“Lock him up and throw away the key.” That seems to be the prevailing sentiment about Thomas Guerra, aka Ashton Chavez, who was charged by the San Diego City Attorney’s Office with “wilfully exposing infectious person to another,” or, in English, lying about his HIV status and infecting his sexual partner(s).
If all I have read is true, that sentiment may be fair. As the conversation and conjecture about Guerra’s case have exploded on social media, however, the rush to judgment and the breadth of application of that penalty has troubled me.
For a moment, grant Guerra his American promise of presumed innocence. The media would spend notably fewer column inches clearing his name than it gave to publicizing the charges. That’s true of most high profile trials, but Guerra gets a special bonus: his sexual orientation and HIV status have been made public. Potential employers who aren’t allowed to ask that question can now just Google the answers. If Guerra is innocent, no matter how big an “if” you feel it is he may deserve some sympathy.
If Guerra isn’t innocent, what exactly does he need to be guilty of to deserve our wrath? What if he felt indifference, not malice, but preferred bareback sex and his partners agreed? Could tasteless texts about transmission after the fact put him over the line? Or is it sufficient that he knew he was HIV positive and didn’t disclose to his partners? Some Facebook posters appear ready to lock up every non-discloser, whether they were asked their status or not.
The problem with drawing a line based on those questions is that they don’t actually assess the risk. No matter how ill the intent, oral sex is unlikely to transmit HIV. The risk can also be lowered if the positive person is on anti-retrovirals and undetectable, the negative person is taking effective PrEP, or condoms are used.
Sadly, many of the laws that criminalize HIV exposure were written out of fear and prejudice, before we understood transmission and when HIV was still considered untreatable. As such, it is widely considered to be an over prosecuted and over penalized “crime.” There are still states where exposure to saliva is considered criminal, despite that we now know better. Proof of intent to transmit can be irrelevant, disclosure can be difficult to prove, and condom use may not be a sufficient defense. Using HIV specific statutes, individuals can be subject to harsher penalties and sentences merely because they are positive. Such laws are rarely, if ever, applied to Hepatitis C patients, despite there being few effective medications until very recently.
Making safe consensual sex anything other than a shared responsibility is bad for public health, because it cuts half of the people out of the effort. Still, there are cases where intent or lies make prosecution appropriate. Guerra’s may be one of them, as it appears the City and District Attorney’s offices thought carefully before making charges. We should do the same, and listen to the evidence, before indicting people in our conversations and posts.
Further information on HIV Criminalization can be found at www.hivlawandpolicy.org/initiatives/positive-justice-project
I really like the way you brought this issue up; your point is very well made. I am actually the complainant in the case and I can tell you that my discovery of the evidence 6 months after I had already been knowingly living with the virus which both Thomas and I knew he gave me, is what compelled me to involve the authorities. There are around 30,000 text messages that chronologically document his finely honed craft of almost emotionlessly seeking out negative and often barely adult partners, tricking them into thinking he was in love with them, and then not only infecting them with HIV, but making films of it so he could share them with a small group of “gift givers” that all encouraged each other to spread the disease. He is a classic anti-social personality if you’re interested in looking that up on a psychology website. You can run down the list of features and mark a check next to each and every one. This lawsuit is not about me at all, but about using what fragile and delicate mechanism there is without resorting to violence, to hopefully protect people. and the way that the media sensationalizes it is in diametric opposition to what I hoped would happen. No one would have even known about this case if the evidence wasn’t stolen and leaked to the press. There are many convolutions as to how we have ended up in this place where I am leaving a comment on your article. I plan on making a film about this entire experience as well as the history of the disease, its current legal, medical and scientific landscape and the myriad social lenses through which one can hopefully see how this is truly a paradigm shifting teachable moment. Please email me if you read this because I appreciate your point of view and would like to have more of a dialogue with you.