Transmitting an STD can be a crime in California. It is prohibited by California Health and Safety Code 120290. People who know they are infected with an STD can be liable if they intentionally infect someone else. They can also be held liable if they got a third party to transmit their STD to someone else.
The criminal laws concerning STD transmission went through major changes in 2018. California law no longer makes a distinction between HIV/AIDS and other STDs.
1. What is the crime of intentionally transmitting an STD?
California HSC 120290 makes it a crime to intentionally transmit an infectious disease. This includes sexually-transmitted diseases like:
- gonorrhea, or
To be liable under Health and Safety Code 120290, all of the following have to apply:
- the defendant knew that he or she or a third party was infected with an STD,
- the defendant specifically intended to transmit that STD to someone else,
- the person infected with an STD does something that poses a substantial risk of transmission, and
- the STD is transmitted to the victim.1
If the defendant was the person with the STD, the victim cannot have known about the disease.
2. What is willfully transmitting an STD?
Someone infected with an STD can be criminally liable for willfully transmitting it, as well.
Willfully transmitting an STD requires a doctor telling the defendant not to engage in certain conduct. That conduct has to pose a substantial risk of transmitting the disease.
If the defendant engages in that course of conduct within 4 days, he or she can be liable.2
3. How has the law changed recently?
In 2018, a law went into effect that drastically changed how STD infections were treated.3 That law did several things, including:
- repealing California HSC 120291, which had made it a felony offense to intentionally transmit HIV,
- treating STDs the same as transmitting other contagious diseases, and
- reducing the penalties for knowingly donating blood infected with HIV.
4. What are examples of when STD transmission if a crime?
- Deliberately trying to infect as many people with HIV as possible,
- Getting an ex-girlfriend to have intercourse with someone who has herpes, and
- Getting diagnoses with gonorrhea and being told not to have intercourse, but then having sex later that night.
5. Are there related criminal offenses?
There are several criminal offenses related to intentionally or willfully spreading an STD. They are:
- soliciting prostitution (Penal Code 647(b) PC). These charges can happen if the defendant got someone known to be infected with an STD to spread it to the victim.
- supervising prostitution (Penal Code 653.23 PC). These charges can be filed against pimps who know a prostitute is infected.
- assault with a deadly weapon (Penal Code 245(a)(1) PC). Texas juries have convicted defendants for assault with a deadly weapon by infecting someone with HIV.4
6. Are there any legal defenses?
People accused of transmitting an STD have several legal defenses. They include showing that:
- transmission of the disease happened through pregnancy,
- practical measures were taken to prevent transmission,
- the risks of transmission were low, and
- the STD was transmitted through an organ, tissue, or breast milk donation.
Proving that practical measures were taken to prevent STD transmission can be a strong defense. It undercuts the specific intent that the prosecutor has to prove. Those measures can include:
- using a condom or other prophylactic, or
- following a prescribed treatment plan to prevent STD transmission.
Another strong defense is that the risks of transmitting the STD were low. This can work if the STD was passed to someone else without having sexual intercourse.
7. What are the penalties for a conviction?
Transmitting an STD, whether willfully or intentionally, is a misdemeanor. The penalties of a conviction include:
- Up to $1,000 in fines, and/or
- Up to 6 months in jail.5
Attempted transmission of an STD is also a misdemeanor. However, it comes with lower penalties because the offense was not completed. Convictions carry:
- Up to $1,000 in fines, and/or
- Up to 90 days in jail.6
8. Can I sue someone for giving me an STD?
Victims can file civil lawsuits against the person who gave them an STD. Those lawsuits have to show that the infected person:
- has an infectious STD,
- did not disclose it to a sexual partner,
- did nothing to prevent its transmission, and
- could reasonably foresee the potential for harm.7
In California, civil lawsuits for compensation have been filed when the victim suffered:
- Herpes simplex,8 and
- California Health and Safety Code 120290 (a)(1).
- See Michael E. Miller, “Man who knowingly spread HIV sentenced to six months. Judge calls it a ‘travesty,’” The Washington Post (May 5, 2015).
- California Senate Bill 239. See also Julie Moreau, “New California Law Reduces Penalty for Knowingly Exposing Someone to HIV,” NBC News October 13, 2017).
- “Texas: Man Sentenced in Spread of H.I.V.,” The New York Times (May 30, 2009).
- California Health and Safety Code 120290 (g)(1).
- California Health and Safety Code 120290 (g)(2).
- See Doe v. Roe, 218 Cal.App.3d 1538 (Cal. App. 1990).
- Doe v. Roe, Supra.
- In re Louie 213 B.R. 754 (Bkrtcy.N.D.Cal. 1997).