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Witness: HIV-positive airman’s wife condoned sex

by Roxana Hegeman .
Wednesday Jan 19, 2011

An HIV-positive Air Force sergeant accused of having sex with multiple unwitting partners was encouraged by his wife, who had talked about opening a bed-and-breakfast for swingers, witnesses told a military judge Tuesday.

Tech. Sgt. David Gutierrez also repeatedly denied being infected when partners asked about his HIV status, several witnesses testified during court martial proceedings at McConnell Air Force Base in Wichita. Gutierrez is stationed at the base with the 22nd Maintenance Operations Squadron.

The airman is charged with 10 counts of aggravated assault - one count for each sexual partner - and with violating his squadron commander's order to notify partners about his HIV status and use condoms. He also is charged with multiple indecent acts, for having sex in front of others, and nine counts of adultery.

Gutierrez pleaded not guilty Tuesday to all charges in the case. Military judge Lt. Col. William Muldoon rejected a defense attorney's request to dismiss the aggravated assault charges as unconstitutional because similar case law on aggravated assault in effect says his client can't ever have sex again.

Among the prosecution witnesses to testify Tuesday was a Topeka woman who said she had unprotected sex with Gutierrez on multiple occasions, after she asked him whether he had any sexually transmitted diseases and he assured her he "was clean." She said she would not have had sex with him had she known he had HIV.

"I watched a brother die of AIDS," she said. "It wouldn't have happened."

The Associated Press is not naming the airman's sexual partners because they are alleged victims of a sexually-based crime.

The woman said Gutierrez's wife also participated in the swinger lifestyle.

"She was talking about opening a bed-and-breakfast for swingers," the woman said. "She was all for it."

A Wichita man who said he participated in swinger events with the couple also testified that Gutierrez flatly denied being HIV positive and that the airman's wife pushed him into having sex with others.

One Wichita woman testified that she and her partner met Gutierrez on an adult website and later had dinner at his house, where she said the airman's wife asked the couple, "Do you want to have dessert or do you want to play?"

Gutierrez's wife is not in the military and has not been charged with any crime.

During opening statements, defense attorney Capt. Aaron Mannes had asked the judge to note the conduct of Gutierriez's wife when considering the adultery charges. Mannes also argued that having sex without disclosing one's HIV status is not necessarily aggravated assault and urged him to consider recent science regarding HIV transmission.

When it came time for cross examinations, defense attorneys emphasized that none of the witnesses who testified had been infected with HIV and that during many of the encounters they described, Gutierrez either used a condom or did not ejaculate.

Capt. Sam Kidd, who is prosecuting the case, said during opening statements that the government has a legitimate, if not compelling interest, to protect the community from service members spreading a life-threatening disease.

Gutierrez's commander, Maj. Christopher Hague, testified that after learning about the airman's HIV status, he gave Gutierrez a written order in October 2009 requiring him to use condoms and notify his sexual partners of his HIV status before engaging in sex.

Under military law, Gutierrez could face more than 53 years in prison if convicted on all charges. Other penalties include a dishonorable discharge, forfeiture of pay and reduction in rank.

Prosecutors are expected to wrap up their case Wednesday.

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