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Is it Illegal to Give HIV in California? - California Health and Safety Code HSC 120291

Posted by Raoul Severo | Nov 08, 2020 | 0 Comments

Way back in 2017, it was reported that California saw over 135,000 cases of HIV. For those who do not know, Human Immunodeficiency Virus (HIV) is a life-threatening disease and is known for triggering many other infections, such as AIDS, herpes, and eye, lung, and digestive problems. 

It has, so far, ended more than 29 million lives all over the world. Since its discovery, HIV/AIDS has spread around the globe like a wildfire. It is due to the continuous efforts of both government and independent charities that HIV awareness has been strongly promoted in the community. One of these initiatives is the California Health and Safety Code HSC 120291. Under this law, an individual can be held criminally accountable if: 

  • The defendant knows for a fact that he/she is HIV positive
  • Participates in a sexual intercourse with another individual who is not infected with the virus
  • Consciously decides not to disclose their sexual health status to their partner, and
  • Thereby infecting another person with HIV.

In other words, it is illegal for anyone who is infected with HIV to have unprotected sex and not disclose their HIV status prior to intercourse. 

This law seemed reasonable during its time of enactment, but with HIV cases dropping nowadays, many LGBTQ and HIV awareness activists have heavily criticized this and many other HIV transmission laws. Their outrage stemmed from the fact that HIV was the only communicable disease you could face criminal prosecution for by transmitting it. Consequently, they argued that HSC 120291 is not just an attack on those with HIV, but rather an attack on the LGBTQIA+ community. 

With these claims in mind, former California Governor Jerry Brown signed Senate Bill (SB) 239 -- the law which repealed HSC 120291. For many pro-LGBT and HIV awareness supporters, this bill is a step further towards ending HIV stigma. Instead of criminalizing HIV victims, they should be encouraged to get tested and start treatment.

Examples

With California Health and Safety Code HSC 120291 now repealed, it is important to emphasize that HIV-infected individuals who knowingly expose their sexual partners to the disease can still be prosecuted. Thus, it is only fitting to cite some scenarios that may be considered a crime under California law.

  • You bring home a prostitute for a one-night-stand. Unbeknownst to you, however, the sex worker is actually HIV positive. Instead of telling you that information, he/she decides to keep it to themself so you wouldn't be discouraged from rejecting their service.
  • After a few months of dating, your partner finally consents to having sex -- but under one condition: you must both get tested to make sure that you are safe for each other. Upon receiving the results, you discover that you have HIV. Your partner tells you that he/she is clear, but you then reason out that they do not have to know about your results because he/she should trust your words alone. After a few months since your first intercourse, your partner gets themself tested and discover that he/she is now HIV positive.
  • A friend of yours is a sex worker and asks for your help to get clients. You know that she is an HIV patient but you decided not to reveal that information to her clients. 

Related Offenses

As we said earlier, California Health and Safety Code HSC 120291 is just one of several HIV transmission-related laws. The following are related crimes and laws:

  • Wilfully exposing someone to a communicable disease. This crime does not require the actual transmission of the infection; exposure is enough.
  • Medical donation by a person infected with HIV
  • Prostitution in California
  • Rape

Punishments for Transmitting HIV and Non-Disclosure of HIV Status

Under California Health and Safety Code, a conviction will automatically result in a felony offense where one can be imprisoned in state prison for:

  • Three;
  • Five; or
  • Eight years

However, under the new law which is SB 239, the offense has been reduced to a misdemeanor where the penalties are:

  • Up to 6 months in county jail, and/or
  • Fines and compensation to the plaintiff

How Criminal Defense Attorneys Can Help You

If you are currently being charged for infecting your sexual partner with HIV, don't worry -- you're not alone in this fight. As any competent defense lawyer will tell you, there are legal defenses that you may use to counter a charge like this. A defense like “my partner consented to the sex” is not a strong argument in this case, but “false allegation” may stand a chance. Talk to a criminal defense lawyer now to see which one will work for you best.

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