WICHITA, Kansas -- A lawyer for an Air Force officer accused of having unprotected sex with multiple partners without telling them he's HIV positive told a military judge Tuesday that recent scientific research shows such action doesn't amount to aggravated assault.
The opening statement by one of Tech. Sgt. David Gutierrez's military lawyers offered a first glimpse at the strategy the defense will employ. Court martial proceedings are being held at McConnell Air Force Base in Wichita where he is stationed with the 22nd Maintenance Operations Squadron. He has been under arrest at the base since Aug. 9.
Gutierrez is charged with 10 counts of aggravated assault -- one count for each sexual partner -- and with violating his squadron commander's order to notify his sexual partners about his HIV status and to use condoms. He also has been charged with multiple indecent acts for having sex in front of others. He also was charged with nine counts of adultery.
Gutierrez pleaded not guilty to all charges in a case being heard without a jury before military judge, Lt. Col William Muldoon. The judge rejected a defense attorney's request at the start of the proceedings to dismiss aggravated assault charges as unconstitutional because similar case law on aggravated assault in effect says his client can't ever have sex again.
Capt. Sam Kidd, who is prosecuting the case, contended the government has a legitimate, if not compelling interest, to protect the community from service members spreading a life-threatening disease. He said in his opening statement that Gutierrez engaged in unprotected sex despite being counseled about the risks and ordered by his commander to inform sexual partners of his HIV status.
A Topeka woman testified Tuesday that she had unprotected sex with the airman during a toga party, at a camping trip and at his house.
She said Gutierrez's wife participated in the swinger lifestyle.
"She was talking about opening a bed-and-breakfast for swingers," she said. "She was all for it."
The woman said she asked Gutierrez if he had any sexually transmitted diseases and he assured her he "was clean." She said she would not have had sex with him had she known he had HIV.
"I watched a brother die of AIDS," she said. "It wouldn't have happened."
Two other women, one from Stillwater, Okla., and another from Wichita, also testified about their sexual encounters with Gutierrez. They also said he didn't tell them he was HIV positive and that they wouldn't have had sex with him had they known. None of the women tested positive for HIV.
His commander, Maj. Christopher Hague, testified Tuesday that he gave Gutierrez a written order in October 2009 requiring him to use condoms and to notify his sexual partners of his HIV status before engaging in sex.
Special Agent Richard Toth, of the Air Force Office of Special Investigations at McConnell, testified that military authorities found out about Gutierrez's sexual activities through numerous interviews with his wife.
Under military law, Gutierrez could face more than 53 years in prison if convicted on all charges. Other penalties include a dishonorable discharge, forfeiture of pay and reduction in rank.
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