       This opinion is subject to revision before publication




         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
         Lamar A. FORBES, Aviation Maintenance
            Administrationman Second Class
               United States Navy, Appellant
                          No. 18-0304
                    Crim. App. No. 201600357
       Argued December 4, 2018—Decided February 7, 2019
               Military Judge: Heather Partridge
   For Appellant: Robert Feldmeier, Esq. (argued); Lieutenant
   Commander William L. Geraty, JAGC, USN (on brief).
   For Appellee: Lieutenant George R. Lewis, JAGC, USN
   (argued); Colonel Mark K. Jamison, USMC, Captain Brian
   L. Farrell, USMC, and Brian K. Keller, Esq. (on brief);
   Colonel Valerie C. Danyluk, USMC.
   Amicus Curiae for Appellant: Peter E. Perkowski, Esq. (on
   brief) — Outserve–SLDN, Inc.
   Judge SPARKS delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN,
   OHLSON, and MAGGS, joined.
                   _______________

   Judge SPARKS delivered the opinion of the Court.

   A military judge sitting as a general court-martial
convicted Appellant, pursuant to his pleas, of one
specification of making a false official statement, three
specifications of sexual assault by bodily harm, and one
specification of infected sexual battery,1 in violation of
Articles 107, 120, and 134, UCMJ, 10 U.S.C. §§ 907, 920,
934 (2012).2 The military judge sentenced Appellant to


   1  Appellant was convicted of infected sexual battery pursuant
to an assimilated Virginia law.
   2  Pursuant to Appellant’s pretrial agreement, the military
judge dismissed four specifications of assault consummated by a
             United States v. Forbes, No. 18-0304/NA
                      Opinion of the Court

reduction to E-1, eight years of confinement, and a
dishonorable discharge. The convening authority approved
the sentence as adjudged. The United States Navy-Marine
Corps Court of Criminal Appeals affirmed the findings and
the sentence. United States v. Forbes, 77 M.J. 765 (N-M. Ct.
Crim. App. 2018). We granted review to determine whether
Appellant’s pleas to sexual assault by bodily harm through
failing to inform his sexual partners he was HIV positive
were provident.

                         Background

           In February 2012, the appellant tested positive
       for [human immunodeficiency virus (HIV)] and was
       counseled several times by medical providers to
       refrain from engaging in sexual activity without
       first advising any prospective sexual partner that
       he carried HIV. From July 2013 to June 2015,
       however, the appellant engaged in unprotected
       sexual intercourse with four different women
       without telling any of the women that he was HIV-
       positive. Each of the women consented to
       intercourse with the appellant, but did so without
       knowledge of his positive HIV status.

Forbes, 77 M.J. at 768. Appellant subsequently entered into
a pretrial agreement which required a stipulation of fact and
Appellant’s agreement to enter unconditional guilty pleas to
three allegations of sexual assault by bodily harm.

                          Discussion

    “A military judge’s decision to accept a guilty plea is
reviewed for an abuse of discretion.” United States v. Eberle,
44 M.J. 374, 375 (C.A.A.F. 1996). “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.” United States v.
Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008) (citation
omitted). Thus, “[t]he 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.”



battery, Article 128, UCMJ, 10 U.S.C. § 928, and one specification
of sexual assault, Article 120, UCMJ, 10 U.S.C. § 920.



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             United States v. Forbes, No. 18-0304/NA
                      Opinion of the Court

United States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014)
(citation omitted).

    Appellant now argues his pleas were improvident
because his HIV-positive status did not cause any of the
victims to engage in sexual intercourse with him.3 He argues
both the text of the statute and the elements of the offense
require that the alleged offensive touching cause the sex act.
He interprets this to mean that, in order for his pleas to be
provident, he would have to “explain how touching any victim
with the HIV virus could cause that victim to engage in a
sexual act.” This assertion misstates the law. Rather, it is the
failure to inform the victims of the HIV-positive status that
vitiates meaningful consent and causes the touching to be
offensive. As such, for the reasons that follow, Appellant’s
guilty pleas were provident.

    In pleading guilty to each specification of sexual assault
by bodily harm, Appellant agreed he (i) “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.” Manual for Courts-Martial, United States pt. IV,
para. 45.b.(3)(b) (2016 ed.) (MCM). “Bodily harm” is defined
as “any offensive touching of another, however slight,
including any nonconsensual sexual act or nonconsensual
sexual contact.” MCM pt. IV, para. 45.a.(g)(3). “Consent” is
defined as “a freely given agreement to the conduct at issue
by a competent person.” MCM pt. IV, para. 45.a.(g)(8)(A). To
be freely given, consent must be informed. See United States
v. Gutierrez, 74 M.J. 61, 68 (C.A.A.F. 2015) (explaining in
the context of offensive touching that “[w]ithout disclosure of
HIV status there cannot be a true consent.” (quoting R. v.
Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.))); see, e.g., United
States v. Bygrave, 46 M.J. 491, 493 (C.A.A.F. 1997) (noting
that “lack of consent is an element of the offense” of rape
and discussing informed consent as an individual’s decision
to have sex with her partner after he informed her he was
HIV positive).



   3  Although the Government argues appellate review is waived
because Appellant pled guilty, a guilty plea does not waive review
of whether a plea was provident. See, e.g., Moon, 73 M.J. at 386–
89 (reviewing whether a guilty plea was provident).



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             United States v. Forbes, No. 18-0304/NA
                      Opinion of the Court

   With these definitions in mind, we have long held first
that failure to disclose one’s HIV-positive status before
engaging in sexual activity constitutes an offensive touching,
United States v. Joseph, 37 M.J. 392, 395 (C.M.A. 1993),
overruled in part by Gutierrez, 74 M.J. 61, including offensive
touching constituting bodily harm for assault offenses,
United States v. Upham, 66 M.J. 83, 87 (C.A.A.F. 2008), and
second that “informed consent can convert what might
otherwise be an offensive touching into a non-offensive
touching.” Joseph, 37 M.J. at 396 n.5 (internal quotation
marks omitted).

     Thus, 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.4

   The MCM’s statement of the elements of sexual assault
by bodily harm, quoted above, is consistent with the conduct
charged in each specification: “In that [Appellant], on active
duty, did [at location and on specified dates], commit a
sexual act upon [the victim] to wit: penetration of her vulva
with his penis, by causing bodily harm to her, to wit:
engaging in such act without previously informing her that
he carries [HIV].”

    It is also consistent with what Appellant admitted in the
stipulation of fact: “After I tested positive for HIV, I engaged
in sex with multiple women without disclosing my HIV
status. None of these women … were … aware of my HIV-
positive status.”




   4  Both Appellant and Amicus Curiae Outserve–SLDN argue
Appellant’s failure to inform his victims of his HIV-positive status
could not have constituted bodily harm under Article 120(b)(1)(B),
UCMJ. More specifically, Appellant argues his failure to disclose
his HIV-positive status did not negate consent because it was
merely “fraud in the inducement,” and not “fraud in the factum.”
These arguments, however, are foreclosed by our precedent, which
states that true consent must be informed. Gutierrez, 74 M.J. at
68 (“[w]ithout disclosure of HIV status there cannot be a true
consent”) (citation omitted).



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            United States v. Forbes, No. 18-0304/NA
                     Opinion of the Court

    Finally, the MCM’s statement of the law is also
consistent with Appellant’s pleas, as evidenced by what he
and the military judge discussed during the plea colloquy.
The military judge began her inquiry by explaining what a
guilty plea entails and what rights are forfeited in pleading
guilty. She repeatedly asked whether Appellant understood
what she was explaining, and he repeatedly replied, “Yes,
ma’am.” Next, the military judge defined the stipulation of
fact as a formal agreement between Appellant and the
Government containing facts each party agreed were true.
Appellant told the military judge he understood what the
stipulation was when he signed it and agreed he did so
freely and voluntarily.

    Next, the military judge listed Article 120(b)(1)(B)’s
elements and explained that, in the context of Appellant’s
case, bodily harm meant “penetrating [each victim’s] vulva
with [his] penis without previously informing her that [he]
carr[ies] HIV.” She explained that the “government has
alleged that [Appellant] committed certain sexual acts with
[the victims]—specifically, penetrating their vulvas with
[Appellant’s] penis—and that the same physical acts also
constitute the bodily harm required for the charged sexual
assaults.” She explained that, should the case proceed to
trial, the Government would also have the burden to prove
the victims did not consent to the charged sexual
intercourse.

    The military judge then defined several terms for
Appellant. She defined “sexual act” as “the penetration,
however slight, of the vulva with the penis.” She defined
“vulva” and “labia” for Appellant. She defined “bodily harm”
as “any offensive touch of another, however, slight, including
any nonconsensual sexual act or nonconsensual sexual
contact.” She defined “consent” as “a freely given agreement
to the conduct at issue by a competent person,” considering
all the surrounding circumstances. She even explained
“ ‘HIV positive’ means that you carry the Human
Immunodeficiency Virus.”

   The military judge also discussed relevant case law with
Appellant, including our holding in Gutierrez, which she
described as our “recogni[tion] that a person who is unaware
of the HIV status of her sexual partner cannot provide




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            United States v. Forbes, No. 18-0304/NA
                     Opinion of the Court

meaningful, informed consent to engage in a sex act with
that person.”

    Appellant agreed he understood each element and
definition and agreed that they accurately described the
conduct as charged.

    Finally, in his own words, Appellant told the military
judge he had sex with the victims. He explained this conduct
was wrongful because he failed to inform his victims of his
HIV-positive status. And he told the military judge he and
his defense counsel had discussed “meaningful consent” and
that his victims could not have consented because they “did
not know prior to intercourse about [his] HIV status.”

    The military judge conducted a more than adequate plea
inquiry—clarifying concepts, defining terms, summarizing
the law, and repeatedly pausing to ensure Appellant’s
understanding. Appellant pled guilty, admitting 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. The military judge
determined there was an adequate basis in law and fact to
accept his pleas. We conclude the military judge did not
abuse her discretion in accepting them.

                         Judgment

    The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.




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