Should being HIV-positive AND having unprotected sex, when ordered not to, be punishable under the UCMJ?

2016-01-30T13:43:43-05:00

REPORT: WASHINGTON
Gavin B. Atchak’s commanding officer...ordered him to avoid unprotected sex after Atchak tested positive for HIV in 2011. The officer also directed Atchak, an enlisted man....to inform future sex partners that he carried the virus that can cause AIDS. Atchak disobeyed and engaged in unprotected oral and anal sex with...http://www.mcclatchydc.com/news/crime/article57147868.html

Military appeals courts confront sexual activity by HIV-positive troops

Gavin B. Atchak’s commanding officer at Seymour Johnson Air Force Base in North Carolina ordered him to avoid unprotected sex after Atchak tested positive for HIV in 2011.

Response by SFC Michael Hasbun made Jan 30 at 2016 1:48 PM

2016-01-30T13:48:49-05:00

That IS a crime actually....

Response by SGM David W. Carr LOM, DMSM MP SGT made Jan 30 at 2016 1:49 PM

2016-01-30T13:49:59-05:00

Yes for the safety of others

Response by PO1 William "Chip" Nagel made Jan 30 at 2016 1:54 PM

2016-01-30T13:54:04-05:00

Depending who and where you had sex it could cause an OPREP-3 (Incident Likely to cause Political Repercussions for the US Overseas). Yeah, If You have been Diagnosed and did this knowingly, Yep.

Response by LTC Private RallyPoint Member made Jan 30 at 2016 1:54 PM

2016-01-30T13:54:19-05:00

yes, we have idiots in the military who don't care or who want to punish society that we also have in the civilian sector. Look at the lawsuits and prison terms in the west and I am sure there is imprisonment and fines for idiots like that.

Response by CPT Jack Durish made Jan 30 at 2016 2:47 PM

2016-01-30T14:47:40-05:00

Civil law is still struggling with this one and maybe the military should lead the way as it has in other cases (such as integration). Some civil jurisdictions have passed explicit laws punishing those who have unprotected sex while infected. Others have prosecuted such offenders under existing laws for murder, manslaughter, attempted or actual, etc. Keep in mind that while ignorance of the law is no excuse, ignorance of the fact is. If, for example, a person is not aware they are infected and have unprotected sex. they should either be free of guilt or their crime mitigated. If both they and the consenting partner are fully aware of the condition, the "crime" should be mitigated. However, that's just my opinion...

Response by CPT Aaron Kletzing made Jan 30 at 2016 2:59 PM

2016-01-30T14:59:42-05:00

I thought that's already a crime?

Response by MCPO Roger Collins made Jan 30 at 2016 3:11 PM

2016-01-30T15:11:16-05:00

I could come up with 2 or more easily.

Response by CPT Private RallyPoint Member made Jan 30 at 2016 3:51 PM

2016-01-30T15:51:39-05:00

CPO Andy Carrillo, MS Knowingly having unprotected sex without informing your partner if you have HIV is a crime. (Criminal transmission of HIV).

Response by PFC Stephen Eric Serati made Jan 30 at 2016 4:52 PM

2016-01-30T16:52:36-05:00

Yes

Response by LTC Stephen F. made Jan 30 at 2016 5:27 PM

2016-01-30T17:27:26-05:00

Yes CPO Andy Carrillo, MS it should be punishable under the UCMJ if (1) you are notified that you are HIV-positive; (2) engaging in sex with somebody else who is uniformed that you are HIV positive and (3) you make no attempt to protect your sexual partner(s).
People who are not aware they are HIV positive should not be punished under the UCMJ for actions prior to their notification they are HIV positive. That probably should be evaluated under the reasonable man approach.

Response by LTC Charles T Dalbec made Jan 30 at 2016 5:38 PM

2016-01-30T17:38:28-05:00

UCMJ Punushment all the way!!

Response by Cpl Mark McMiller made Jan 30 at 2016 5:48 PM

2016-01-30T17:48:08-05:00

This scumbag has shown a willful disregard for the safety of his sex partners; his actions are immoral and criminal. He should be tried, convicted, and then taken out back and shot.

Response by PO1 Brian Austin made Jan 30 at 2016 6:18 PM

2016-01-30T18:18:09-05:00

Others have stated things much more eloquently, so i will just say Yes.

Response by COL David Turk made Jan 30 at 2016 7:59 PM

2016-01-30T19:59:22-05:00

I guess I've been out too long. Prior to my retirement in 2007, We were periodically tested for HIV, and if one tested positive, that started a process (verification, etc.) that had the service member separated. This was not a long process either.
Since the question was raised, I assume this has changed.
So my answer is yes, with a qualifier. I don't think the commander has the authority to deny sexual contact, but the commander could/should require the SM to notify their partner of their condition. This is based on the logic that it should be the same for any communicable disease (e.g., TB, herpes). I also believe it's the law. Civilians have been sent to jail for knowing they have HIV, TB, etc., but not telling their sexual partner.

Response by CPO Andy Carrillo, MS made Jan 30 at 2016 8:32 PM

2016-01-30T20:32:11-05:00

The military courts are now considering the likelihood of actual HIV transmission and how it factors into charging criminal assault--if the likelihood of transmission is low to nil, then that person shouldn't be charged with criminal assault, blah blah blah. My how times have changed...

Response by PFC Private RallyPoint Member made Jan 30 at 2016 9:13 PM

2016-01-30T21:13:25-05:00

Yes!

Response by PFC Private RallyPoint Member made Jan 30 at 2016 9:17 PM

2016-01-30T21:17:26-05:00

He disobeyed a DIRECT order from an officer. JAIL TIME.

Response by COL Charles Williams made Jan 30 at 2016 11:51 PM

2016-01-30T23:51:36-05:00

Yes

Response by PFC Vince Bell made Jan 31 at 2016 6:07 AM

2016-01-31T06:07:50-05:00

Yes. Chemical warfare

Response by 1SG Private RallyPoint Member made Jan 31 at 2016 3:53 PM

2016-01-31T15:53:13-05:00

At issue is that this Airman was given an order that he did not follow. Legal gymnastics around aggravated assault aside, disobeying a lawful order is punishable under UCMJ. And there would have been a lot of counts.
Morally, this Airman's behavior is reprehensible. Not informing sexual partners that you have an infectious disease that if contracted will likely result in their death is not acceptable. He did it purposely so that he could continue to enjoy an active sex life without regard to the health and safety of his partners.

Response by SGT Jerrold Pesz made Jan 31 at 2016 8:55 PM

2016-01-31T20:55:08-05:00

Personally I think that the guy should be castrated.

Response by Col Joseph Lenertz made Feb 1 at 2016 8:50 AM

2016-02-01T08:50:01-05:00

While the focus of the article is on whether Aggravated Assault charges can stick, the commander's order appears to be lawful. So even if the court decides it is not aggravated assault, he would still face the disobeyal charges.

Response by Lt Col Scott Shuttleworth made Feb 1 at 2016 9:53 AM

2016-02-01T09:53:49-05:00

BOTTOM LINE: He disobeyed a direct order. HIV aside...A legal order was given, received, and was not disputed. Therefore, yes. Punish him and move out.

Response by SFC William Swartz Jr made Feb 1 at 2016 10:03 AM

2016-02-01T10:03:32-05:00

Yes, you have an incurable (as I write anyways), sexually transmittable disease and have been issued a lawful order not to engage in unprotected sexual activity...

Response by SFC Private RallyPoint Member made Feb 1 at 2016 4:54 PM

2016-02-01T16:54:59-05:00

Yes, yes, yes, yes, yes

Response by LTC Stephen C. made Feb 1 at 2016 6:26 PM

2016-02-01T18:26:25-05:00

It's a crime, CPO Andy Carrillo, MS. Punish accordingly.

Response by 2LT Private RallyPoint Member made Feb 1 at 2016 7:17 PM

2016-02-01T19:17:14-05:00

He should be forced to be experimented on to find a cure for HIV.

Response by SSG Private RallyPoint Member made Feb 1 at 2016 7:26 PM

2016-02-01T19:26:07-05:00

Honestly, I'm confused why this is even a question. This guy is ten shades of wrong. He has no respect for anyone but himself and no place in my military. Start the paperwork, Top!

Response by SrA Paul Pfeil made Feb 1 at 2016 9:39 PM

2016-02-01T21:39:49-05:00

He deserves a death sentence for giving his victims a death sentence. And like it or not if his victims are military they get a military discharge, and 100% disability and All media bills paid for. That's how it needs to be.

Response by SFC Private RallyPoint Member made Feb 1 at 2016 10:20 PM

2016-02-01T22:20:10-05:00

Absolutely. It is aggravated assault plain and simple. If he had to be ordered to stop having unprotected sex, why is he still wearing a uniform. It's disgusting.

Response by SGT Private RallyPoint Member made Feb 1 at 2016 11:35 PM

2016-02-01T23:35:34-05:00

Article 134 of the uniform code of military justice is a catch all. no matter what you do, if you are in the wrong you can still be punished.

Response by SSgt Christopher Brose made Feb 2 at 2016 1:34 AM

2016-02-02T01:34:01-05:00

What the hell is the military doing with HIV+ servicemen on active duty? Damn, I'm glad I retired.

Response by LCpl Justin Farris made Feb 2 at 2016 3:38 AM

2016-02-02T03:38:26-05:00

Shoot him.

Response by Olusiji Aderibigbe made Feb 2 at 2016 7:45 AM

2016-02-02T07:45:28-05:00

This is simply an open and shut case of "Disobedience of a lawful order".

Response by Olusiji Aderibigbe made Feb 2 at 2016 7:47 AM

2016-02-02T07:47:00-05:00

This is a simple open and shut case of "Disobedience of a lawful order".

Response by SGT Regan Bensyl made Feb 2 at 2016 10:41 AM

2016-02-02T10:41:04-05:00

Around these parts it's considered to be attempted murder.

Response by SSgt Private RallyPoint Member made Feb 2 at 2016 3:31 PM

2016-02-02T15:31:41-05:00

He disobeyed an order. Charge him. Simple as that.

Response by MSgt Steven Wilken made Feb 2 at 2016 11:42 PM

2016-02-02T23:42:12-05:00

So an individual with HIV, likely requiring to take a medical cocktail to control the viral load gets to stay on active duty, while a Reservist with Arthritis, taking common anti-inflammatory medication is forced out through a PEB board, not because of the medical condition but the medication being taken. Reasoning, the arthritis medication might not be available in a deployed situation.

Response by PO2 Michael Longson made Feb 3 at 2016 8:53 AM

2016-02-03T08:53:13-05:00

This indeed is and should be a criminal act, both for UCMJ and civilian law.

Response by MSG Brian Allen made Feb 3 at 2016 8:27 PM

2016-02-03T20:27:22-05:00

Personal knowledge of an individual who was CM'd and sentenced to 31 years for the very same crime.

Response by Sgt Jon Agner made Feb 4 at 2016 10:38 PM

2016-02-04T22:38:06-05:00

Hang him

Response by SGT Jimmy Carpenter made Feb 5 at 2016 4:07 PM

2016-02-05T16:07:18-05:00

I chose other. If you know you're HIV positive and you have unprotected sex, you should be charged with attempted murder.

Response by SPC Terry Castro made Feb 6 at 2016 4:41 PM

2016-02-06T16:41:54-05:00

It is a crime, isn't it considered pre meditated murder or attempted murder?

Response by MSgt Dave Nicholas made Feb 11 at 2016 4:54 PM

2016-02-11T16:54:37-05:00

Yes. He can be charged with aggravated assault. By knowing he had HIV and knowing what HIV can lead to, it can be argued that he intended to cause grievous bodily harm.

Response by Capt Seid Waddell made Apr 17 at 2016 12:33 AM

2016-04-17T00:33:29-04:00

It is the same as 2nd degree murder.

Response by SGM Joel Cook made Apr 17 at 2016 6:06 PM

2016-04-17T18:06:07-04:00

CPO Carrillo I am not sure, but it seems from your question that you are implying that it is not against UCMJ. Are you thinking that it should be OK to disobey a lawful order? Does the Navy now not obey lawful orders? Your question does seem like nonsense when viewed from that perspective. From the time that I first became a 1SG in 1992 I have had HIV positive soldiers in my units. Some Commanders told me about them after swearing me to secrecy others kept it from me until forced by circumstances to tell me. The first guy got all those orders about no unprotected sex, he must inform his sexual partners before having sex etc. After having got those orders he infected five women. In those days it was still a death sentence to be HIV positive. He was court marshaled and got a hefty sentence in Fort Leavenworth of 35 years. Almost every unit after that I had at least one HIV positive soldier infected someone and got serious UCMJ actions. I fear that HIV positive military personnel are in higher numbers than you or even I know for sure. So yes it should be against UCMJ to continue good order and discipline in the military.

Response by TSgt Private RallyPoint Member made Aug 9 at 2016 11:16 AM

2016-08-09T11:16:51-04:00

No. It is proven that antiretroviral medication that reduces the viral load to undetectable levels in the blood makes it impossible for that person to pass it on sexually according to an international study following 58,000 condomless sex acts between mixed status partners resulting in ZERO transmissions.

HIV is primarily spread by people that do not know they are infected and have high viral loads.

Response by SFC J Fullerton made Aug 18 at 2016 2:54 PM

2016-08-18T14:54:49-04:00

To be punishable under UCMJ for unprotected sex while knowingly being HIV positive would mean that the SM was not medically discharged and actively serving being HIV positive. That is a medical disqualification for enlistment and was grounds for an immediate medical discharge if tested positive, apparently not anymore?

Response by PO1 David M Burns made Nov 5 at 2016 11:41 AM

2016-11-05T11:41:45-04:00

Indulging in homosexuality while in the service is against the ucmj and is punishable by court martial especially spreading a deadly disease like hiv,not to mention disgusting!

Response by SSG Robert Perrotto made Jul 20 at 2017 6:28 PM

2017-07-20T18:28:15-04:00

If you knowingly have unprotected sex with HIV, you are basically transmitting a communicable disease willingly. To me, that is tantamount to attempted murder. If you willingly go against your commanders orders on this, be prepared for a courts Martial.