boiling water, drugs, or a rifle butt may be used in a manner likely to inflict death or grievous bodily
harm. However, an unloaded pistol, when presented as a firearm and not as a bludgeon, is not a
dangerous weapon or a means of force likely to produce death or grievous bodily harm, whether or not
the assailant knew it was unloaded. United States v. Turner, 42 MJ 689 (ACCA 1995). Part IV, MCM
1984, para 54(c) (4) (a) (ii). This would, of course, still be an assault.
When investigating an aggravated assault with a dangerous weapon or "means or force likely," it
is important to remember that it is not necessary that death or grievous bodily harm be actually inflicted.
Aiming a loaded weapon at an individual without firing constitutes aggravated assault with a dangerous
weapon. United States v. Cato, 17 MJ 1108 (ACMR 1984). Similarly, striking at, but missing, another's
head with a pool cue or broom handle would also constitute aggravated assault with a "means likely"
even though the perpetrator never hit the victim.
Another example of aggravated assault with a means or force likely to produce death or grievous
bodily harm, would be a perpetrator who is HIV positive. A perpetrator who is informed he is HIV
positive and who has unwarned protected or unprotected sexual intercourse with another can be
convicted of aggravated assault with a means or force likely to produce death or grievous bodily harm.
In US vs. Schoolfield, 40 MJ 132 (C.M.A. 1994), the Court of Military Appeals upheld the
aggravated assault of the accused who had been informed he was HIV positive. Also, his company
commander counseled him on having sex and ordered him not to have sex without using "barrier
protection," i.e., a condom, and without warning his prospective partner of his HIV positive status. The
accused had unwarned and unprotected sexual intercourse. The Court upheld his conviction for
aggravated assault with a means or force likely to inflict death or grievous bodily harm, even though the
virus had not been transmitted. Further, in US vs. Joseph, 37 MJ 392 (C.M.A. 1993), the Court upheld
an aggravated assault conviction under similar circumstances, except the accused used a condom. The
Court held that a condom is not absolutely failsafe. Therefore, even though the accused used a condom
and the victim has not tested positive for HIV, the accused's having unwarned and "protected" sexual
intercourse with a partner constitutes a means or force likely to produce death or grievous bodily harm.
Again, the Court upheld the accused's conviction of aggravated assault.
Also see United States vs. Reister, 40 MJ 666 (NMCMR 1994) (Unwarned and unprotected
intercourse by individual with genital herpes may constitute an assault with a means likely to inflict
grievous bodily harm).
2. Aggravated assault in which grievous bodily harm is intentionally inflicted.
The
elements of this offense are:
a. That the accused assaulted a certain person;
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