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In February of this year, the CAAF ruled that Air Force Technical Sergeant David
Gutierrez, who was accused of not disclosing his HIV positive status to sexual partners,
was not guilty of Aggravated Assault and reduced charges against him to Assault and
Battery.ii At the time of the alleged sexual contacts, Gutierrez was on antiretroviral
medication, had an undetectable viral load and was not accused of transmitting HIV.
The Sero Project, a national network of people living with HIV, applauds the CAAF for
its rulings in both the Gutierrez case as well as the more recent ruling in the Pinkela
case, but noted the military still is out of step with contemporary science and other arms
of the U.S. government.
While the Centers for Disease Control, the U.S. Congress, the National Institutes of
Health and other government agencies categorize HIV as a chronic manageable illness,
military lawyers and military court decisions still explicitly label HIV as a death
sentence.iii They cant have it both ways. While we applaud CAAFs recent decisions, it
is time for the entire Department of Defense to address HIV for the reality it is today,
based on science not stigma, said Sean Strub, Seros executive director.
The Sero Project called on the U.S. Army to re-evaluate its prosecution against Pinkela,
who also serves as the volunteer director of Seros Military Policy Project. Theres no
rational basis for continuing to prosecute Ken, said Strub.
Pinkelas military legal counsel has accused the Army of inadequately investigating the
charges against Pinkela and of refusing to allow critical evidence to be presented at
trial. Pinkela has volunteered to undergo phylogenetic testing, which could prove the
complaining witness acquired HIV from another party, but the prosecutors declined to
order such a test.iv
In the National Defense Authorization Act (NDAA) of 2014,v Congress included specific
direction to the Secretary of Defense to review and report back to Congress on all HIVrelated personnel and disciplinary policies and procedures, to make sure they are
consistent with contemporary science. That report has not yet been released.
H.R. 1586: Repeal Existing Policies that Encourage and Allow Legal HIV Discrimination
Act of 2015,vi introduced by Rep. Barbara Lee (DCal.) and Rep. Ileana Ros-Lehtinen
(RFla.), seeks to help end the criminalization of HIV by providing guidance to the
states and military to modernize their statutes to make them reflect contemporary
science and not unduly stigmatize people with HIV.
The Sero Project is a network of people with HIV and allies fighting for freedom from
stigma and injustice. Founded in 2012, Sero raises awareness, conducts research and
mobilizes grassroots communities, policy leaders and advocates to address HIV
criminalization.
For more information, visit www.SeroProject.com or email info@seroproject.com
http://www.armfor.uscourts.gov/newcaaf/grants_disp.htm
http://www.caaflog.com/category/september-2014-term/united-states-v-gutierrez-2014/
iii
http://www.caaflog.com/wp-content/uploads/Gutierrez-USCA-13-0522-Answer-to-Petition-for-Reconsideration10-Mar-15.pdf
iv
http://www.nat.org.uk/media%20library/files/pdf%20documents/hiv-forensics.pdf
v
http://www.hivlawandpolicy.org/resources/national-defense-authorization-act-fiscal-year-2014-section-572
vi https://www.govtrack.us/congress/bills/114/hr1586
ii