A 28-year-old San Diego sailor was convicted of aggravated assault in military court Tuesday for infecting a former Navy woman with AIDS-causing virus when they had sex and he neglected to tell her he was a carrier of the virus.
Although military personnel have been charged with aggravated assault in similar AIDS-virus transmission cases in the past, this is the first such case in military court where an individual was successfully prosecuted when he used a condom--engaging in what has been considered a safe sex practice.
Petty Officer John Joseph was sentenced to 30 months in jail, forfeiture of pay and a dishonorable discharge in the incident. The trial took place at the 32nd Street Naval station. Because of a pretrial agreement, however, Joseph will serve no more than six months in the brig, as long as he breaks no rules while in jail.
"My life will never heal," said the 37-year-old San Diego resident who alleged that Joseph had infected her. The woman, a member of the Naval Reserve, said she was afraid for her future. "It's like somebody has a hatchet over my head, and I don't know when it's going to swing."
In testimony, military doctors discussed whether Joseph could have infected the woman when both adults acknowledged that he did not ejaculate during intercourse. It is not yet known whether pre-ejaculate fluid contains human immunodeficiency virus (HIV) that causes AIDS. Military doctors tried to evaluate the statistical odds of a woman becoming infected during a single sexual encounter with an infected man who used a condom.
The case was further complicated by varying accounts of what had occurred on Jan. 22, 1989. The woman alleged they had used a condom and that it broke; Joseph testified that the condom did not break. She said the condom was dry; he said it contained nonoxynol 9, a chemical doctors believe may help reduce the spread of HIV.
She testified that, in March, 1989, she had begun to feel poorly and called Joseph to find out if he had any contagious diseases that might have been transmitted. In this conversation, she alleged, he said that he felt fine.
Three months later, when she had her annual physical, the woman learned that she had tested positive for HIV. Stunned, she had a retest at another facility. Last July, she alleged, she told Joseph that she had tested positive; he still said nothing about his condition--which had been identified more than a year earlier, in June, 1988.
"It's very, very cruel. It's too ugly an act," said the woman in an interview. "If it were just gonorrhea, I could just get a shot. If I had known, I would never have gotten involved with him." She said she is considering suing Joseph in civil court.
AIDS, or the HIV, is contracted through the exchange of bodily fluids that can occur from the use of intravenous drugs, blood transfusions or during sexual intercourse. In testimony, the woman swore that she had never used drugs or had a blood transfusion. She also said that she had not been sexually involved with anyone for at least a year before her involvement with Joseph.
As a Naval reservist for eight years, she has been tested for AIDS every year since the Navy began testing.
At the conclusion of the court-martial, Joseph, a 10-year enlistee who works on the Navy magazine All Hands, sobbed and said that he was sorry. "I never intended to hurt her," he said. "I am not a bad person."
Asking Cmdr. Tim S. McClain, the presiding judge, to avoid acting out of "AIDS hysteria," Joseph's attorney, Lt. Marcella Auclair, said that her client, a caring man with an unsullied Naval record, did not deserve the assault charges because his crime was only that he didn't inform his sex partner.
"Petty Officer Joseph was wrong not to have told her, and perhaps he was wrong for putting so much faith in condoms and the medical community," said Auclair. "He believed that if he used a condom with nonoxynol 9, it was safe."
Prosecutor Lt. Mark Newcomb painted a different picture of a man who risked a woman's life for "basic sexual pleasure."
He likened the episode to an individual pointing a gun at someone and pulling the trigger--knowing that the safety is on. When the safety fails, it is still an aggravated assault, he maintained.
"What we are talking about with this aggravated assault is not a blow to the body, a maiming--this is a death," Newcomb said. "Her life expectancy has been shortened dramatically."
The case is the first military case involving heterosexual AIDS-virus transmission in San Diego. Last year, a Navy medical corpsman was acquitted of sodomy and misconduct charges in connection with infecting another man.
But experts say more and more AIDS-related cases are entering military courts. In three such cases that resulted in conviction, the charges were also assault. In most cases, however, an individual is charged with violating an order, since infected military personnel are ordered to inform their sex partners of their condition, as well as to use a condom.
The Air Force began issuing the order on a standardized form in late 1985; the Army began in February, 1986. The Navy, however, did not begin issuing the order until last year--eliminating this possible avenue of prosecution for Joseph. Though Joseph received counseling about his condition and how to prevent virus transmission, he had never signed an order.
There are now 2,069 active duty members of the armed forces who have tested positive for the virus that causes acquired immune deficiency syndrome. According to a recent study, the military will pay $157,000 to $208,000 for care of each infected individual. Joseph, who was sentenced to a dishonorable discharge, will probably not qualify for military medical care, said Auclair.
The court-martial also involved minor offenses, including Joseph's misuse of a Navy car and his pawning of two Navy cameras.