San Diego authorities say they’ve done something that nobody has done statewide in two decades: use health laws to successfully prosecute someone for willfully exposing a sex partner to the HIV virus.
Thomas Miguel Guerra of San Diego faces a potential penalty of six months in custody and a $1,000 fine after pleading “no contest” Monday to a violation of the state health code.
Guerra entered the plea on the day trial was to begin, according to the City Attorney’s Office. He had previously pleaded not guilty.
“This case is the first prosecution of willful HIV transmission in San Diego County,” said a statement from the City Attorney’s Office, which said it found no previous successful prosecution of this kind in the 20 years since the Legislature adopted the statute.
Guerra is charged with one count of Health and Safety Code section 120290, which states: “Except as provided in Section 120291 or in the case of the removal of an afflicted person in a manner the least dangerous to the public health, any person afflicted with any contagious, infectious, or communicable disease who willfully exposes himself or herself to another person, or any person who willfully exposes another person with the disease to someone else, is guilty of a misdemeanor.”
Criminal prosecutions for HIV transmission have been controversial, however.
In 2013, ProPublica reported that, over the previous decade, at least 541 cases in 19 states involved people being convicted of, or pleaded guilty to, criminal charges for not disclosing that they were HIV-positive.
The report added:
In 60 cases for which extensive documentation could be obtained, ProPublica found just four involving complainants who actually became infected with HIV. Even in such cases, it can be hard to prove who transmitted the virus without genetic tests matching the accused’s HIV strain to their accuser’s. …
But some health and legal experts say using criminal penalties to curtail the epidemic could backfire and fuel the spread of HIV. According to the CDC, 1.1 million Americans are currently living with HIV, but one-fifth of them don’t know it. And studies show that about half of newly infected people got the virus from those who didn’t know they had HIV. So relying on a partner to know, let alone disclose, their HIV status is a risky proposition.
The laws, these experts say, could exacerbate this problem: If people can be imprisoned for knowingly exposing others to HIV, their best defense may be ignorance. Such laws, then, provide a powerful disincentive for citizens to get tested and learn if they carry the virus.
The city says the case began in August 2013 when Guerra’s victim filed a complaint with the San Diego Police Department. The victim told police that:
- He and Guerra were in a romantic relationship for several months in 2013.
- Guerra claimed to be HIV negative and the two had unprotected sex at Guerra’s urging.
- The victim learned he was HIV positive in May 2013 after previously being tested negative.
- After the relationship ended, the victim learned that Guerra knew he was HIV positive before the relationship began.
“I hope this case helps to educate people that it is a crime to willfully expose someone to an infectious disease,” said San Diego City Attorney Jan Goldsmith. “The law is designed to protect the public and, in this case, enforce the right of one’s partner to know the truth.”
The City Attorney’s Office said it was prepared to prove that Guerra knew he was HIV positive and that he willfully and unlawfully had unprotected sex with the victim without disclosing his HIV status.
Sentencing is scheduled for April 13, the City Attorney’s Office said.
The Centers for Disease Control and Prevention says an analysis by its own and Department of Justice researchers found that, by 2011, a total of 67 laws explicitly focused on persons living with HIV had been enacted in 33 states.3
“These laws vary as to what behaviors are criminalized or result in additional penalties,” the CDC said. “In 24 states, laws require persons who are aware that they have HIV to disclose their status to sexual partners and 14 states require disclosure to needle-sharing partners. Twenty-five states criminalize one or more behaviors that pose a low or negligible risk for HIV transmission.”
