(NaturalNews) Overturning a 25-year precedent in the U.S. military that allowed active servicemen to be convicted of aggravated assault solely based on tests suggesting an HIV-positive health status, a military court has ruled that the evidence used in the aggravated assault conviction of Air Force Sergeant David Gutierrez was "legally insufficient."

Thanks to the efforts of the Office of Science and Medical Justice (OMSJ) in pursing the case on behalf of the many military servicemen who have been convicted of aggravated assault simply for testing HIV-positive, the Court of Appeals for the Armed Forces (CAAF) unanimously ruled that the evidence provided in the case was not valid. As a result, Gutierrez' prison sentence will be shortened.

In its opinion, the CAAF decided that the question in the case was not one of whether HIV, if contracted, is likely to cause grievous bodily harm, but rather whether the risk associated with HIV transmission from an HIV-positive person is "likely" to produce death or grievous bodily harm.

Based on expert testimony presented by OMSJ, establishing that the likelihood of heterosexual HIV transmission is close to non-existent, Gutierrez has been vindicated of the charges brought against him simply due to his HIV-positive status.

"This is a game changer for military cases and HIV testing," stated Kevin McDermott, Gutierrez' attorney.

Military medical expert affirms that HIV transmission risk from heterosexuals is 'unlikely to occur'

The real kicker in this decision pertains to the transmission potential of HIV from a heterosexual person, which is assumed by some to be the same as the transmission potential from a homosexual person. Based on the evidence presented in the appeal, heterosexual transmission risk is simply not a significant threat, at least in the court's opinion.

Speaking in support of OMSJ's position, a U.S. military medical expert admitted that HIV transmission from heterosexuals is "unlikely to occur when there is only a 1-in-500 chance of occurrence."

A 2005 study published in the journal Sexually Transmitted Infections came to a similar conclusion after observing significantly higher rates of HIV/AIDS among gay men as opposed to straight men and women, even when both types of people engaged in the same amounts of "unprotected" sex with various sexual partners.

This particular study found that straight individuals would have to have almost three times the amount of unprotected sex as gay men to experience the same rates of HIV infection.

Concerning Gutierrez' original eight-year prison sentence, for which he has already served five years, his lawyer contends that the military now has two reasons to reduce that sentence.

"First, all of the HIV aggravated assault convictions have been tossed out," McDermott stated. "Second, CAAF has also ruled that the Air Force took too long to get David's case to the court on appeal."

There's also the question of the validity of HIV testing in the first place, which OMSJ contends is often "in error," including in Gutierrez' case. Should a rehearing of the case take place before a trial court, OMSJ intends to have its medical and scientific experts contest Gutierrez' original HIV diagnosis, as well as challenge the military's HIV testing protocol.

"Without OMSJ's efforts, the results in this case could not have been possible," added McDermott about the success of the case.

Sources:

http://www.robertscottbell.com

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