HIV Criminalization Laws in California

San Jose HIV Criminalization Lawyer And Santa Clara Health Attorney

Living with HIV and the stigma it often presents can be extremely difficult, but further problems can be created by not disclosing HIV-positive status to sexual partners. California law has criminal prohibitions against nondisclosure of HIV status to sexual partners in some circumstances, including criminal penalties for intentional exposure of sexual partners to HIV and sentence enhancements for committing sex crimes while HIV-positive. These crimes and sentence enhancements do not require the transmission of the virus, so even if a defendant has an undetectable viral load, he or she may still suffer the prescribed penalties.

Exposure to HIV

California criminalizes the exposure of another to HIV with the intent to transmit the virus. To be convicted of this specific crime, a defendant must:

• Know of his or her HIV-positive status;
• Have the specific intent to infect—mere knowledge is not good enough;
• Engage in unprotected sexual activity with a sexual partner, meaning intercourse without a condom; and
• Not disclose his or her HIV-positive status to the sexual partner.

Intentional exposure is a felony in California, and is punishable by three, five, or eight years’ imprisonment.

Sex Crimes

Those who commit nonconsensual sex crimes while HIV-positive will be penalized with a sentence enhancement of three years. If a defendant knows that he or she is HIV-positive and commits rape, statutory rape, spousal rape, sodomy, or oral copulation, there is a three-year sentence enhancement in addition to the sentence received for the base offense.

Blood or Organ Donation

California also criminalizes the donation of blood, organ, tissue, semen, or breast milk while HIV-positive, which is a felony, punishable by two, four, or six years’ imprisonment. The law requires that the donor knows that he or she has acquired AIDS or has been tested reactive to HIV. It applies whether the donor is paid or is a volunteer.

Exposure to Communicable Disease

The willful exposure of another to a communicable disease is a misdemeanor in California. It includes willfully exposing oneself to another or willfully expose an infected person to another.

Effect of HIV Criminalization Laws

While California’s HIV-criminalization laws were enacted with the purpose of protecting the public from the spread of HIV, they can often have the opposite effect. Because all the crimes require that a person know of his or her HIV-positive status to be convicted, this can discourage testing. Thus, people unaware of their status spread the virus and fail to obtain treatment for themselves.

If you are facing charges for violating any of California’s HIV statutes, an attorney can help to protect your rights. Please call skilled San Jose criminal defense attorney Wesley Schroeder at 408-277-0377 for a free initial consultation. Attorney Schroeder will sit down with you soon and discuss with you your legal options.

Source:

http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC&sectionNum=120291.