Guest Blogger

Ignorance: A Shocking Reminder

Filed By Guest Blogger | January 26, 2011 8:30 AM | comments

Filed in: Living
Tags: David Gutierrez, HIV disclosure laws, HIV transmission, John Aravosis, McConnel Air Force Base, Todd Heywood

Editors' Note: Guest blogger Todd Heywood is a professional journalist for the Michigan Messenger.

heywood.JPGAs a reporter, I have spent a lot of time writing about HIV-specific criminal laws and their impact not only on those who are accused of violating them, but of the wider impact on HIV as an epidemic.

I have reported on the case of Michael Holder, a straight black man who was convicted in 2000 of failing to disclose his status to his white female partner. She recanted her testimony during trial, admitting that she knew he was HIV-positive, but a jury which included four members with blatantly racist attitudes convicted him.

I broke the story about the unprecedented bio-terrorism charges against a black gay man in the Detroit area. The man was charged with bio-terrorism for allegedly biting a neighbor during a brutal gay bashing incident.

So when the Jan. 20 post by John Aravosis supporting the hanging of a man convicted of failing to disclose his infection came across my inbox, it was a shocking reminder about how much work is left to do in relation to HIV and criminalization.

In that post he opined about how hard he was finding it to feel sorry for Sergeant David Gutierrez, 43.

First, let me begin by pointing readers to the Denver Principles. This powerful document was a declaration of the rights and responsibilities of persons with HIV written in Denver Colorado in 1983. Under recommendations for people HIV (called AIDS in this document because the virus would not be discovered for two more years), the Principles say HIV positive persons have an ethical responsibility to disclose their status to sex partners and to substitute low risk sexual behavior.

Let's be clear, no one is saying that HIV-positives don't have an ethical obligation to disclose.

What constitutes low risk behavior has changed significantly since 1983 when the Principles were written.

Sgt. Gutierrez was diagnosed while stationed in Italy in 2007. When he returned to McConnel Air Force Base, he began treatment. While the mainstream media report Arovosis linked to makes no mention of this, effective anti-retroviral treatment has been proven to reduce the risks of HIV infection significantly.

In 2008 the Swiss High Court ruled that an HIV-positive person with an undetectable viral load controlled by ART for six months of more and no other sexually transmitted infections was legally unable to transmit HIV.

Here is how AIDSMap sums up a study of HIV infectiousness and viral load:

A 2009 analysis of all studies to date in heterosexual couples where one partner was HIV-positive - but where most were not on antiretroviral therapy (ART) - has confirmed that a high viral load can significantly increase the risk of transmission, and that a low viral load (which is possible to achieve in a minority of people who do not receive ART) significantly reduces the risk. The authors calculated that out of 1000 HIV-positive individuals with a viral load below 400 copies/ml regularly engaging in vaginal sex with an HIV-negative partner, only one transmission could be expected to occur in the course of a year. In contrast, among 1000 HIV-positive individuals with a viral load above 50,000 copies/ml, at least 90 transmissions could be expected to occur in the course of a year.

Of course such information does not fit the narrow, stigmatizing view of HIV many Americans prefer to live with -- particularly gay and bi men.

Here is the result of a 2008 study of 1,725 men who have sex with men and HIV criminalization opinions:

Overall, 65% of men believed that it should be illegal for HIV-positive individuals to have unprotected sex without disclosure, 23% thought it should not be illegal and 12% did not know.

Support for criminalisation was highest (79%) among men aged between 18 and 20, and lowest (56%) among those aged 41 to 70. The investigators note that younger gay men were significantly less likely to have been tested for HIV. Separate research has shown that untested men are more likely to adopt a disclosure-based HIV prevention strategy "that gains credibility by transmission laws."

The overwhelming majority (70%) of HIV-negative and untested men (69%) supported legal sanctions, but only 38% of HIV-positive men endorsed criminalisation. "These differences most likely reflect a shift in orientation toward criminal statues on HIV transmission following seroconversion", comment the investigators.

Men with the lowest educational achievements were most likely to support criminalisation (75%), and those with a degree least likely (58%).

Over three-quarters of men who did not identify as gay or bisexual supported criminalisation compared to 63% of those who had some form of gay identity.

In addition, those who were least comfortable with their sexual orientation were most likely to endorse criminalisation.

That information is key to understanding an important study released in September of 2010.

That September study of 8,153 men who identified as gay or bisexual in 21 cities found the following staggering statistics:

  • 19% of the men tested positive for HIV, the virus that causes AIDS.
  • 28% of black, 18% of Hispanic, and 16% of white men tested positive for HIV.
  • 44% of the men who tested positive for HIV had been unaware of their infection.
  • 59% of black, 46% of Hispanic, and 26% of white men who tested positive for HIV were unaware of their infection.
  • 63% of the HIV-positive men age 18-29 were unaware of their infection.

So what does all this information really add up to?

HIV is a disease, but one which is significantly unlikely to be transmitted when one is undergoing treatment. But in order to get treatment one needs to get tested for the virus. Sadly, as we see by the above studies, most men who have sex with men are relying more and more on these disclosure laws, relegating their safety to another person's power. Worse than that, nearly half of those infected don't know they have the virus, but presume they are uninfected.

The real question here is not should Sgt. Gutierrez obligated ethically to disclose his HIV-positive status, but rather, why are Americans of any sexual orientation abdicating their personal health and safety to another person's willingness or ability to disclose?

In short, our ignorance as gay men is literally killing us. All that blog post has done is re-enforce that ignorance.

Leave a comment

We want to know your opinion on this issue! While arguing about an opinion or idea is encouraged, personal attacks will not be tolerated. Please be respectful of others.

The editorial team will delete a comment that is off-topic, abusive, exceptionally incoherent, includes a slur or is soliciting and/or advertising. Repeated violations of the policy will result in revocation of your user account. Please keep in mind that this is our online home; ill-mannered house guests will be shown the door.

Thank you for this, Todd. The issue of criminalization is fraught with emotion ("My boyfriend infected me, he should go to jail!") and misinformation, and this is a great review of the facts.


By placing the onus on Sgt. Gutierrez's victims, rather than on himself, you are literally "blaming the victims." Sgt. Gutierrez acted not only "unethically" but also criminally. He doesn't deserve to be hanged, but he does deserve to be imprisoned, and that is the punishment he received.

Todd Heywood | January 26, 2011 12:24 PM

Jay, I understand how you can see that. But the reality is that I am talking about shared responsibility in consensual sex. What responsibility do you have if you are having sex with some one? Isn't there some level of personal responsibility here? Particularly since none of the people he is accused of having sex with without disclosing his status were infected, and at least one talked about how he used a condom? Isn't that taking an affirmative role, by him, to protect his partners (and himself?). Also don't you find it at all interesting that he was charged and convicted of adultery and indecency in front of others for having consensual sex in swinger situations? When are we going to stop using the law to moralize?

Under that logic Sgt. Gutierrez is himself a victim of someone else, and you're blaming him.

Seriously, stop blaming the victim. It's so inappropriate to attack someone who's clearly a victim and demand that they go to prison because they were victimized.

Richard Jefferys | January 26, 2011 1:25 PM

Although I agree with you about the criminalization issue, I'm not so sure about your take on Gutierrez. The original Smoking Gun post quotes him as writing:

“The research I have done raises several questions on weather or not HIV is even related to AIDs.”

And it also mentions the finding of two envelopes containing a total of 146 pages of "HIV related research articles." But it appears no journalist has inquired about the content of those articles, or who they were by. Based on his quote, it sounds like they might well have been by AIDS denialists.

With respect, any merits to your piece are washed away by your cherry picking and outright distortion of the facts.

It wasn’t just a matter of Gutierrez choosing not to disclose his HIV status. He LIED about it.

“Gutierrez repeatedly denied he was infected, and was encouraged by his wife to carry on with his promiscuous lifestyle, several witnesses testified during the first day of the airman's court martial at McConnell Air Force Base in Wichita.

‘I watched a brother die of AIDS. It wouldn't have happened’, a Topeka woman testified Tuesday about her decision to have unprotected sex with Gutierrez on multiple occasions. She said she had asked him whether he had any sexually transmitted diseases and he assured her he ‘was clean’." – Associated Press.

2. Even had he NOT outright lied, as an airmen he’s subject to punishment for having violated an order TO disclose.

“Gutierrez's commander, Maj. Christopher Hague, testified that after learning about the airman's HIV status, he personally gave Gutierrez a written order in October 2009 requiring him to use condoms and notify his sexual partners of his HIV status before engaging in sex.” – ibid.

The overcharging [adultery/sex in front of others]due to the unique erotophobia of the military does NOTHING to invalidate the basic charge any more than Jared Loughner shouldn't be charged with shooting Gabby Giffords because government itself is pretty f-ed up.

And the potential exposure to blood in the military [regardless of his not serving in a combat zone] justifies such orders and prosecution for violating them. Initially, the treatment of people with HIV/AIDS by the military was even more horrendous than in the civilian world. The huge progress they've made must not be allowed to be jeopardized by the irresponsible actions OF CHOICE by service members like Guiterez.

3. In a 2007 post on, he wrote, “The research I have done raises several questions on weather [sic] or not HIV is even related to AIDs.” Not a crime, but "goes to state of mind."

4. NO, his partners’ stupidity in believing ANYONE and not insisting on safer sex/condoms doesn’t exonerate HIM.

5. NO, overcharging in the Detroit case, or the Florida spitting case, do NOT make all charges wrong in every other case, least of all this one.

6. “’Legally’ ‘unable’ to transmit HIV”? Mary, please! Don't get us started on Swiss "law."

7. “Unlikely” to transmit? Unfortunately, statistics don’t have to take expensive medications for life, suffer a degradation in the quality of or length of such life. Put another way, that’s like Obama saying “civil unions” are as good as “marriage.”

8. Your attempt to perpetuate the myth of “HIV criminalization” is both intellectually and morally irresponsible unless you can show me anywhere in the US that simply being HIV+ is a crime. You might as well claim “penis criminalization” because rape is against the law.

9. You selectively misinterpret the results of the study of attitudes about criminalization of NONDISCLOSURE, conflating two different facts into one conclusion to suit your assertion that fear of prosecution leads people not to get tested. There was nothing to support that, only:

“The overwhelming majority (70%) of HIV-negative and untested men (69%) supported legal sanctions, but only 38% of HIV-positive men endorsed criminalisation. ‘These differences most likely reflect a shift in orientation toward criminal statues on HIV transmission following seroconversion’, comment the investigators.”

[Again, the British-spelled “criminalization” refers to failure to disclose HIV+ status NOT “being” HIV+.]

There's also a correlation between opinions on gun laws and whether or not the respondent owns a gun. Doesn't prove there shouldn't be any gun laws.

Further the referenced first study summary reads: “Separate research has shown that untested men are more likely to adopt a disclosure-based HIV PREVENTION strategy ‘that gains CREDIBILITY by TRANSMISSION LAWS’.” Emphasis mine.

And the second study makes NO mention of fear of laws at all, but the fear of intersocial stigma and discrimination.

“’We must confront fear. Many men do not get tested and retested because they are afraid of what they might learn’, [CDC center for HIV/AIDS director Kevin] Fenton, says. ‘Finding out you have HIV is hard, but not knowing is even worse and puts your life and others' lives at risk. We must confront stigma’, Fenton says. ‘Homophobia and discrimination can also stand in the way of too many gay and bisexual men seeking and receiving appropriate HIV prevention services, testing, and care’."


“45% of MSM who were unaware of their infection DID report having an HIV test during the preceding 12 months, indicating they had acquired HIV recently or reported an incorrect HIV test result to the interviewer.” Emphasis mine.

Sorry, this wasn't "reporting" but editorializing. You retain your right to BELIEVE such laws are wrong, but opinion and empiricism are two different things.

Thank you.

I done plenty of articles on my own site, and the two sides of the HIV criminalization always separate very quickly: one side thinks that cases like Guitterez stigmatize those that are HIV positive and keep the cloud of fear out there. They're right to a point. The other edge of that sword is that he purposely lied to his partners about his status for a piece of ass; multiple times. Should he simply walk away from this scott free? No; but I don't know that years of incarceration are the answer either. He's lost his career and ruined his reputation. That's going to be hell to rebuild, if indeed he ever does.

His partners were also gullible enough to take him at his word when he said he was negative. My sympathy to his "victims" is within a very tight set of parameters.

Lastly, I think Aravosis showed a stunning lapse in judgment putting out a piece that voice his preference in hanging the Sgt. Passive aggressive to be sure, but a poor choice of wording. A regular contributor/owner/editor of a well-read site such as his should have taken the extra 60 seconds to think before he hit the "publish" button - obviously not a step they take very often.

I just saw on the news that according to a report from CDC, the number of gay people on the largest HIV dating site STDslove. com has reached 310,000. This site seems to be powered by plenty of fish and most of the gay people on it are sexy and good looking.

Personally, I have no objection to gay marriage. My concern is that more and more gay men get STDs. It seems that gay men is easier to get an STD and they even don't know when they have it.

Honestly, every time I read someone saying that people who don't disclose their status should hang, I can't help but assume that these people bareback regularly and are scared to death that they've had sex with someone who's poz who didn't disclose. It's the obvious explanation for such extreme rhetoric.

Also funny: We've been spending weeks talking about the "violent discourse" on the right, and here this pseudo-liberal asks for someone to be killed (I only want the government to kill him, he'd plea.) Gotta watch out for those pseudo-liberals - they can cause more damage than honest rightwingers.

Yeah, that was the first thing I thought of. What happened to civil discourse? Of course, for me it'd be like the pot calling the kettle black. I'm not known for holding back either...

"Let's be clear, no one is saying that HIV-positives don't have an ethical obligation to disclose." Well, actually a lot of people would argue that positive people don't have an absolute obligation toward disclosure under all sexual circumstances. There are a number of important aspects to the Denver Principles, but we should remember they were drafted prior to widespread awareness and adoption of safer sex practices. One could say that when any two people engage in unprotected sex without any conversation, this lack of conversation on a potentially important topic could be considered an ethical lapse by both parties. When a person who is HIV-positive engages in protected sex without disclosure, there is no ethical lapse on anyone's part. Positive people do not have a de facto ethical obligation to disclose in all sexual circumstances.