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Court of Appeals rules HIV not likely to be spread through unprotected sex

In a landmark legal case that has received little attention outside the United States, the highest military court in the US recently overturned decades of judgements regarding the likelihood of spreading HIV through unprotected sex.

In late February, the U.S. Court of Appeals for the Armed Forces (CAAF) unanimously threw out a 2011 conviction against a US airman, Sergeant David Gutierrez of Kansas, for committing “aggravated assault” when exposing multiple sex partners to HIV at swinger parties in Wichita. According to defence attorney Kevin McDermott, the decision reversed a 25-year precedent that had allowed military personnel to be convicted of aggravated assault solely on the basis of a positive HIV test.

The key to the decision was that the convicted airman was not accused of actually infecting anyone with HIV, only of having had sex with them after a positive HIV test, and his conviction was overturned because the US government could not prove that any of his acts were likely to transmit HIV to his partners. The second highest court in America has unanimously rubbished the myth that being found HIV positive makes someone an automatic risk to others.

So said Joan Shenton, London-based author of the recently republished anniversary edition of the book “Positively False – Exposing the Myths around HIV and AIDS”.

Shenton continued: “The US government was unable to prove a likelihood that an HIV person is a risk, even during unprotected sex, because there is no proof. And if the transmission of HIV is now in such doubt, the entire edifice of the infectious hypothesis for AIDS will surely come tumbling down.”

The absence of any definitive medical evidence about HIV transmission was highlighted when defence lawyers argued the risk ranged from a 1-in-10,000 to 1-in-100,000 chance per sexual encounter and prosecutors countered that the exposure risk was closer to 1 in 500. The court determined that even if the risk were 1 in 500, transmission of the disease was not “likely” to occur.

Clark Baker, of the Office of Medical Science and Justice (OMSJ), which was the driving force behind Sergeant Gutierrez’s appeal, said this week:

While gratified that the highest US military court unanimously agrees that HIV does not pose the existential threat claimed by government-funded propagandists, I am sickened by the millions of innocents around the world whose lives have been destroyed by this $400 billion marketing scam to promote unreliable tests to sell deadly HIV drugs.  This ruling is long overdue.

David Crowe, president of Rethinking AIDS, said this week:

HIV is the only disease to be highly criminalized in the modern era. If courts truly believed in ‘beyond a reasonable doubt’, they would not rely on tests that produce false positives that cannot be eliminated, nor on biased analyses that cannot tell the direction of transmission, but do set juries in the direction of conviction. Society talks about privacy of an HIV diagnosis, but then mandates that all HIV+ people reveal their status, unless they want to remain celibate for life while still facing the likelihood of isolation, prejudice and violence if their status becomes public.

Dr Christian Fiala, medical director of the Gynmed clinic in Vienna, added this week:

This ruling confirms what is evident from all epidemiological and medical studies: there is no heterosexual transmission of HIV or any illness labelled as AIDS. This ruling also takes into consideration the fundamental problems and contradictions of the HIV test and the definition of AIDS, which has been changed several times over the last 30 years and which is very different in different countries. Even the manufacturer of the HIV test states ‘At present there is no recognized standard for establishing the presence of absence of antibodies to HIV-1 and HIV-2 in human blood.’  [See Abbott Laboratories Package Insert –  Page 6, under Sensitivity and Specificity.]

It is now up to other courts and governments to recognize the clear evidence and to stop terrorizing those who are labelled HIV positive. ”

Joan Shenton concluded:

For everyone who has long argued that those found HIV positive are not automatically guilty of some heinous crime if they have unprotected sex, this is one of the most significant court judgements in years, particularly as it was a unanimous verdict from the highest military court in the US. Potentially it unlocks the shackles for millions of people worldwide who have been declared HIV positive.

Joan Shenton’s seminal book, “Positively False – Exposing the Myths around HIV and AIDS”, was first published in 1998. The thoroughly updated anniversary edition was launched at London’s Frontline Club in February, together with a new film, Positive Hell. Both are raising the temperature once more on the HIV and AIDS controversy.


Notes for editors

The full ruling by the United States Court of Appeals for the Armed Forces was decided on February 23, 2015, and may be downloaded as a PDF:

Joan Shenton

Joan Shenton has extensive experience of producing and presenting television and radio programmes, including many peak time network documentaries for the BBC, Channel 4, Central TV, and Thames TV.

Her independent production company Meditel Productions has won seven television awards and was the first independent company ever to win a Royal Television Society Award for an episode of Channel 4’s Dispatches. It has produced eight network documentaries for Channel 4, Sky News and M-Net, South Africa on the AIDS debate. “AIDS – The Unheard Voices” won the Royal Television Society Award for Current Affairs.

Her book Positively False – Exposing the Myths around HIV and AIDS was originally published by I.B. Tauris in 1998 and is now not only reprinted but updated, including contributions from 20 leading dissident scientists and journalists, plus Peter Duesberg et al.’s withdrawn 2009 paper for Medical Hypothesis and the script of the film Positively False.

Positively False – Birth of a Heresy, a 90 minute documentary co-produced with director Andi Reiss, was nominated for best documentary at Lucerne and Marbella international film festivals.

David Crowe

David Crowe HSBC (Hons), biology/mathematics, is president of Rethinking AIDS, and founder and president of the Alberta Reappraising AIDS Society.

Clark Baker

Clark Baker is CEO and Principal Investigator at the Office of Medical Science and Justice (OMSJ) and is based in Los Angeles.

Having conducted thousands of criminal and civil investigations since 1980 with the LAPD and as a licensed investigator, Mr. Baker founded OMSJ in 2009 after witnessing the reluctance of government agencies and research centres to investigate allegations related to medical and scientific corruption (aka junk science).

Mr. Baker has earned more than eighty commendations from local, state and federal officials.

Dr Christian Fiala

Christian Fiala is a specialist in obstetrics and gynaecology. He is medical director of the Gynmed clinic in Vienna.

Positively False

POSITIVELY FALSE – Exposing the Myths around HIV and AIDS

16th anniversary edition by Joan Shenton

Print ISBN 9781503030886

Available in paperback and Kindle from Amazon. Visit for links.

For further information, interviews and review copies please contact:

Joan Shenton

Tel: + 44 (0) 20 7727 6301 / + 44 (0) 7957 585 515


Book site:

Film site:


Below is Clark Baker (OMSJ) analysis of the situation (my emphasis in para 3) and below that is our latest press release:

Since the 1980s, the military assumed that the exposure of HIV infection was enough to prove felony assault with a deadly weapon.  In 2008, the Dacus Case (attached) created case law that sexual intercourse with an HIV infection was considered a “dangerous weapon or other means or force likely to produce death or grievous bodily harm.”

Gutierrez changed that – Kevin McDermott described it best:

In the Air Force case of United States v. Gutierrez, CAAF overturned 25-year-old precedence (case law) that had previously allowed military personnel to be convicted of the offense of aggravated assault solely on the basis of a determination that a service member had tested “positive” for the HIV virus.  In its opinion, CAAF determined that “the question in this case is not whether HIV, if contracted, is likely to inflict grievous bodily harm,” but rather that the question “is whether exposure to the risk of HIV transmission is ‘likely’ to produce death or grievous bodily harm.” 

This means that prosecutors can no longer assume that HIV is likely to produce death or grievous bodily harm”, but that they must PROVE each case.  Prosecutors don’t like to lose cases so, if they plan to file cases, they will likely be filed as misdemeanor battery akin to grabbing your arm or punching you.  Battery is punishable at most by 6 months in jail.  First offenders usually pay a fine/restitution.  I imagine that, in military matters, defendants will not necessarily be imprisoned or dishonorably discharged. 

I haven’t received any new calls for military defense in these cases (a good sign), but I know of one high profile military case where Gutierrez will significantly support the defense. 



CEO, Principal Investigator