Getting Tested for HIV Could Save Your Life, So Why Should it Make it Easier to Convict You of a Crime in California? (Health and Safety Code 12029)
Recently, we posted a blog regarding HIV disclosure laws in California. In that blog, we discussed a recent study indicating that as many as 25% of adult males in California neglect to get tested for HIV. The reason for this is because they fear that they could face criminal charges once they know they are carrying the virus under California Health and Safety Code Section 120291.
Contrary to popular belief, it would be very difficult for you to be successfully prosecuted for having “sex” with someone if you do not tell them you are HIV positive. When this low risk of conviction is leveled against being tested for HIV, the decision is clear: You need to get tested. Early detection of the virus will drastically increase your chances of a long and healthy life.
CA HIV Disclosure Laws (Health and Safety Code Section 120291)
California Health and Safety Code Section 120291 lays out specific requirements that the prosecutor must prove beyond a reasonable doubt in order for you to convicted of violating HIV disclosure laws, including:
l. You need to have engaged in “sexual activity” with the victim.
The statute clearly defines “sexual activity” for the purpose of this crime as vaginal intercourse or anal intercourse between two men. This means that all other kinds of sexual activity with a person can not be subject to prosecution under this statute.
II. You need to have engaged in unprotected sex with the victim.
HS 120291 also makes clear that if you use a condom during vaginal or anal intercourse, you are exempt from being convicted of this crime.
If you fail to disclose to a sexual partner that you are positive for HIV and you had anal or vaginal intercourse without the use of a condom, you still cannot be convicted of this crime unless the prosecutor can prove that you had the specific intent to transfer HIV to your sexual partner.
This is an extremely difficult element for the prosecutor to prove. People engage in sexual activity because it is pleasurable. The reason people engage in consensual sexual intercourse is because they enjoy it. Both parties normally receive some degree of sexual satisfaction from doing so. The “intent” of the parties is not to injure but to give and receive enjoyment.
Unless the alleged victim in a prosecution for this crime were to have clear evidence (such as a written or taped audio document in which the defendant admitted that they engaged in unprotected sexual intercourse for the specific purpose of transmitting HIV to their partner), it would be extremely difficult for a person to be convicted of this crime in California.
Is Your Life More Valuable than a Low Risk of Facing Criminal Charges?
In a perfect world, we would hope that everyone who knows they are HIV positive would share that information with a sexual partner before engaging in unprotected sexual intercourse. In reality, the stigma associated with a positive HIV diagnosis makes it difficult for disclosure to be made.
Being tested for HIV can supply you with the knowledge you to need to obtain the medical help to allow you to likely live a long and productive life. To refuse to be tested for fear that you will be prosecuted for a crime is a very unwise decision.
Wallin & Klarich urges everyone who fears they may be HIV positive to be tested now. One way or another you will obtain vital information you need to help plan your future.
Of course, we also need to point out that so long as you practice “protected” sexual intercourse you will be helping both yourself and your sexual partner(s) be safe.
