Do I have to tell a sexual partner that I am HIV-positive in California?

Posted by Neil Shouse | Apr 09, 2018 | 0 Comments

Thanks to California Senate Bill 329, as of January 1, 2017, it is no longer a felony for people who are HIV-positive to have unprotected sex and not disclose their status.

SB 329 also automatically vacated prior convictions related to:

  • Non-disclosure of HIV status (former Penal Code 647f), and/or
  • Felony prostitution convictions based on HIV status.

But, it is still possible for someone to file a civil lawsuit for money damages if a partner fails to disclose an STD.

Below, we discuss how SB 329 has changed California HIV law and when someone needs to disclose an STD to a partner.

1. Is it a crime intentionally to infect someone with HIV?

Penal Code 120290 is California’s law on willful exposure to an infectious disease. PC 120290 makes it a misdemeanor to have unprotected sex without telling a partner of an STD – but only if the intention is to infect the other person.

If the person is actually infected as result of the intentional exposure, PC 120290 can be punished by:

  • Up to 6 months in jail, and/or
  • A fine of up to $1,000.

Attempting (unsuccessfully) to transmit an infectious or communicable disease can be punished by up to 90 days in jail.

2. Is non-disclosure still a crime?

SB 329 also added Section 1170.21 to the California Penal Code. PC 1170.21 automatically vacates prior arrests and convictions for:

  • Non-disclosure of HIV status (former Penal Code 647f), and/or
  • Felony prostitution convictions based on HIV status.

Former Penal Code 647f made it a felony for someone who knew he or she was HIV positive to have unprotected sex with a partner without first informing the partner.

California law also made it a felony for a defendant who tested positive for AIDS after a prostitution conviction to be convicted of a second prostitution offense.

SB 329 automatically vacated these arrests and convictions. For all legal intents and purposes, they never occurred. This means that people who were arrested, charged or convicted of these counts do not need to disclose them when applying for employment or a California state license.

But anyone currently serving a sentence for such a charge must petition the court to vacate the conviction. Time served will be credited to any related charges on which the defendant was also convicted (such as Penal Code 647b, California's law on prostitution).

3. Is there mandatory HIV-education for prostitution or solicitation convictions?

Under prior California law, anyone convicted of a first offense for prostitution or soliciting prostitution was required to take an AIDS education course.

But following the enactment of SB 329 people convicted of a first offense for these charges no longer need to do so.

4. Can I be sued for not disclosing my HIV-positive status to a partner?

California law allows a plaintiff to sue for damages if:

  1. The defendant owed the plaintiff a legal duty of care,
  2. The defendant was negligent, and
  3. As a result of the defendant's negligence, the plaintiff suffered damages.

There is also a “negligence per se” law in California. Under this law, a defendant is liable in a civil lawsuit when:

  1. The defendant violated a statute, ordinance, or regulation;
  2. The violation caused death or injury to person or property;
  3. The death or injury resulted from an act the statute, ordinance, or regulation was designed to prevent; and
  4. The person who suffered the death or the injury was a member of a group the statute, ordinance, or regulation was designed to protect.

Sexual partners are members of the group the that Penal Code 120290 is trying to protect.

But a defendant only violates Penal Code 120290 when he or she intentionally tries to infect a partner. So people will usually not be liable under a theory of negligence per se.

This means that in most cases, a plaintiff would have to prove actual negligence by a preponderance of the evidence.

A defendant might be negligent for infecting a partner with HIV if:

  1. The defendant knew he or she had AIDS or was HIV-positive;
  2. The defendant was negligent in not disclosing his/her status and/or not using a condom or dental dam; and
  3. As a result of that negligence, the plaintiff acquired the disease and suffered damages  (such as medical bills and/or pain and suffering).

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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