Until recently Anthony Guadioso and his attorney, Peter Ticktin, were eager to talk about the man they say infected Guadioso with the AIDS virus. Eager to provide copies of a lawsuit outlining their charges, to speak with the press, to name the accused man, to employ provocative rhetoric in contending that Guadioso's two-year homosexual love affair was in fact a long death embrace.
"He murdered my client," Ticktin proclaimed in an April 21 report on WCIX-TV (Channel 6), during which the name of the alleged murderer was mentioned prominently by Channel 6's health specialist, Steven Greenberg. "When he knowingly infected my client with HIV," Ticktin continued, "it might as well have been a bullet to the heart. But the bullet would have been a lot faster."
Today Ticktin and Guadioso are much more cautious about what they say. Forty-eight hours after the Channel 6 broadcast, attorneys for the accused man filed an emergency motion with Dade Circuit Judge Robert Kaye asking that he impose a gag order and seal from view all court documents relating to Guadioso's lawsuit. The Channel 6 report, they claimed, had caused irreparable harm to their client's business relationships. Furthermore, they argued, Ticktin had violated state law by naming the man in his court pleadings. Guadioso and Ticktin would continue to damage their client's reputation, they said, unless stopped by the court.
That swift action by the lawyers, however, contrasted sharply with a much more complacent attitude that had prevailed for months. Guadioso's allegations had been a matter of public record since November 30, 1992, when Ticktin filed the complaint charging Guadioso's former lover with fraud and negligence for allegedly spreading the fatal virus. Though those court documents were public record and available to anyone willing to rifle through files at the county courthouse, the accused man's attorneys, Francisco Escalante and Alan Feeney, made no effort to protect their client's identity.
But after Channel 6 revealed his name to thousands of South Florida households, Escalante and Feeney quickly invoked a 1991 Florida "superconfidentiality" law that restricts dissemination of HIV test results. Judge Kaye responded with alacrity. Within hours he ordered that anyone connected with the lawsuit be barred from discussing it with third parties. In addition, all documents relating to the suit were ordered sealed until they could be rewritten to excise the accused man's name and replaced with initials only. From that moment on, and until further notice from the court, the man was supposed to be known only as "J.S." (Despite the judge's emergency ruling, court files containing J.S.'s full name were still available four days later. New Times obtained copies of those files but has chosen not to identify the man.)
Guadioso's lawsuit, Judge Kaye's order, and the legal arguments made by J.S.'s attorneys have raised a number of questions about application of the state's so-called superconfidentiality statute, violation of which carries a second-degree misdemeanor criminal penalty.
One year ago Peter Ticktin, Guadioso's attorney, found himself on the other side of that law. At that time he had sued a Miami physician and a lawyer for allegedly revealing that his client was suffering from AIDS. Ticktin took pains to shield his client's identity; he was known only as "John Doe." But in Guadioso's case (which arose as part of an unrelated property dispute), Ticktin apparently had no qualms about naming J.S. and publicly announcing that test results showed him to be HIV-positive. In doing so, according to J.S.'s attorneys, Ticktin violated a section of the superconfidentiality law that states, "[Court] pleadings pertaining to disclosure of [HIV] test results shall substitute a pseudonym for the true name of the subject of the test."
Attorney Alan Feeney says he is bound by the gag order not to discuss J.S.'s case and thus is not at liberty to explain why he waited nearly five months before objecting to Ticktin's having named his client in court papers. But speaking generally, he sees a broad application for the superconfidentiality law. In creating the statute, he believes, state legislators sought to encourage HIV testing by providing protection to people whose identities and test results might be revealed without authorization. Health care professionals, he argues, are not the only people subject to the law's restraints. "If a lawyer places the person's name in the public record, that lawyer is circumventing the legislature's intent," Feeney asserts.
Among those who disagree with Feeney is Miami attorney Stephen Bronis, who opposed Peter Ticktin in the John Doe case. (Bronis represented the lawyer who allegedly gossiped about John Doe's AIDS condition.) The section of the superconfidentiality law pertaining to court pleadings, Bronis contends, was meant to apply only to plaintiffs filing suit against those who may have revealed their test results, not to attorneys such as Ticktin. "In my opinion and the opinion of every court that has ruled on this issue," Bronis says, "they [Ticktin and Anthony Guadioso] are not covered by the confidentiality statute." Just two weeks ago a judge seemed to affirm that position by dismissing Ticktin's complaint against the lawyer Bronis defended.
In issuing his gag-and-seal order, though, Judge Robert Kaye appears to have sided with Feeney A at least until such time as he can hear arguments from both sides. But already his decision is drawing criticism. Anne Noble, a St. Petersburg attorney specializing in First Amendment law, says that other courts have viewed such a wide prohibition on discussion of HIV status as an infringement on the constitutional right of free speech. Kaye has every right to silence discussion for any number of reasons, Noble adds, but protecting J.S. from publicity surrounding his HIV status should not be one of them.
Beyond the potentially significant legal issues at stake in the controversy lies the tragedy of two young men whose very lives are now threatened by AIDS. New Times was unable to contact J.S. for comment, and Anthony Guadioso is constrained by the gag order from discussing his lawsuit. But he is willing to speak about his relationship with J.S.
Guadioso says he began regularly seeing J.S., his first gay lover, soon after they met in November of 1990 at Uncle Charlie's, a popular gay bar on Bird Road. Twenty-three years old at the time, Guadioso had recently moved to Miami to be near several relatives after graduating with a psychology degree from Toronto's York University and breaking up with his girlfriend there.
He had known he was gay while growing up on Long Island, New York, but had always pretended to be straight. Now, finally, Guadioso was liberated and involved in the sort of relationship he had always wanted. Or at least so he thought.
Guadioso's parents, especially his mother, had reacted to their son's announcement of his sexual orientation with repeated warnings about the risk of AIDS. Guadioso says J.S. provided assurances that he had tested negative for HIV (the virus suspected of causing AIDS), but still he insisted on practicing safe sex during their first six months together. However, as Guadioso became more and more concerned about his lover's past, he decided that a condom was a poor substitute for candor. "I kept asking to see the test results," Guadioso says, "but he kept refusing. He told me that if I loved him, I had to learn to trust him."
Guadioso trusted enough not to press the issue as he and J.S. drew closer and eventually bought a Kendall condominium together. He says he convinced himself there was nothing to be worried about after all: In addition to J.S.'s assurances, Guadioso had the negative results of his own HIV test, taken in April 1991.
In fact, after moving to the condo, Guadioso found himself so at ease that one night, when there was no condom to be found, he and J.S. simply did without one. Unprotected sex was suddenly no longer forbidden. For Guadioso it was the ultimate act of trust in his companion.
That trust was shattered a year later, when Guadioso took another HIV test. Though he insists J.S. had been his only sex partner, the test results came back positive. Guadioso says he then demanded to know the results of a more recent HIV test J.S. had been required to take in connection with his job. The results were devastating: J.S. had tested HIV-positive.
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In subsequently seeking publicity from Channel 6, Guadioso says he was not motivated by a desire to smear J.S. but rather by an interest in drawing attention to a different facet of the legal turmoil that erupted after his grim discovery: the difficulty of pressing criminal charges against J.S.
Under Florida law, a person can be charged with homicide if he knows he is infected with HIV, understands that it can be transmitted through sexual intercourse, and then infects an unsuspecting victim. Court documents filed by Guadioso's attorney claim that J.S. "either knew or should have known he, in fact, was infected and contagious with HIV." Guadioso nevertheless admits it won't be easy to prove that J.S. was lying when he said he had tested negative, or that he knew he was HIV-positive. Yet he still believes J.S. acted criminally. "I don't think people should walk around with a label saying they're HIV-positive, but I don't think think they should be able to deceive people, either," Guadioso says. "It goes beyond [J.S.] doing this to me. There are a lot of other people who should be stopped. I want legislation to come out of this case."
According to the Dade State Attorney's Office, criminal charges have not been ruled out. Prosecutor Anne Marie Ferrar acknowledges that an investigation is under way, but will not comment about it.
Guadioso, meanwhile, hopes the gag order will be lifted soon so he can try once again to generate public interest in his case. "My whole personality has changed as a result of all of this," he says. "I used to be so bubbly and fun, but now all I do is worry about what I can and can't say.