WICHITA, Kan. – Two women testified at a military hearing Tuesday that they would not have had sex with an airman had they known he was HIV positive, and one said she believed him when he said he wasn't because he was in the Air Force.
Tech Sgt. David Gutierrez has been charged with violating military law by having unprotected sex with at least 11 people without telling them he was infected.
The two women who testified Tuesday detailed numerous encounters where they had unprotected sex with Gutierrez, including at several so-called swinger parties in the Wichita area. Some of their sexual encounters were videotaped by the 43-year-old airman's wife, they said.
One woman, from Topeka, testified she asked Gutierrez whether he had any sexually transmitted diseases and believed him when he assured her he didn't.
Asked why she believed him, she tearfully replied, "Because he is Air Force. They have integrity. I trusted him."
The woman testified about numerous sexual encounters between May and June of last year. Asked on cross examination whether she had been infected with HIV, she said no.
The other woman, who now lives in Bailey, Colo., also said on the stand that she would not have had sex with Gutierrez at swinger events had she known he was HIV positive. She was not asked whether she had been infected.
Gutierrez, who was stationed at McConnell Air Force Base with the 22nd Maintenance Operations Squadron, has been under arrest there since Aug. 9.
Along with one count of aggravated assault for each sexual partner, Gutierrez has been charged with violating his squadron commander's October 2009 order to notify his sexual partners about his HIV status before having sexual relations and to use a condom. He also has been charged with indecent acts for allegedly having sexual relations in front of others, adultery and obstruction of justice.
Tuesday's Article 32 hearing, similar to a civilian grand jury, is used to determine whether there is enough evidence to proceed to a court martial proceeding. No plea is entered at this stage.
Gutierrez's defense attorneys told the presiding investigator, Lt. Col. Eric Mejia of Altus Air Force Base in Oklahoma, that they didn't plan to present witnesses at this hearing. They declined to comment after the hearing.
Special Agent Richard Toth of the Air Force Office of Special Investigations at McConnell, testified that military authorities found out about Gutierrez's sexual activities from numerous interviews with his wife. He testified the wife was apparently concerned that her husband was not telling his sexual partners of his HIV status.
The airman's wife, a civilian, did not testify Tuesday. Under military law she cannot be subpoenaed at this stage of the proceedings.
Special Agent Derrell Freeman testified that the wife told military authorities that after Gutierrez was briefly detained at the airport, he came home and deleted files from his computers. Gutierrez had been detained because the military had put out an alert on him and put his name on a no-fly list before arresting him the following day.
His commander, Maj. Christopher Hague, testified that he personally gave Gutierrez a written order in October 2009 requiring him to notify his sexual partners of his HIV condition before engaging in sex and to wear condoms. Gutierrez signed the order acknowledging he had received it, Hague said.
Once his investigation is complete, Mejia will send a report from Tuesday's hearing to the 18th Air Force Command at Scott Air Force Base in Illinois, where military authorities are expected to decide in two or three weeks whether to proceed to a court martial.
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.
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