Q. Is transmitting a sexually transmitted disease a crime in the military?

A. Usually, the government will not charge a service member solely for knowingly transmitting a sexually transmitted disease other than a deadly STD such as HIV. But if an intimate partner accuses a service member of giving him or her an STD, the transmitter could face nonjudicial punishment under Article 15 of the Uniform Code of Military Justice or receive a significant administrative sanction such as a general officer memorandum of reprimand or even separation. Charges related to STD transmission tend to be levied when the service member transmitted a deadly STD or engaged in other types of misconduct during the act, such as sexual assault or adultery in violation of Articles 120 and 134 of the UCMJ, respectively.

HIV-infected service members who engage in sexual intercourse, usually without warning an intimate partner about the risks of transmission, could be convicted of aggravated assault with a means likely to cause death or grievous bodily harm in violation of Article 128 of the UCMJ, the U.S. Court of Appeals for the Armed Forces noted in U.S. v. Brandon M. Dacus (2008). Waging criminal charges for this misbehavior is not something new. In U.S. v. Robert A. Woods (1989), the U.S. Court of Military Appeals held the transmission of HIV (then known as Human T-cell Lymphotropic Virus 3) violated the General Article of the UCMJ (Article 134), when a service member "engaged in sexual intercourse with another, knowing that to do so without protection was an 'inherently dangerous' act likely leading to 'death or great bodily harm.'" Under the circumstances, the service member's conduct must also be prejudicial to the good order and discipline. Obviously, engaging in sexual intercourse with another when the transmitting partner knows he or she has HIV will always be found to be prejudicial to good order and discipline because of the health risks involved.

HIV-infected service members need to know that they could be committing an assault offense even if they use protection and their partners do not test positive for the STD. For example, the appellant in U.S. v. Erica L. Hurts (2014), an HIV-infected Army private, was convicted of, among other things, six specifications of assault with a means likely to produce death or grievous bodily harm. The accused appealed one of those specifications by noting it was based on her engagement in protected sexual intercourse with a male private during a period when she had an undetectable viral load. While female-to-male transmission rates were already low (five in 1,000), a medical expert testified that when viral loads are undetectable and the infected party uses a latex condom, the risk of transmission was "remote." Noting that "the evidence [did] not establish beyond a reasonable doubt that the probability of infection was more than a remote possibility," the U.S. Army Court of Criminal Appeals found the accused's conduct with the private constituted only the lesser included offense of assault consummated by a battery. Thus, it was still a criminal act.

Moreover, while not as life-threatening as HIV, genital herpes transmission by a service member who does not use protection or warn his or her partner, could also merit a charge of aggravated assault with a means likely to produce grievous bodily harm, as found by the U.S. Navy-Marine Corps Court of Military Review in U.S. v. Frank L. Reister (1994). "The recurring nature of the disease, along with associated medical problems it can cause, permits it to be considered a means likely to produce grievous bodily harm," the court held.

Service members who are facing Article 128 or 134 charges because they allegedly transmitted an STD should immediately consult with a military law attorney. Depending on the circumstances, an attorney could show the service member did not know he or she was infected or that the transmission of the STD was not likely to produce grievous bodily harm.

Mathew B. Tully is a veteran of the Iraq and Afghanistan wars and a founding partner of Tully Rinckey PLLC. Email askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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