Gamalier Lopez Vargas is accused of raping a child while knowing he was HIV positive.  It gets worse –  the child is a family member of his.  The case is presently assigned to the Honorable Christina Miranda in Miami, Florida.  Since this is a developing case, details are sketchy at this point.  However, there is one very important piece of information that is being publicized.  According to news reports, Lopez Vargas told detectives that the victim knew he was HIV positive.

As a criminal lawyer, this seemed like an odd comment to me.  It didn’t sit right.  Why make such a statement to investigators?  After all, isn’t it a tacit admission that he had sex with the minor AND that he knew he was infected when he did it?

So I did a little digging…

Pursuant to Florida Statute 775.0877, it is an affirmative defense to the crime of criminal transmission of HIV if the infected victim knew the offender was HIV positive.  For those who don’t know, an affirmative defense is like a justification for taking a certain action.  For example, in a murder case, an affirmative defense might be that a person acted in self-defense when they killed the supposed victim – and in this case, maybe the underage girl did know (whether this makes a difference in the case of minor is another discussion for another article).

HOWEVER, having litigated countless sex offender cases, let me tell you the real issue.  One of the primary commonalities that I find with sex offenders is the extreme amount of DENIAL that they live in.

The reality in their minds is very different from ours.  There is always some twisted logic to their actions, to the justifications, to the whacked-out defense theories they come up, and the like.

Lawyers and other professionals who work with sex offenders know exactly what I am talking about.

 The Real Issue

So getting back to my point – of all the things to possibly say to police, why did Lopez Vargas say the girl knew he was infected with HIV?  The reason is based on an insight into the sex offender mind… when presented with the allegation that he had sex with a minor while being HIV+, his brain reacted to the HIV+ part.  This is because a real sex offender has that denial thing going on about the sex part.

They live in this bizarre duality.  On the one hand, they can live very normal lives, be educated, have jobs, and look normal.  They can be our school teachers, coaches, religious figures, police officers, bus drivers, doctors, uncles, whatever.  They wake up in the morning, shower, dress themselves and go to work at their 9-5 job.  They pay their bills, take vacations, and eat Thanksgiving turkey.

Except they have this compulsion.  This obsession.  This skewed, scary, and bizarre child-sex thing going on… and they can’t control it.  BUT –  to them its acceptable.  Its normal to them.  Its what they do –  even when its horrible, violent, and not consensual.

In their minds, there is an explanation that makes sense to them –  that of course leaves the rest of us puzzled and angry when we hear it… like Broward man who blamed Colombian culture when he got caught having sex with child prostitutes.

In this case, I strongly suspect Lopez Vargas made that comment because the sex was somehow justified in his mind.  It was the HIV+ transmission that he felt guilt about. Being HIV+ is a status that has nothing to do with his sexual preference for children.  He has no psychological thing going on with HIV.  In fact, he probably has normal reactions to that status.

But the fact that he tacitly admitted to raping the child in an effort to defend himself against an allegation that he criminally transmitted HIV tells me a lot about his character.

It also tells me a second thing:

He knew very clearly what he was doing was wrong.

I may be mistaken, but Lopez Vargas does not look like a legal scholar to me.  I don’t think he made law review at Harvard.  He also doesn’t look like a member of the Florida Legislature.  So it makes me wonder, in an effort to respond to the allegation of criminal HIV transmission, how did he know to answer that the girl knew of his status?

I don’t believe in coincidence and I don’t believe this guy knows anything about law.  Except he knows one thing:  the affirmative defense.

To know this, he had to self-educate about the law.  He had to inquire, either online or to someone else who knows.  Before committing this offense, he knew it would be a defense to claim that the victim knew his status.  That makes this crime even worse.

Prosecutors refer to such actions as “consciousness of guilt” and such evidence can be used at trial to get a conviction and during sentencing to get a hefty sentence.

In any event, this is a case we will be following as it develops through the courthouse.