Informed Consent and HIV Criminalization in the Military Justice System

In 1987, the military justice system began to try defendants for assault and other charges on the basis of having unprotected sex after having tested positive for HIV. This paper considers how the concept of “informed consent” developed and functioned within this system. Like civilian courts that also began to consider HIV criminalization cases, military courts applied the concept of consent not only to a sexual encounter, but also to knowledge of seropositive status. However, military courts sometimes also convicted defendants even when they had obtained informed consent from their sexual partners because of concerns about “good order and discipline.” Additionally, service members’ military status limited their rights to informed consent in its original medical context, requiring the blood testing that made these prosecutions possible.