Military appeals court to hear Kansas HIV appeal

By ROXANA HEGEMAN | August 11, 2014 | 7:34 PM EDT

File-In this Wednesday, Jan. 19, 2011, file photo, Air Force Sgt. David Gutierrez walks out of the Law Center at McConnell Air Force Base in Wichita, Kan., during a lunch recess. The highest U.S. armed forces court has agreed to review the appeal of the Kansas airman convicted of assault for exposing multiple sex partners to HIV at swinger parties in Wichita. (AP Photo/Jeff Tuttle, File)

WICHITA, Kan. (AP) — The nation's highest military court has agreed to review the evidence used to convict a Kansas airman of aggravated assault for exposing multiple sex partners to HIV at swinger parties in Wichita, an appeal the defense contends could potentially remap HIV testing and prosecution in the U.S. military.

The attorney for David Gutierrez said Monday that the Court of Appeals for the Armed Forces is expected to hear arguments sometime later this year.

The court will also consider whether Gutierrez's due process rights were violated because of how long the appeal has taken.

Gutierrez was a sergeant at McConnell Air Force Base when he was sentenced in 2011 to eight years in prison and stripped of his rank for aggravated assault. He was also found guilty of violating his commander's order to notify partners about his HIV status and use condoms. The military judge also convicted Gutierrez of indecent acts for having sex in front of others and adultery.

Prosecutors at his trial had argued Gutierrez played Russian roulette with his sexual partners' lives. Several people who participated in swinger and partner-swapping events with Gutierrez and his wife testified that they never would have had sex with him had he told them he was HIV-positive.

Defense attorney Kevin McDermott said the military's case was based on old attitudes about AIDS and the virus that causes it "and how infectious it was and how much of a death sentence it was at that particular time." The virus isn't as easily transmitted through heterosexual sex as once thought, he said, and people can now live a long time with it.

"Really what this case is hoping to do is to get the Court of Appeals for the Armed Forces and every other military panel up to speed with what is going on with HIV today and to perhaps change those attitudes and mores," McDermott said.