Tuesday, Thomas Miguel Guerra was sentenced to six months in jail. If that doesn’t concern you, it should.
The developing narrative is that Guerra hid his status from a partner as a step toward intentionally, and with disturbing delight, infecting his partner with HIV. According to NBC 7 San Diego, Judge Katherine Lewis, who delivered the sentence, was “visibly angry.” If the narrative is correct, she may be right that a maximum sentence of six months is a “travesty” for what Guerra did. But not for what he was charged with.
Guerra was charged with a misdemeanor offense under California Health and Safety Code 120290, which states in relevant part:
“Except as provided in Section 120291…any person afflicted with any contagious, infectious, or communicable disease who willfully exposes himself or herself to another person, and any person who willfully exposes another person afflicted with the disease to someone else, is guilty of a misdemeanor.
With regard to the Guerra narrative, the statute is important for what it doesn’t say. No mention of disclosure of status. No mention of consent. No mention of acceptable precautions. No mention of intent to transmit the disease, whether “successful” or not. All of that is covered in Section 120291, which lays out the criteria for felony charges that were not pursued against Guerra.
Judge Lewis may disagree with that decision, and her frustration is understandable. It is hard to accept that texting “Yay lol. Someone getting poz that day. Already poz.” followed by “Poor sucka” is simply dark humor, as Guerra’s attorney apparently suggested in explaining the “no contest” plea. Yet it is only relevant to the actual charges in so far as it shows he knew he had a communicable disease and exposed someone else.
Which is why you should be concerned. Whatever you believe about Guerra’s actions, he got six months in jail for violating Section 120290. That section, as written, could apply to anyone with HIV (or gonorrhea, chlamydia, syphilis, Hepatitis B, Hepatitis C, etc.) who has sex.
Did you disclose your status? Did they consent? Apparently irrelevant.
What if you are undetectable? What if you wore a condom? What if your partner is on PrEP? Seems to depend on how that affects “communicable” to a judge and lawyer, not a doctor.
Lawyers say that bad cases make bad law. That probably applies here. The City Attorney’s office believes this is the first guilty verdict or plea in San Diego County under the statute, which is 20 years old. It’s hard to escape the feeling that Guerra got the full misdemeanor sentence because the Judge thought he was guilty of a felony. It is unlikely that she, or the City Attorney, will suddenly try to increase prosecution under the misdemeanor statute; but someone, somewhere, could use the precedent to criminalize HIV.
That’s the last thing we need as we try to #bethegeneration that ends HIV. We need people to get tested and know their status, not be afraid that knowing their status could get them prosecuted. We need to talk about HIV as a disease that often can be controlled with a pill, and prevented with a pill. It is no longer the untreatable disease that evoked specific rules. Many medical professionals forced to choose a virus would have picked HIV over Hepatitis C until very recent therapies for the latter.
City Attorney Goldsmith said in a statement “We hope this tragic case helps to educate people that they have a legal obligation — as well as a moral and ethical obligation — to inform their sex partners of their HIV status.” Judge Lewis apparently hopes the law will change and become a felony.
They both have part of the truth. The laws should change to reflect what we currently know about HIV. It is treatable. It is preventable. It is possible for people living with HIV to have safe and active sex lives.
People who know their status, hide their status, and actively try to infect others should be charged, but that should apply to any communicable disease. People with HIV or any other treatable disease taking appropriate steps to mitigate risk shouldn’t have to worry about prison or probation.
While this statute would not have required prosecutors to prove intent to harm, in all likelihood Guerra did intend to infect the victim in this case, as well as others. Even activists looking to do away with HIV-related criminal statues do not generally have a problem with prosecuting people who spread the virus intentionally, a phenomenon which is apparently very rare. The problem with this case is not the outcome but the statute itself, because the statute can obviously be misused in other contexts. However, this statue has never before been used to prosecute someone for exposing others to HIV. Guerra very likely got what he deserved, and may very well have deserved a greater punishment. What needs to change are statutes that are overly broad like this one, and to end the inclusion of HIV in criminal statutes. Existing statutes governing bodily harm should suffice to prosecute the rare intent-to-infect cases.
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