U.S. v. Forbes, 78 M.J. 279

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge did not abuse her discretion in accepting appellant’s guilty pleas to sexual assault by bodily harm through failing to inform his sexual partners he was HIV positive where appellant admitted that he failed to inform his victims of his HIV-positive status, thereby depriving them of the ability to provide meaningful, informed consent to sexual intercourse

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Pre-2019 offenses › (b) Sexual Assault

1. the elements of sexual assault by bodily harm are (1) that the accused committed a sexual act upon another person by causing penetration, however slight, of the vulva or anus or mouth by the penis; and (ii) that he did so by causing bodily harm to that other person; bodily harm is defined as any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact; consent is defined as a freely given agreement to the conduct at issue by a competent person; to be freely given, consent must be informed
2. failure to disclose one’s HIV-positive status before engaging in sexual activity constitutes an offensive touching, including offensive touching constituting bodily harm for assault offenses; and informed consent can convert what might otherwise be an offensive touching into a non-offensive touching
3. in this case, appellant’s pleas to sexual assault by bodily harm through failing to inform his sexual partners he was HIV positive were provident; consistent with Article 120(b)(1)(B), UCMJ, appellant committed a sexual assault each time he had sexual intercourse with one of the victims without first informing her of his HIV status and thereby lawfully obtaining her consent to the intercourse; it was the failure to inform the victims of the HIV-positive status that vitiated meaningful consent and caused the touching to be offensive; true consent must be informed

Trial Stages: Merits: Guilty Pleas

1. during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion, and the test for an abuse of discretion in accepting a guilty plea is whether the record shows a substantial basis in law or fact for questioning the plea

Trial Stages: Appeals: Waiver

1. a guilty plea does not waive review of whether a plea was provident