United States v. Joseph

SULLIVAN, Chief Judge

(concurring):

I agree with the conclusion of the majority opinion that appellant could be lawfully found guilty of aggravated assault in violation of Article 128(b)(1), Uniform Code of Military Justice, 10 USC § 928(b)(1). Sufficient evidence was admitted in this case to permit a reasonable person to find beyond a reasonable doubt that appellant assaulted Petty Officer W with a “means or force likely to cause ... grievous bodily harm.” United States v. Johnson, 30 MJ 53 (CMA), cert. denied, 498 U.S. 919, 111 S.Ct. 294, 112 L.Ed.2d 248 (1990); see Commonwealth v. Brown, 413 Pa.Super. 421, 605 A.2d 429 (1992). I write to more particularly delineate those legal principles which permit his conviction for the predicate crime of simple assault under the circumstances of this case. See United States v. Redding, 14 USCMA 242, 244, 34 CMR 22, 24 (1963); United States v. Norton, 1 USC-MA 411, 413, 4 CMR 3, 5 (1952). See generally State v. Lankford, 29 Del. 594, 102 A. 63 (1917).

This is a case of first impression. This Court in United States v. Stewart, 29 MJ 92, 93 (CMA 1989), affirmed a guilty plea for aggravated assault where a soldier infected with the “AIDS virus” wrongfully engaged in sexual intercourse with a female soldier “without using a condom or any other form of barrier protection.” In United States v. Johnson, supra, this Court affirmed a contested finding of guilty to aggravated assault where the infected soldier did not disclose his disease and did not use a condom. 30 MJ at 55. Judge Cox, writing for the Court, anticipated appellant’s case in footnote 8 of that decision, stating:

This leaves open a question as to what offense, if any, appellant would have been guilty of if he had worn a condom throughout, though still not informing JPH of his infection, thereby arguably not attempting conduct which would have subjected JPH to the risk of contracting the AIDS virus.

The majority opinion herein expressly confronts two issues which arise under Ar-*398tide 128 as a result of the evidence that a condom was used. First, does this evidence somehow preclude a finding that appellant’s act of sexual intercourse constituted a substantial step towards or the commission of “bodily harm” on Private W? Second, does this evidence somehow preclude a finding that his act of sexual intercourse was a “means or force likely to produce death or grievous bodily harm”? I agree with its resolution of these questions. My concern, however, is whether evidence that a condom was used precludes a finding that appellant had the requisite criminal intent for conviction of aggravated assault under Article 128(b)(1).1

At a judge-alone trial, appellant was found guilty of aggravated assault, in violation of Article 128(b)(1). The challenged specification of which appellant was found guilty states:

Specification: In that [appellant] did, at or near San Diego, California, on or about 22 January 1989, commit an assault upon Journalist First Class [W], U.S. Naval Reserve, by unlawfully having sexual intercourse with her, a means likely to produce death or grievous bodily harm because, as the said JOS Joseph then full well knew, his seminal fluid contained a potentially deadly virus (Human Immunodeficiency Virus) which was capable of being transmitted by sexual intercourse, and which rendered sexual intercourse inherently dangerous, any apparent consent on the part of the said JOl [W] being nullified by the fact that the said J02 Joseph failed to inform her that he was carrying such a virus.

(Emphasis added.)

My starting point in answering the requisite intent question concerning this specification is Article 128 of the Code. It states:

(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct.
(b) Any person subject to this chapter who—
(1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or
(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon;
is guilty of aggravated assault and shall be punished as a court-martial may direct.

(Emphasis added.)

This Court has recognized three theories for conviction of the predicate offense of simple assault under this statute: First, there is the attempted battery theory, i.e., an assault is an attempt to do bodily harm with unlawful force or violence accompanied by an intent to do bodily harm. See United States v. Norton, 1 USCMA at 413, 4 CMR at 5. Second, there is the threatened battery theory, i.e., an assault is an offer to do bodily harm with unlawful force or violence accompanied by an intent to threaten bodily harm. Id. Finally, there is the intentional or culpably negligent battery theory,2 i.e., an assault is the inten*399tional doing of bodily harm or the negligent doing of bodily harm accompanied by a culpable disregard for the foreseeable consequences to others. See United States v. Redding, 14 USCMA at 244-45, 34 CMR at 24-25; see also United States v. Masel, 563 F.2d 322 (7th Cir.1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1496, 55 L.Ed.2d 523 (1978). See generally R. Perkins and R. Boyce, Criminal Law 173-77 (3d ed.1982).3

Turning to the record in this case, I note that trial counsel labeled his theory of criminal liability under Article 128 as a battery but articulated it in terms of culpably negligent conduct.4 Basically, he argued that appellant committed a battery upon Petty Officer W by engaging in sexual intercourse with her without securing her informed consent. He evidenced the fact that appellant tested positive for HIV; that appellant was apprised of his medical condi*400tion by naval personnel; and that he was counseled on its deadly potential for himself and others. In particular, evidence was admitted that appellant was told that it was important to inform all his future sexual partners of his condition and that sex with a condom was not absolutely safe. Finally, the Government evidenced that appellant failed to disclose to Petty Officer W that he was infected with HIV; that this deadly virus could be communicated to her with or without a condom; that the condom ripped; and that his sex partner later tested positive for HIV.

The above evidence and argument suggests appellant’s conviction for assault was on the basis of a theory of negligent battery. The fact that a condom was used and evidence of appellant’s belief that he was engaging in safe sex was some evidence that appellant did not have an intent or purpose to do bodily harm, i.e., expose her to the virus. However, as noted above, our case law does not necessarily require an intent to do bodily harm for conviction of assault or aggravated assault under Article 128. See United States v. Redding, supra.5 Accordingly, it is to the third theory of assault that I turn.

The proof, noted above, was some evidence from which a rational factfinder could reasonably find or infer beyond a reasonable doubt that appellant committed a culpably negligent battery under Article 128. In this regard, I note that it is well established that it is a negligent act for a person with a communicable disease to engage in sexual intercourse without disclosing that medical condition to the partner. See United States v. Dumford, 30 MJ 137, 138 n.2 (CMA), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). See generally Mussivand v. David, 45 Ohio St.3d 314, 544 N.E.2d 265, 269 (1989); Berner v. Caldwell, 543 So.2d 686, 688-89 (Ala.1989); B.N. v. K.K., 312 Md. 135, 538 A.2d 1175, 1179 (1988); R.A.P. v. B.J.P., 428 N.W.2d 103, 108 (Minn.App.1988). Moreover, evidence was introduced that appellant was aware of the potential for communicating his infection by sexual intercourse both with or without a condom and the deadly consequence thereof. Cf. United States v. Redding, 14 USCMA at 245, 34 CMR at 25. Finally, bodily harm in the form of direct exposure to HIV was evidenced by the ripped condom and the victim’s positive testing for HIV. Id. Accordingly, there was some evidence in this case that appellant committed an assault under the culpably-negligent-battery theory.

Of course, the evidence in this case also reasonably supports an alternative finding that appellant committed an assault under the “attempt” theory of Article 128 by attempting to expose his sex partner to HIV. See generally United States v. Johnson, supra. First, an attempted assault requires an overt act amounting to more than mere preparation which tended to effect bodily harm. Evidence was admitted in this case that appellant and Petty Officer W engaged in sexual intercourse *401with a condom and that direct, albeit limited, exposure to HIV could be accomplished by this act. Second, this type of assault also requires proof that the accused intended to do bodily harm with unlawful force or violence. Here, evidence was admitted that appellant, who knew that he carried HIV and that it could be spread by sexual intercourse, initially wanted to engage in sexual intercourse with Petty Officer W without a condom but desisted only on her refusal. In addition, evidence was admitted that he used a condom with knowledge that it was not 100% effective in preventing contraction of HIV. He at no time disclosed either his medical condition or his knowledge of a condom’s lack of total effectiveness against it to Petty Officer W. Viewed in its entirety, this was some evidence from which a reasonable factfinder could find that appellant intended to expose his sex partner to HIV. See generally W. Clark and W. Marshall, A Treatise on the Law of Crimes § 214 at 265 (4th ed.1940), citing, inter alia, State v. Lankford, 29 Del. 594, 102 A. 63 (1917).6

An additional problem arises in this case with respect to the victim’s purported consent to sexual intercourse with appellant if he used a condom. Since appellant did use a condom, it was argued at trial that he did not use unlawful force or violence when he engaged in protected sex with Petty Officer W. See United States v. Singletary, 14 USCMA 146, 149, 33 CMR 358, 361 (1963). See generally Guarro v. United States, 237 F.2d 578 (D.C.Cir.1956). However, it was clearly established at this court-martial that appellant did not disclose his medical condition of being infected with the HIV virus and that he knew a condom was not absolutely effective in preventing the transmission of this disease. These are material facts whose withholding vitiates consent or would permit a factfinder to so find. See United States v. Dumford, 28 MJ 836, 839 (AFCMR 1989), aff'd 30 MJ 137 (CMA), cert. denied, 498 U.S. 854, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990). See generally Clark and Marshall, supra.

Finally, I note that the per se condom rule proffered by appellant must be rejected. As noted by Judge Cox, there is simply no evidence in this ease that a condom absolutely prevents contraction of HIV. Moreover, no other scientific or legal authority has been presented to this Court to establish the invincibility of this method of protection. In fact the evidence of record, as noted by the Court of Military Review, uncontrovertedly established that some risk of exposure, although less than unprotected sex, still existed. Accordingly, in light of United States v. Johnson, 30 MJ at 57, the question of law before us is whether the risk-of-exposure-to-HIV evidence in this case was “at least ... more than merely a fanciful, speculative or remote possibility.” I agree with Judge Cox that the medical evidence in this case met this standard and that the members could lawfully decide whether the means of sexual intercourse was “likely to produce ... grievous bodily harm.”

. The majority opinion does not separately address the intent requirement for conviction of assault consummated by a battery under Article 128(b)(1), Uniform Code of Military Justice, 10 USC § 928(b)(1). Instead, it implies that proof of a deliberate offensive touching (i.e., sexual intercourse without disclosing the known presence of HIV), necessarily proves the requisite intent for assault under Article 128. I think it is more helpful to particularly consider the intent issue in this case in terms of an intent to do or offer bodily harm.

. Article 128 does not contain the word “battery.” However, this Court has repeatedly interpreted the language of this statute to include the prohibition of "assault and battery.” See United States v. Torres-Diaz, 15 USCMA 472, 35 CMR 444 (1965); United States v. Mayville, 15 USCMA 420, 35 CMR 392 (1965); United States v. Redding, 14 USCMA 242, 34 CMR 22 (1963); United States v. Singletary, 14 USCMA 146, 150, 33 CMR 358, 362 (1963). See § 211.1(l)(a) and (b), ALI Model Penal Code, reprinted in ALI Model Penal Code and Commentaries (Part II) 173 (1980), which includes intentional, reckless, or culpably negligent batteries within simple as*399sault. I also note that this interpretation of our assault statute is not at all unusual. See Perkins, An Analysis of Assault and Attempts to Assault, 47 Minn.L.Rev. 71, 91 (1962):

Also, because terms used in criminal definitions are not always limited to their literal meanings, courts sometimes have interpreted “assault,” which is an intentional act, to include both an assault and a battery, even though the battery may be an unintentional act, such as an act of criminal negligence. This process has given rise to the age-old assertion that "every battery includes an assault.”

See also Fish v. Michigan, 62 F.2d 659 (6th Cir.1933); Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862 (1893); cf. State v. Anania, 340 A.2d 207, 210 (Me.1975).

. The legislative history of this provision indicates that it is derived from Article of War (AW) 93 and § 48, Naval Courts and Boards (1937). See Hearings on H.R. 2498 Before a Subcomm. of the House Armed Services Comm., 81st Cong., 1st Sess. 1233-34 (1949), reprinted in Index and Legislative History, Uniform Code of Military Justice (1950).

Paragraph 180k, Manual for Courts-Martial, U.S. Army, 1949, construing the term assault in AW 93, states:

The intent to do bodily harm may consist of culpable negligence in doing an act which causes personal injury to another or which puts another in reasonable fear of bodily injury. See 180a (Manslaughter) for discussion of culpable negligence.

1949 Manual, supra at 245.

Moreover, later in discussing battery that paragraph of the Manual goes on to state: If the injury is inflicted unintentionally and without culpable negligence, the offense is not committed.

Id. at 246.

. TC: Your Honor, clearly what we have from the 22d of November [to] January 1989 is a battery. As a bare minimum, Petty Officer Joseph had sexual intercourse with [W] without getting an informed consent. He touched her without telling her what he was touching her with. He never told her he was HIV positive, never told her of the risks. He never discussed with her at all the inherent danger in terms of having sexual intercourse with a person who’s HIV positive. He risked her. He risked transmitting the disease to her.

[W] says that when he withdrew, the condom was broken. Petty Officer Joseph says it wasn’t. Your Honor, that difference doesn’t matter because effectively what John Joseph did was put a safety on and risked that it was going to fail. He risked that the result of his action was going to be infecting [W], It’s no different than if he took a gun that was loaded and pointed it at her chest, put the safety on, and just for the sheer pleasure of pulling the trigger, pulled the trigger. If the gun fired that’s an aggravated assault. It doesn't matter that the statistical probability of that safety failing is that low. It can be nonexistent almost. But once the safety fails, it’s an aggravated assault, if not beyond.

What we have here is a safety that failed and an aggravated assault.

These products will probably be regarded as useful for people who feel that sex is important, but should not be considered as a guarantee. But that’s what he considered it; as a guarantee that he wasn't going to injure his sex partner. But that's not the issue. It’s not what he thought as to whether or not he acted recklessly. First he tried to have sex with her without even using a condom. Then once he used a condom, it failed. He never told his partner and he tried to reinitiate sex after they had stopped. That conduct is reckless. That indicates that he just didn’t care about his partner, didn’t care what risks he was inflicting upon her, and the risk is death or grievous bodily harm in the terms of the law, the real risk is AIDS.

We are not talking about hysteria. We’re talking about the present ability to inflict an injury and the use of that present ability.

The accused had sexual intercourse with [W] while he was infected with the HIV virus and that is sufficient to reach a finding of guilty to aggravated assault and we would ask that you do that.

[ (Emphasis added.) ]

. W. Clark and W. Marshall, A Treatise on the Law of Crimes § 191 at 242 (4th ed.1940), describes an assault as "an attempt or offer, with unlawful force or violence, to do a corporal hurt to another," and battery as "the actual doing of any unlawful corporal hurt, however slight, to another.”

The question of culpable negligence substituting for an intent when bodily harm is done is treated as follows:

§ 197. Accident. — To render one guilty of criminal assault and battery, a criminal intent, or what is equivalent thereto, is necessary. If an injury is inflicted upon another by accident in the doing of a lawful act without culpable negligence, an indictment for assault and battery will not lie.
§ 198. Negligence. — A person who inflicts corporal injury upon another by culpable negligence in doing a lawful act may certainly be guilty of assault and battery for the purpose of a civil action to recover damages. It has been said that he is not liable to indictment, but this is very doubtful.
While there is very little authority on the question, there seems to be no good reason to doubt that a person may be guilty of criminal assault and battery if he intentionally does an act which, by reason of its wanton and grossly negligent character, exposes another to personal injury, and does in fact cause such injury. Throwing a stone in sport and striking another is an assault and battery.

Clark and Marshall, supra at 249-50 (footnotes omitted).

. This legal treatise recognizes a “difference of opinion as to whether a man who has intercourse with a woman with her consent, and communicates a venereal disease, is guilty of an assault because of her ignorance of the fact that he is diseased.” It distinguished the case holding no assault on the basis of the status of the victim as the defendant's wife. Clark and Marshall, supra, § 214 at 265 n. 143.