Willful Exposure to Infectious Disease Including HIV/AIDS: Health and Safety Code Sections 120290 & 120291
The transmission of a communicable disease has always been a threat to public health and safety. With the rise of certain sexually transmitted diseases, California’s legislature began to worry that some people might attempt to purposefully infect others by hiding their disease from their sexual partners. To punish those who do so, California enacted two sections of the Health & Safety Code Sections 120290 and 120291.
The Differences Between Health and Safety Code 120290 and Health and Safety Code 120291
Health and Safety Code 120290: Willful Exposure to Infectious Diseases
Health and Safety Code 120290, is a generalized law that can apply to virtually any infectious disease. This section makes it a misdemeanor for you to willfully expose yourself to another person if you are afflicted with a disease that is contagious, infectious or communicable, or to willfully expose another person who is afflicted with a disease to another person.
Under Health and Safety Code 120290, if you have a contagious disease, it is a crime for you to intentionally act in a manner that places another person at risk of acquiring the contagious disease, whether through sexual transmission or other means.
The law also can be violated via proxy by placing another person with a contagious disease in a situation where he or she could infect others. An example of this might be a parent who knows their child has an extremely contagious condition (such as measles or tuberculosis) and decides to send them to school despite the illness.
This crime does not require that you intended to infect another person. All that is required is that you willfully engaged in activity that you knew or reasonably should have known there was a risk that you could spread the disease to the alleged victim.
Health and Safety Code 120291: Intentional Transmission of HIV
The second section, Health and Safety Code 120291, does require that you intended for the other person to actually become infected with the disease, and it applies to only the transmission of the human immunodeficiency virus (HIV) through sexual intercourse. Under this statute, it is a felony for an HIV-positive person to:
1. Engage in unprotected penile-vaginal sex or unprotected anal sex;
2. With knowledge of his or her positive status;
3. Without disclosing HIV status to a sexual partner; and
4. With the specific intent to infect the other person with HIV.
Under this law, “sexual activity” refers 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.” These sexual acts are considered “unprotected” if a condom is not used.
Sentencing and Punishment for Violating Health and Safety Code 120290 and 120291
A violation of Health and Safety Code 120290 is a misdemeanor in California. If you are convicted, you face a maximum of six months in county jail, and/or a fine of up to $1,000.
A violation of Health and Safety Code 120291 is a felony in California. If you are convicted, you face a sentence of three, five, or eight years in state prison.
In addition, if you are HIV positive, and you commit certain sexual crimes, the court may increase your sentence by an additional three years in state prison according to Health and Safety Code 12022.85. Those crimes include:
Rape (Penal Code section 261);
Statutory rape (Penal Code section 261.5);
Spousal rape (Penal Code section 262);
Sodomy (Penal Code section 286); and
Oral copulation with a minor (Penal Code section 288(a)).
Possible Defenses to Health and Safety Code Section 120290 and 120291
If you have been charged with willful exposure to infectious disease including HIV/AIDS, a skilled criminal defense attorney can raise several defenses on your behalf. These defenses may include:
You did not intend for the other person to become infected with HIV.
The prosecution’s case for Health and Safety Code 120291 will depend on whether the district attorney can prove that it was your intent to infect another person with HIV.
Part of the difficulty is that the word “intent” has not been interpreted by statute or by published court opinions as it applies to this particular law.
In fact, the knowledge that you are HIV positive is insufficient by itself to prove your intent.
You restricted your sexual activity to oral sex.
Health and Safety Code 120291 specifically restricts the meaning of “unprotected sexual activity” to penile-vaginal or penile-anal intercourse that occurs without the use of a condom. Thus if your sexual activity was limited to oral sex or masturbation, you should not be convicted under this law.
You disclosed your condition before engaging in sexual activity.
Under Health and Safety Codes 120290 or 120291, if the exposed person knew of your disease and nevertheless chose to be around you or have sex with you, you may have a defense to these charges. However, your attorney will need to show evidence of this claim.
Frequently Asked Questions Regarding Health and Safety Code 120291
At Wallin & Klarich, we frequently receive questions from those facing sex crimes charges, including the willful exposure to infectious disease and HIV/Aids-related charges. These include:
1. Does the other person have to become infected for either crime to be committed?
No. Under Health and Safety Codes 120290 and 120291, transmission of the disease is not required to establish the crime. The law seeks not just to halt the spread of disease, but also to prevent people from placing others at risk of acquiring HIV or another communicable disease through intentional acts. Under these statutes, the phrase “no harm, no foul” does not apply.
2. Is it a legal defense that I have not been tested for infectious diseases?
It may or may not be a defense to your case that you were never tested for the disease that you are accused of exposing to others. This defense will depend on whether a reasonable person, when placed in your situation, would have been aware that he or she was at risk for having the disease, or whether you were attempting to remain “willfully ignorant” of your condition. However, if you had no reason to suspect that you had been exposed to a disease, you may be able to use this as a defense.
3. Can I be charged for spreading the flu under Health and Safety Code 120290?
In theory, yes, but it is unlikely that a prosecutor will pursue a case for illnesses that are common, such as a cold or the flu. This is true due to the fact that pinpointing the person who gave the illness to someone may prove difficult in those cases.
The courts have yet to publish decisions indicating which diseases are eligible to be prosecuted under these code sections. However, using civil cases as a guide, courts have been willing to find in favor of plaintiffs who brought lawsuits involving viral infections that are serious and incurable, such as herpes or HIV. In those cases, the defendants knew of their condition, failed to disclose it to their sexual partner, took no precautions, and could have reasonably foreseen the risk. It might also be the case that a court will look at the effect the illness had on the victim. For example, if you willfully exposed a person to the flu who had a compromised immune system (such as someone who has AIDS or someone who is elderly), the district attorney may choose to prosecute those cases if the victim suffers death or serious injury.
Though it is not a foolproof indicator of what a criminal court will look for, it is likely that the civil courts may provide a guideline as to what kind of disease you would have to expose others to in order to be prosecuted.
Contact Wallin & Klarich if You Have Been Charged under Health and Safety Code 120290 or 120291
If you are facing charges of willfully exposing another person to an infections disease under California Health and Safety Code 120290 or 120291, your best option is to retain the help of an aggressive and experienced criminal defense attorney. With over 30 years of experience, the attorneys at Wallin & Klarich have the skills and knowledge to successfully defend you. We are committed to providing you with the personal attention you deserve and expect to help you overcome this difficult situation.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in California criminal defense near you, no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.