Bill Would Amend California’s HIV Criminal Statutes

It is reported that legislation will be introduced that will update California’s laws criminalizing HIV.  It would make it so that a person could not be prosecuted for intentionally transmitting the virus if his or her sex partner tested negative for HIV. This comes at a time in which health officials throughout Southern California are reporting alarming increases in STDS, particularly syphilis, gonorrhea, and chlamydia, which are also part of a national epidemic.

According to the Centers for Disease Control and Prevention, STD rates reached a record high.  While officials do not know the definitive cause for such high rates, they include medical and social factors ranging from a lack of adequate screening to decreased fear of curable STDs.  Specifically, Orange County reported cases of gonorrhea were up 75% from 2011 to 2015.  Syphilis cases jumped 80%, and chlamydia increased 14%. The California Department of Public Health say the highest STD rates are found among young people, African-Americans, and gay and bisexual men, according to the state.

California Has Strict HIV Disclosure Laws

Under current California Law, it is a felony if you fail to disclose to your sexual partner that you are HIV positive with the specific intent to transfer the virus to him or her.

Pursuant to California Health and Safety Code § 120291(a),“Any person who exposes another to the human immunodeficiency virus (HIV) by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony punishable by imprisonment in the state prison for three, five, or eight years.”

Another law on the books targets sex workers who are HIV-positive. If a prostitute is convicted of solicitation, he or she faces up to 16 months in prison.

Legal Defenses

Proving intent to infect someone with HIV is extremely difficult. You cannot be prosecuted if you did not know you were HIV positive, or even if you have never even been tested. Criminal statutes punishing HIV transmission have been held not to violate the Constitution’s equal protection clause because these laws punish voluntary conduct rather than the status of being HIV positive.

Lastly, just because you are not criminally liable does not mean you cannot be held civilly liable for damages in civil court.   

San Diego Sex Crimes, Sexual Assault, and Criminal Defense Lawyer

The Law Offices of David M. Boertje handle all misdemeanor and felony criminal cases with zeal and expertise, including cases involving sexual offenses, alleged sexual assault, and violent crimes. If you are under investigation or have been arrested for committing a sexual offense or for transmitting HIV to someone in the San Diego area, contact attorney David Boertje today.  Even in modern times, there is a lot of stigma against those with HIV. Call us today, and we will go over all your available legal defenses and make sure you get the fair trial you deserve.