## Facts

- Michael M.A. Bygrave, a U.S. Navy servicemember, tested positive for HIV in 1986 and was counseled about transmission risks and safe-sex practices.
- He engaged in sexual intercourse with Petty Officer J for about a year, including unprotected sex, without disclosing his HIV status; J later tested positive for HIV.
- Beginning in 1990, Bygrave disclosed his HIV status to Boatswain’s Mate Third Class C before sexual relations.
- Bygrave and C engaged in consensual intercourse regularly, using condoms on most but not all occasions; C later tested positive for HIV and subsequently married Bygrave.
- Bygrave was tried by general court-martial and convicted of two specifications of aggravated assault (assault with a means likely to cause death or grievous bodily harm) under Article 128(b)(1), UCMJ, based on each relationship.
- On appeal, review focused on the specification involving C, where the sexual partner had actual knowledge of Bygrave’s HIV status and consented to intercourse.

## Issues

1. Whether a conviction for aggravated assault under Article 128(b)(1), UCMJ, can stand when the sexual partner had actual knowledge of the accused’s HIV-positive status and consented to intercourse, including unprotected intercourse.
2. Whether imposing criminal liability in that circumstance violates a constitutional right to private, consensual sexual intercourse.

## Decision

- The court affirmed the conviction and sentence.
- It held that informed consent by the sexual partner was not a valid defense to aggravated assault where the accused knowingly exposed the partner to HIV through unprotected intercourse, a means likely to cause death or grievous bodily harm.
- Assuming without deciding that a constitutional privacy right to private consensual heterosexual intercourse exists, the court held the Government’s compelling interests in preventing HIV transmission and maintaining military readiness justified the prohibition and conviction.

## Legal Principles

- Consent generally is not a defense to aggravated assault under Article 128(b)(1), UCMJ, when the means used are likely to cause death or grievous bodily harm.
- Unprotected sexual intercourse by a person known to be HIV-positive may constitute use of a means likely to cause death or grievous bodily harm for purposes of aggravated assault.
- Even if private consensual sexual conduct receives constitutional protection, regulation may be upheld when justified by sufficiently compelling governmental interests; in the military setting, preventing HIV spread and preserving readiness can satisfy that standard.

## Conclusion

The court sustained an HIV-based aggravated-assault conviction despite the partner’s informed consent, concluding that exposing another to HIV through unprotected intercourse can satisfy Article 128(b)(1) and that compelling public-health and military-readiness interests justified the resulting restriction and punishment.


United States v. Bygrave, 46 M.J. 491 (C.A.A.F. 1997)