Why California HIV Disclosure Laws are a Threat to Public Safety (California Health and Safety Code Section 120291)

It is difficult to live with HIV and the negative stigma that comes with it. Telling someone you are HIV positive is not easy. However, you could be facing criminal charges if you fail to inform a partner that you are HIV positive due to harsh California HIV disclosure laws.

If you are being charged with a criminal offense for failing to disclose your HIV status, let the experienced criminal defense attorneys at Wallin & Klarich help you.

Man Sentenced to 25 Years in Prison for Not Disclosing He Had HIV

Nick Rhoades, an Iowa man, is HIV positive. In June 2008, he had a one-time sexual encounter with another man. Rhoades was on medication and his viral load was undetectable at the time, meaning the virus could not be transferred. He says he also wore a condom.

However, Rhoades did not tell the man that he was HIV positive – a fact he felt was not necessary to disclose to a one-time partner who was not actually being put at risk of obtaining HIV. When the man found out Rhoades carries the virus, he went to the hospital to get tested. The hospital informed the police and Rhoades was arrested three months later.

Rhoades plead guilty to criminal transmission of HIV, a felony in the same category as manslaughter, drug crimes and robbery in Iowa. In 2009, Rhoades was sentenced to 25 years in prison. His sentence was later reduced to time served plus five years of supervised probation. He is also required to register as a sex offender for the rest of his life.

What Happens if You Test Positive for HIV in California?

In California, state law requires that care providers or clinics forward all HIV positive patient tests to a local health officer, who then reports the case to the California Department of Public Health.

These records can never be released, even in a criminal trial. If you willfully disclose a patient’s confidential HIV testing information to a third party, you can be charged with a misdemeanor.

California HIV Disclosure Laws and Transfer Laws

Pursuant to California Health and Safety Code section 120291(a),

“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.”

While Iowa has strict HIV disclosure laws, California HIV disclosure laws require that you had specific intent to transfer HIV in order for you to be convicted of a crime. In California, it is not illegal for persons who are HIV positive to engage in sexual activity with a partner without first disclosing their status.

Essentially, you can be convicted of a felony in California only if you engage in sexual activity and you meet the following requirements:

• The sex is unprotected (without the use of a condom or other protection);
• You are HIV positive;
• You are aware that you carry HIV at the time the unprotected sex occurs;
• You have not disclosed your status as HIV positive to your partner; and
• You act with the intent to infect your partner.

If You Don’t Get Tested, You Can’t Be Convicted Of a California HIV Disclosure Law

You must be aware that you are HIV positive in order to be convicted of a crime in California, as is the case in most states with HIV criminalization laws. If you are unaware that you carry HIV, you cannot be convicted of a crime.

In California, mere evidence that you know you are HIV positive before engaging in sexual activity is not enough to convict you of a crime. However, you can be convicted for failing to disclose you have HIV to a partner in states with stricter HIV criminalization laws.

In a recent study, the National HIV Criminalization Survey found that 25% of HIV positive respondents reported knowing at least one individual who refused to get tested for fear of criminal prosecution. The study also found that 58% of transgender people believe it is reasonable to avoid testing for fear of prosecution. HIV disclosure laws are preventing many individuals from getting tested for HIV, posing a threat to public safety.

Call Wallin & Klarich Today

If you are facing criminal charges for violating Health and Safety Code 120291, you should contact the skilled and knowledgeable criminal defense attorneys at Wallin & Klarich today. Our attorneys have over 40 years of experience successfully defending our clients facing criminal charges.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Southern California criminal defense attorney at Wallin & Klarich near you no matter where you are located.

Call us at today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.