In late December 2006, a military appeals court reduced the penalty given to an HIV+ male Coast Guard officer who had unprotected vaginal intercourse with a woman who did not know his HIV status.

    Lt. Christopher Upham was found to be HIV+ in 1998. He has been receiving antiretroviral therapy, resulting in a very low but not undetectable viral load count. He was counseled about the need to use condoms to avoid transmitting HIV. In the early morning hours of October 7, 2003, he twice engaged in intercourse with a woman without using a condom or disclosing his HIV status.

    …snip…
    Upham pled guilty to one count of conduct unbecoming an officer in violation of Art. 133, but refused to plead guilty to the count of committing an aggravated assault in violation of Art. 128. His position was that the sex was consensual and that the risk of transmission was small enough that he need not have used a condom or disclosed his HIV status.

The appeals court disagreed with an earlier ruling from a military judge stating that “a person who willfully and deliberately exposes a person to seminal fluid containing HIV without informing that person of his HIV positive status and without using a condom has acted in a manner likely to produce death or grievous bodily injury” after hearing testimony on the likelihood of Upham transmitting HIV via unprotected, non-violent vaginal intercourse.

Read more details of U.S. v. Upham in “Military Appeals Court Reduces Penalty for Unprotected Vaginal Intercourse” on page 16 of the January edition of the Lesbian/Gay Law Notes.