Health and Safety Code 120291 HS makes it a California felony to:
- expose another person to the human immunodeficiency virus (HIV),
- through unprotected sexual activity,
- you know at the time of the unprotected sex that you are infected with HIV,
- you have not disclosed your HIV-positive status to your partner(s), AND
- you intend to infect the other person with HIV.1
The penalty for violating Health and Safety Code 120291
The penalty for intentionally violating Health and Safety Code 120291 is:
- three, five, or eight years in California state prison.
What constitutes “unprotected sexual activity” under HS 120291?
Under California Health and Safety Code 120291, “sexual activity” is defined as:
- insertive vaginal or anal intercourse on the part of an infected male,
- receptive consensual vaginal intercourse on the part of an infected woman with a male partner, or
- receptive consensual anal intercourse on the part of an infected man or woman with a male partner.2
In ordinary parlance, you engage in “insertive” sex when you are a “top.” You engage in “receptive” sex when you are a “bottom.”
Such sexual activity is considered unprotected if you do not use a condom.3
Oral sex – as well as vaginal or anal sex with a condom -- does not count as unprotected sexual activity for purposes of Health and Safety Code 12091.
Proving intent to infect the other person with HIV
Proving intent to infect someone with HIV is extremely difficult.4
Evidence that you knew of your HIV-positive status is not – by itself -- sufficient to prove intent.5
There are no published California cases interpreting the meaning of “intent” under Health and Safety Code 120291 HS.
A proposed 2005 California senate bill -- SB 235 -- would have loosened the intent requirement to crime to “willful or wanton disregard for the health of the other person."6
But after opponents argued that the change would discourage people from being tested for HIV, the bill was withdrawn by its sponsor.7
Consent by partner to have unprotected sex (probably) not a defense
Because there are so few prosecutions under California Health and Safety Code 120291,8 California courts have not had the opportunity to consider the issue of consent under this law.
However, a California bankruptcy court considered the issue of consent to unprotected sex in the context of a civil suit for damages. It ruled that the failure to disclose HIV to a partner before unprotected sex constitutes a basis for a civil liability for sexual battery under California Civil Code 1708.5 CC.
The bankruptcy court said that just because a partner consents to unprotected sex, it does not mean (s)he consented to be exposed to HIV.9
Whether a California criminal court would rule likewise remains to be seen.
No equal rights violation based on HIV-positive status
Criminal statutes punishing HIV transmission have been held not to violate the Equal Protection Clause.10 This is because the laws punishing HIV transmission do not criminalize the status of being HIV-positive, but specific voluntary conduct.11
1. California Health and Safety Code 120290 HS – willfully exposing someone to an infectious disease
California Health and Safety Code 120290 HS makes it a misdemeanor for anyone with an infectious disease to willfully expose him- or herself to another person.12
Health and Safety Code 120290 applies to any infectious disease -- not just HIV.
Unlike HS 120291, Health and Safety Code 120290 does not require proof of intent to infect the other person. Willfully exposing the other person to HIV is enough.
Violation of Health and Safety Code 120290 HS is punishable by:
- up to six months in county jail, and/or
- a fine of up to $1,000.13
2. California Health and Safety Code 1621.5 HS – medical donation by person infected with HIV
California Health and Safety Code 1621.5 makes it a felony for anyone who knows that he/she has HIV or AIDS to donate:
- organs or other tissue,
- semen, or
- breast milk.14
The section applies only to donations to medical centers and semen or breast milk banks. It also applies only when such donation is for the purpose of distribution.
Moreover, the law does not apply to blood donated for your own use. So if you give blood before you undergo surgery in case you need a transfusion, you are not guilty of violating HS 1221.5 HS.15
Violation of Health and Safety Code 1621.5 HS is punishable by:
- two, four, or six years in county jail.
3. California Penal Code 12022.85 – penalty enhancement for sex crimes by persons with HIV or AIDS
Penal Code 12022.85 PC provides a three-year sentencing enhancement when someone infected with HIV / AIDS is convicted of:
- Rape -- California Penal Code 261,
- Statutory rape -- California Penal Code 261.5,
- Spousal rape -- California Penal Code 262,
- Sodomy -- California Penal Code 286, or
- Oral copulation with a minor – California Penal Code 288(a).
The three-year enhancement in addition and consecutive to the penalty for the underlying crime.
Call us for help...
For more information about California's laws on criminal transmission of HIV, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada laws re intentional transmission of HIV. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.
1 California Health and Safety Code 120291(a) HS: 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. Evidence that the person had knowledge of his or her HIV-positive status, without additional evidence, shall not be sufficient to prove specific intent.
2 California Health and Safety Code 120291(b)(1): "Sexual activity" means insertive vaginal or anal intercourse on the part of an infected male, receptive consensual vaginal intercourse on the part of an infected woman with a male partner, or receptive consensual anal intercourse on the part of an infected man or woman with a male partner.
3 California Health and Safety Code 120291(b)(2): "Unprotected sexual activity" means sexual activity without the use of a condom.
4 See, e.g., comment to SB 235 bill analysis, April 4, 2005 by Former California former state senator (and current California congressman) Jeff Denham:
“[HS 120291]is written in such a way that it is nearly impossible to prove… The current law fails to punish the more common scenario of a defendant acting with criminal recklessness by engaging in unprotected sex and not disclosing his or her HIV status to his or her sexual partner.” analysis of proposed Senate Bill 235 (which Denham later withdrew):
See also California Healthline Daily Digest, April 14, 2005, summarizing a story in the Modesto Bee on Denham's withdrawal of the bill (“Nate Baker, an assistant district attorney, noted that the current law ‘require[s] such a high burden that it's almost impossible to prosecute.'").
5 California Health and Safety Code 120291(a) HS, endnote 1.
6 See same.
7 See same.
8 See California Healthline Daily Digest endnote 4, which reported that according to the Modesto Bee, as of the withdrawal of SB 235 in 2005, only four people had been prosecuted under HS 120291, and only one had been convicted.
9 In Re Louie (1997) 213 B.R. 754.
10 California Constitution, Article 1: Declaration of Rights.
11 See Guevara v. Superior Court (1998) 62 Cal.App.4th 864, 73 Cal.Rptr.2d 421 (“Penal Code section 12022.85… does not criminalize the status of being HIV-positive because it applies only where a knowingly HIV-positive individual commits specified criminal conduct. As a requisite element of this enhancement is the commission of volitional criminal conduct, the enhancement does not punish ‘status' and is not constitutionally objectionable on this ground.”).
12 California Health and Safety Code 120290 HS: Except as provided in Section 120291 or in the case of the removal of an afflicted person in a manner the least dangerous to the public health, any person afflicted with any contagious, infectious, or communicable disease who willfully exposes himself or herself to another person, and any person who willfully exposes another person afflicted with the disease to someone else, is guilty of a misdemeanor.
13 California Penal Code 19 PC: Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.
14 California Health and Safety Code 1621.5(a) HS: It is a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, four, or six years, for any person to donate blood, body organs or other tissue, semen to any medical center or semen bank that receives semen for purposes of artificial insemination, or breast milk to any medical center or breast milk bank that receives breast milk for purposes of distribution, whether he or she is a paid or a volunteer donor, who knows that he or she has acquired immunodeficiency syndrome (AIDS), as diagnosed by a physician and surgeon, or who knows that he or she has tested reactive to HIV. This section shall not apply to any person who is mentally incompetent or whoself-defers his or her blood at a blood bank or plasma center pursuant to subdivision (b) of Section 1603.3 or who donates his or her blood for purposes of an autologous donation.