service member. Infection could reduce military readiness, impose extraordinary medical-care costs, and create risks of further transmission within the armed forces. Military law has long permitted measures designed to prevent the spread of communicable diseases, even when those measures substantially burden individual choices.
On the facts presented, those interests were sufficient to prohibit unprotected intercourse between an HIV-positive service member and an uninfected, unmarried military partner, even if the conduct fell within some constitutional zone of privacy. The court did not decide how the constitutional balance would differ for civilian partners, for marital intercourse, or for protected sex after disclosure. It also noted possible fair-notice concerns if the military prosecuted conduct its HIV counseling appeared to permit, but Bygrave did not raise such a claim and admittedly had unprotected sex.