Published January, 1989

State v. Guayante, 783 P.2d 1030 (Or. Ct. App. 1989)

Guayante was convicted of one count of sexual abuse and two counts each of attempted rape and sodomy of a thirteen-year-old girl. Taking into consideration Guayante's HIV-positive status, the court sentenced him to a total of thirty years in prison.

Before announcing Guayante's sentence, the trial court told Guayante that by sexually assaulting his victim while knowing that he is HIV-positive, Guayante had committed a crime "that approached attempted murder" and was "the most reprehensible" that he could fathom.

On appeal, Guayante argued that by imposing a thirty-year sentence upon him, the court violated sections 12 and 16 of article 1 of the Oregon Constitution, which prohibits vindictive or cruel and unusual punishment, to the extent that the court imposed the sentence to punish Guayante for his "status" as an HIV-positive person. Affirming Guayante's sentence, the Oregon Court of Appeals held that a defendant's placing of his/her sexual assault victim at risk of contracting HIV is an aggravating factor that a trial court may consider when imposing maximum consecutive sentences. The court held that such a consideration does not impose a penalty on a defendant for being HIV-positive, but rather takes into consideration such defendant's willingness to expose his victim to "an incurable fatal disease."