Airman Gets 8 Years in Prison in HIV Exposure Case
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Roxana Hegeman
APWICHITA, Kan. – An Air Force sergeant convicted of exposing multiple sex partners to HIV at swinger parties was sentenced Wednesday to eight years in military prison and will be dishonorably discharged after serving his time.
A court martial judge earlier found Tech. Sgt. David Gutierrez guilty on seven of eight counts of aggravated assault and violating his commander's order to notify partners about his HIV status and use condoms. The judge also convicted Gutierrez of indecent acts for having sex in front of others and eight counts of adultery.
The judge, Lt. Col. William Muldoon, delivered the sentence after a brief hearing, during which Gutierrez had begged between sobs not to be discharged so he could keep the military medical benefits he will now lose. Gutierrez also will be reduced to the lowest enlistment rank while serving out his military confinement.
Before he was sentenced, Gutierrez told Muldoon that he was willing to spend more time in jail rather than lose his medical benefits he needs.
"The possibility of a future without assistance does scare me - scares me to the core," he tearfully said. "The cost of medicine is very expensive and I don't know if I can afford it."
Gutierrez, 43, apologized to the court, the Air Force, his family and his sexual partners. He said he thanks God every day none of his partners contracted the disease and asked the judge to have mercy on him so he can live to see his two children graduate from college and get married.
Prosecutors had argued Gutierrez played Russian roulette with his sexual partners' lives.
"The accused was not thinking about how his victims would pay for their medications," Capt. Sam Kidd said.
Defense attorneys asked for imprisonment in the "single digits" and pleaded with the judge not to impose the punitive discharge that would strip his benefits.
"He is looking at his own mortality as he looks down the road," said defense attorney Maj. James Dorman.
Dr. Donna Sweet testified Wednesday that the cost of HIV medication typically runs between $1,700 and $1,800 a month, and HIV infected patients on average spend between $28,000 and $30,000 annually for their medical care.
Without medical care, infected patients usually die within 10 years, she said. But with proper care and mediation, a 20-year-old person who contracts HIV can easily expect to live to age 70.
A Wichita woman who said she has lived a swinger lifestyle for six years returned to the stand during Gutierrez's sentencing hearing to give a victim impact statement, saying she found out from news reports about the case that she had been exposed to HIV.
"Actually I started crying," she said. "I was kind of mortified."
Several people who participated in swinger and partner-swapping events with Gutierrez and his wife testified this week that they never would have had sex with him had he told them he was HIV-positive.
Gutierrez repeatedly denied that he was infected, and he was encouraged by his wife to carry on with swinger events, several witnesses testified during the airman's court martial at McConnell Air Force Base in Wichita.
Gutierrez originally was charged with 10 counts of aggravated assault and with violating his squadron commander's order to notify partners about his HIV status and use condoms. The judge granted a prosecution request Wednesday to drop two of the assault charges and one of the adultery charges.
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Let's ignore the HIV part of this story for the moment.
The judge also convicted Gutierrez of indecent acts for having sex in front of others and eight counts of adultery.
The US military is extremely prudish in it's rules any type of sex, so I wonder how this will play into the repeal of DADT.
The only legal sex according to the UCMJ is between married heteros and in the "missionary position". The "missionary position" only rule means gays can be prosecuted for having any form of sex.
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Very bizarre. Especially being charged with adultery, when his wife was also a 'swinger'
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Under the UCMJ, the fact that it's consensual doesn't mean diddly squat.
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The testimony of a swinder who is shocked to have been exposed to HIV is ridiculous.
What about safe sex? Are swingers supposed by definition to be casual partners, hence not to be trusted as far as stds are concerned?
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Let's ignore the HIV part of this story for the moment.
The judge also convicted Gutierrez of indecent acts for having sex in front of others and eight counts of adultery.
The US military is extremely prudish in it's rules any type of sex, so I wonder how this will play into the repeal of DADT.
The only legal sex according to the UCMJ is between married heteros and in the "missionary position". The "missionary position" only rule means gays can be prosecuted for having any form of sex.
Actually, in 2003, the U.S. Supreme Court struck down all sodomy laws through their ruling in Lawrence vs. Texas. This barred any state from being able to legislatively ban any type of sexual activity between two consenting adults. Although the U.S. military has a distinct legislative and judicial organization under the President, the highest military court, the U.S. Court of Appeals for the Armed Forces, remains subject to the U.S. Supreme Court. Accordingly, the military appeals court formally recognized this decision as invalidating relevant aspects of the UCMJ.
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I don't believe that the US military, even after Lawrence v Taylor, changed it's rules on gay sex, prior to the repeal of DADT.
