Woman Says Sailor Infected Her With HIV : Hearing: Navy is considering whether to charge a petty officer with assault for knowingly transmitting the AIDS-causing virus.

A former Navy woman, now infected with the AIDS-causing virus, testified during a military court hearing Wednesday that a male sailor infected her when they had sex and he neglected to tell her he was a carrier of the virus.

Navy officials are investigating the incident and considering whether to charge Petty Officer John Joseph with assault, aggravated assault and battery. The incident reflects increasing aggressiveness among the armed forces in pursuing individuals who knowingly infect others with acquired immune deficiency syndrome.

Three such cases have resulted in the conviction in military courts of an enlisted individual for assault for transmitting the AIDS-causing virus, said Lt. Mark Newcomb, the prosecutor in Joseph’s case. None of those cases involved Navy personnel, he said. More frequently, prosecutors in military courts have charged individuals with failure to obey an order, since military personnel found to be carriers are usually ordered to inform their sex partners of their condition before having intercourse.

The woman, a 37-year-old San Diego resident and member of the Naval Reserve, testified Wednesday at the 32nd Street Naval Station that after having sexual intercourse with Joseph she tested positive for the human immunodeficiency virus, which doctors believe causes AIDS. During an encounter in January, 1989, she and Johnson used a condom that broke, she said. Joseph did not inform her that he was a carrier of HIV until after she had tested positive that June, she alleged.

Had she known of Joseph’s condition, she never would have agreed to have sex with him, she testified.

“I am carrying a lot of anger because this guy knew he had it,” she said after the court proceedings. “If he didn’t know and had given it to me, that would be unfortunate. But he knew he had it and gave it to me--that’s devastating. What nice decent person would do something like that?”

In Joseph’s case, the prosecutor’s argument centers on whether the woman’s consent to have sex with Joseph is nullified because she was ignorant of his medical condition. Newcomb said Joseph was like an individual who is holding a gun, knowing that the safety is on, pulling the trigger and having the gun go off.

“If the safety fails, that still is an aggravated assault,” said Newcomb, who used the analogy to equate the safety with a condom.

But Joseph’s attorney, Lt. Marcella Auclair, countered that, “We have a case here of two consenting adults in the privacy of a home engaging in sexual intercourse.”

Rear Adm. John W. Adams, Commander Naval Base, will review a report from Wednesday’s proceedings and decide whether to convene a court martial.

Under the Uniform Code of Military Justice, established by Congress to handle crimes within the armed forces, Wednesday’s proceeding was an Article 32 hearing. Such a hearing in some ways resembles a grand jury hearing during which witnesses are compelled to testify as part of an investigation. However, Wednesday’s hearing was open to the public.

Joseph is also being investigated for charges relating to the unauthorized use of a government vehicle and pawning Navy-owned cameras. The maximum penalty for these charges and those relating to assault would be a dishonorable discharge and about 20 years in jail, Newcomb said.

As of March 5, there were 899 active duty Navy personnel who had tested positive for HIV. As long as an individual is fit for duty, he can remain in the armed forces. Those who go on to develop debilitating AIDS symptoms are placed on medical disability.

Military and civilian experts say the majority of infected individuals take precautions to ensure that they do not spread the potentially deadly virus.

“These cases (like the one involving Joseph) continue to be the exception. By and large, people who are HIV-positive are behaving responsibly and either disclosing their HIV status or engaging in safer sex,” said Urvashi Vaid, executive director of the National Gay and Lesbian Task Force in Washington.

Some critics oppose using criminal charges in cases involving HIV transmission, saying it strains patient-doctor confidentiality. They worry that it could force a physician to act like a policeman and report his patients. But others, including the American Medical Assn., support criminal charges for individuals who knowingly spread AIDS.

AIDS, or the HIV, is contracted through the exchange of bodily fluids. This exchange can occur from the use of intravenous needles, blood transfusions or during sexual intercourse. In this case, the woman, who says she is not an intravenous drug user, testified that she had been sexually abstinent before and after her encounter with Joseph. A member of the Reserves for the past eight years, the woman has been tested for AIDS every year since the Navy began testing. Her first positive test was last June.

When a senior officer informed her of her test results, she did not believe him. She had two additional tests conducted; both were positive.

She sat in the doctor’s office and as she learned of the additional positive test results, she said she thought she was having a heart attack. Today, however, she has reconciled herself to beating the deadly disease.

“I’m a strong lady. I’m not going to shout and kill myself,” she said. “If I wasn’t following the Lord, I’d be way down--but He keeps me walking. This is not going to take me out, I’ll be around kicking until I’m at least 70.”