In a first for the military court system, the U.S. Court of Appeals for the Armed Forces upheld a conviction of sexual assault for a sailor who engaged in consensual sex with four women but failed to disclose that he was HIV-positive.
The appellate court last week affirmed an earlier ruling in the case, U.S. v. Forbes. The women could not provide "meaningful, informed consent" to have sex with the sailor, Aviation Maintenance Administrationman 2nd Class Lamar Forbes, because they didn't have all the facts before consenting, the court found. Thereby, the government argued, they were sexually assaulted.
Previous military convictions for failing to disclose a positive HIV status have been for aggravated assault, failure to obey a lawful order requiring disclosure, or a lesser charge.
Following an investigation by the Naval Criminal Investigative Service in 2015, Forbes pleaded guilty to the charges and was sentenced to eight years of confinement, rank reduction to E-1 and a dishonorable discharge. He later appealed the conviction based on arguments that the sentencing was unduly harsh, and that the military judge in the original case accepted his guilty plea without explaining the nuances of a sexual assault charge under Article 120 of the Uniform Code of Military Justice, according to Forbes' attorney, Robert Feldmeier.
Feldmeier said that Article 120 was never intended to make the "fraud of inducement" -- the lies people might tell before they engage in consensual sex, such as neglecting to inform someone of birth control status, marital status, sexually transmitted diseases, etc. -- a basis for a sexual assault charge.
"[Forbes] did not misrepresent who he was or lie in any way about the sexual nature of the physical acts in which he engaged with the purported victims. He therefore did not commit [the type of] fraud [required for a sexual assault conviction, 'fraud of factum,']" Feldmeier said.
Forbes tested positive for HIV in 2012 and was counseled to advise prospective partners that he was HIV-positive. Feldmeier said his client was on antiviral medications at the time of the sexual relationships addressed in the suit, and that his viral load at the time was "barely detectable."
"He posed no transmission risk," Feldmeier said in an interview with Military.com.
In its ruling, the Navy-Marine Corps Court of Criminal Appeals noted that one of Forbes' victims had discussed getting tested but had been assured by him that "he was clean." Another victim told Forbes that she was taking medication that weakened her immune system because she had recently had a kidney transplant. But according to the court, the appellant "assured her that he 'wouldn't do anything to jeopardize that.'"
"These two situations betray the callousness and deceit of the appellant and are particularly aggravating," wrote Navy Cmdr. Heather Partridge, NMCCCA judge. "Additionally, the appellant brazenly continue to have frequent, unprotected sexual intercourse with the two women despite knowing he was actively being investigated by NCIS."
Forbes has the option of appealing his conviction to the U.S. Supreme Court, a strong possibility as the ruling marks a first for the military court system, or what Partridge described as a "case of first impression."
"Neither the parties nor we have identified a precedent for convicting a service member of sexual assault for failing to inform a sexual partner of his HIV status before engaging in an otherwise consensual sexual act," Partridge wrote. "That is not to say, however, that conduct such as the appellant's has gone unpunished in the military; there is much precedent for convicting service members for similar conduct."
Whether Forbes will appeal, however, attorney Feldmeier couldn't say as of Friday.
"My client is confined and I haven't been able to reach him as of yet," Feldmeier said.
Forbes has now served more than three years of his eight-year sentence.
-- Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter @patriciakime.