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."