If you willfully pass a sexually transmitted disease, such as human immunodeficiency virus (HIV), onto another person, you could be convicted of a crime. Under California Health and Safety Code Sections 120290 and 120291, it is illegal to intentionally or by unlawful carelessness expose someone to HIV. Depending on what circumstances you transmit HIV to another person, you could face misdemeanor or felony charges for committing this crime.
Willful Exposure to Infectious Disease (HS 120290)
Under HS 120290, the manner in which you expose the disease to another does not have to be sexual. For example, if you have HIV and share a needle with another person, you could be found guilty of this crime.
Further, to be convicted of this crime, you did not have to intend to transmit your disease. All that is required is that you knew of the possible risk. For example, if you have HIV and have unprotected sexual intercourse with another person, you may be in violation of Section 120290 even though you did not intend for the other person to contract HIV.
This crime is a misdemeanor in California. If you are convicted of this crime, you face up to six months in county jail and a fine of up to $1,000.
Intentional Transmission of HIV (HS 120291)
HS 120291 differs from HS 120290 in the following ways:
- HS 120291 is particular to HIV, while HS 120291 covers all communicable diseases.
- This law requires that you intended to infect someone with HIV. This means you wanted to infect the victim with HIV.
In order to be prosecuted under HS 120291, all of the following must apply:
- You engaged in unprotected sexual activity;
- You knew you were infected with HIV at the time;
- You did not tell the other person about your HIV-positive status; and
- You acted with specific intent to infect the other person
This crime is a felony that carries a sentence of three, five or eight years in state prison.
What is the Difference between “Willfully” and “Specific Intent”?
Although both terms generally refer to an act done on purpose, when it comes to HS 120290 and 120291, the difference is in which act occurred. For the purposes of HS 120290, if you have willfully transmitted HIV, you have allowed the conditions required for HIV infection (i.e. you had unprotected sex) and carried it out with full knowledge of the possibility of infecting the other person. The deliberate act in this case is engaging in sexual intercourse and putting your partner at risk.
For the purposes of HS 120291, transmitting HIV with specific intent means the ultimate reason to have sex was to infect the other person with HIV. The deliberate act in this case is transmitting the virus to your partner.
What Qualifies as “Unprotected Sexual Activity”?
HS 120291(b)(1) limits sexual activity to “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.”
This means that engaging in other kinds of sexual activity, such as oral sex, cannot be prosecuted under this section.
Contact Wallin & Klarich if You Are Accused of Unlawfully Giving Someone HIV
At Wallin & Klarich, we have been successfully defending our clients accused of sex crimes for over 30 years. We can help you, too. Our skilled attorneys are confident that we can help you achieve the best possible outcome in your case.
With offices in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville there is a skilled Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.
Call us at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.