Health and Safety Code 120290 HS makes it a California misdemeanor to:
- willfully expose yourself to another person,
- if you are afflicted with a disease that is:
- infectious, or
The penalty for violating California Health and Safety Code 120290 HS is:
- up to six months in county jail, and/or
- a fine of up to $1,000.2
What diseases are covered by California Health and Safety Code 120290?
By its terms, California Health and Safety Code 120290 applies to all infectious diseases.
However, there are no published opinions by California courts interpreting Health and Safety Code 120290.
It is doubtful that the California legislature intended to make exposing the average person to the common cold a crime.3
But it is likely that the law would apply to any infectious disease with potentially serious consequences.
Civil cases for wrongful exposure to an infectious disease -- in which someone has been sued for damages -- have upheld liability for transmission of:
Such cases have been allowed to go forward when someone:
- has a serious and incurable disease,
- fails to disclose the existence of such disease to a sexual partner,
- does nothing to prevent transmission (such as wearing a condom), and
- can reasonably foresee the potential harm to his/her partner.6
It must be emphasized, however, that these were civil cases. The basis for criminal liability has not been clearly established.
Can I protect myself by not getting tested for infectious diseases?
California Health & Safety Code 120290 makes it a misdemeanor to willfully expose someone to an infectious disease, as these criminal defense lawyers explain.
California Health and Safety Code 120290 does set forth a knowledge requirement. By its terms, it applies when:
- you have a disease, and
- you willfully expose another person to it.
In general, however, California criminal law requires that you at least knew of a potential risk to your victim.7 The test is usually whether a reasonable person in your position would have been aware of the risk involved.8
It is possible, therefore, that a court would hold you liable -- even without a test -- if:
- you had symptoms of a dangerous, infectious disease, or
- you simply knew that you had been exposed to it.9
The difference from Health and Safety Code 120291 – intentional exposure to HIV
California Health and Safety Code 120291 makes it a felony to:
- expose someone to HIV,
- through unprotected sex,
- if you have not disclosed to the person that you have it, and
- you intend to infect that person with HIV.10
The penalty for violating Health and Safety Code 120291 is:
- three, five, or eight years in California state prison.11
Health and Safety Code 120291 applies only to intentional transmission of HIV in California. It also requires proof of intent to infect the other person. This is extremely difficult for the prosecutor to do.12
Therefore, if you have HIV, and you expose your partner to it without disclosure, you are more likely to be prosecuted for a misdemeanor under HS 12090.
There are no published opinions on California Health and Safety Code 120290. Therefore, it is not clear whether consent by your partner to have unprotected sex would be a defense to the law.
In the civil context, however, courts have held that a partner's consent to unprotected sex with someone who has herpes or HIV did not constitute a defense where that partner didn't know the other person has the disease.13
The courts' reasoning has been that consent to unprotected sex is not consent to exposure to the disease.14
However, these cases involved civil liability under different statutes. Whether a court would rule similarly on criminal liability under HS 120290 is unknown.
1. California Health and Safety Code 1621.5 HS – medical donation by a person infected with HIV
California Health and Safety Code 1621.5 makes it a felony to donate:
- organs or other tissue,
- semen, or
- breast milk…
to a medical center, or a semen or breast milk bank, if:
- you know you have HIV or AIDS, and
- such donation is for the purpose of distribution.15
The law does not apply, however, to blood donated for your own possible use.16
The penalty for violating Health and Safety Code 1621.5 HS is:
- two, four, or six years in county jail.
2. California Penal Code 12022.85 – penalty enhancement for sex crimes by persons with HIV or AIDS
Under Penal Code 12022.85 PC, there is a three-year sentencing enhancement if you are infected with HIV / AIDS and you are 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 enhancement adds three additional and consecutive years to any sentence you receive for the underlying crime.
Call us for help...
For more information about California's laws on criminal transmission of an infectious disease, 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 law. 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 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.
2 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.
3 Presumably, however, this could be a crime if someone knew that the victim suffered from a serious illness or condition and a cold could have dangerous consequences. See e.g., Susan L. Sullivan, Common Cold and Chronic Medical Conditions.
4 Doe v. Roe (1990) 218 Cal.App.3d 1538, 267 Cal.Rptr. 564; Kathleen K. v. Robert B. (1984)150 Cal.App.3d 992, 198 Cal.Rptr. 273.
5 In re Louie (Bkrtcy.N.D.Cal. 1997) 213 B.R. 754.
6 See e.g., Doe v Roe (“[P]laintiff contracted genital herpes from defendant… [She] suffered greatly. She came down with 102–degree fever, swollen lymph glands, a sore throat and painful lesions on her genitalia which lasted three weeks. Since the onset of disease, she suffers outbreaks on the average of twice a month, each of which lasts about 10 days. She has undergone humiliation, severe physical discomfort and emotional distress. The disease has put a serious strain on her relationship with her boyfriend and sexual relations between them have drastically decreased both qualitatively and quantitatively. As a result of her contraction of the disease she also suffers an increased risk of cervical cancer and there is a significant chance that any child she bears will have to be delivered by Cesarean section.”).
7 California Penal Code 20 PC: In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.
8 See e.g., People v. Linwood (2003)105 Cal.App.4th 59, 129 Cal.Rptr.2d 73.
9 In addition, the California legislature has made clear that it does not want to punish people for getting tested for HIV. See, e.g., objections to proposed SB 235, bill analysis, April 4, 2005.
10 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.
12 SB 235 bill analysis, endnote 9, comment by then-California senator Jeff Denham: “[HS 120291]… is nearly impossible to prove… [it] 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.”
13 In Re Louie, endnote 5(holding that knowledge of HIV-positive status gives rise to duty of disclosure and fair dealing with sexual partner in a case for civil sexual battery.).
See also Doe v. Roe and Kathleen K v. Robert B., endnote 4.
14 In re Louie, citing Kathleen K. (“[F]ailure to disclose a communicable disease prior to intercourse vitiates consent and turns consensual intercourse into battery.”).
15 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 who self-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.