Does Having Sex When HIV Positive Make You a Sex Offender?
Are people who are HIV positive required to disclose their status when engaging in sex? Yes, in fact, it is illegal in 35 states, including California, for an HIV positive person to engage in sex with the intent to spread HIV to another . A recent case illustrates an example of this.
Nick Rhoades and Adam Plendl engaged in consensual sex in 2008. After finding out that Rhoades might be HIV-positive, Plendl contacted authorities. Fortunately, Plendl did not contract the HIV virus from Rhoades. However, Rhoades was still charged with criminal transmission of HIV under Iowa law.
Criminal transmission of HIV carries a 25-year prison sentence in Iowa. Rhoades plead guilty on the advice of his lawyer. His 25-year sentence was commuted to five years of probation, although he did spend several months in jail and was required to register as a sex offender.
Rhoades’s conviction was eventually overturned. It was unclear whether he had actually exposed Plendl to the HIV virus. Even if he had, the Court of Appeals felt that it could not be proven that he did so intentionally. Following the Court’s decision, Iowa changed its criminal transmission law. Even if a person is convicted of a criminal transmission, he or she does not have to register as a sex offender.
California has adopted a similar approach to criminalizing HIV transmission. Let’s take a look…
California HIV Criminal Law (California Health and Safety Code Section 120291)
Under California Health and Safety Code Section 120291, it is illegal to intentionally expose someone to HIV by engaging in unprotected sexual activity. This includes anal or vaginal intercourse without the use of a condom. If you do not tell the other party that you are HIV positive with the specific intent to infect him or her, you are violating Health and Safety Code Section 120291.
In order to be found guilty of this offense, the prosecution must prove:
- That you are HIV positive and you are aware that you have the virus;
- You exposed the other party to the virus by having unprotected sex with him or her;
- You did not tell the other party that you had HIV; and
- You had the specific intent to infect the other party.
If the other person did not become infected with the disease, you can still be found guilty if you met these conditions. However, simply having HIV and knowing you have HIV before engaging in unprotected sex is not enough to be convicted of this crime. There must be evidence that you acted specifically to infect the other person.
Will You Be Required to Register as a Sex Offender?
If you are found guilty of intentionally transmitting HIV to another person through 
unprotected sex, it is a felony. A conviction for this crime is punishable by up to eight years in state prison. However, California law does not require you to register as a sex offender if you are found guilty of this crime.
You are only required to register as a sex offender if you commit one of the sexual offenses listed under Penal Code Section 290. A skilled attorney can help you understand which sexual offenses require you to register and how this may affect your future.
Call the Criminal Defense Attorneys at Wallin & Klarich Today
If you are facing allegations of intentionally transmitting HIV through unprotected sex, the consequences can be damaging to your future. This is why it is absolutely essential that you seek help from a knowledgeable attorney. With over 30 years of successful experience defending our clients accused of sex crimes, our team of attorneys at Wallin & Klarich are available to help you move forward with your life with the best legal outcome.
With offices located in Orange County, San Bernardino, Los Angeles, Torrance, Riverside, West Covina, Victorville, Ventura, San Diego and Sherman Oaks, one of our skilled attorneys is available for you, no matter where you live.
Call us at (877) 4-NO-JAIL or (877) 466-5245 to discuss your case. We will help you get through this.
