USA - California

Last updated on: 17 November 2015

Criminalisation of HIV transmission/exposure

California
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
Min. 10
Number of people convicted: 
Not known
Applicable law: 

Cal. Health and Safety Code § 120291

Any person who exposes another to HIV by engaging in unprotected sexual activity (anal or vaginal intercourse without a condom) 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. A person's knowledge of his or her HIV-positive status, without additional evidence, is not sufficient to prove specific intent.

Cal. Health and Safety Code § 120290

Any person afflicted with any contagious, infectious, or communicable disease who willfully exposes him/herself to another person is guilty of a misdemeanor.

Cal. Health and Safety Code § 1621.5

It is a felony for any person who knows that he or she has HIV to donate blood, body organs or other tissue, semen, or breast milk to any medical center, breast milk bank or semen bank. (Does not apply if person is mentally incompetent, donates blood for autologous donation, or self-defers his or her own blood under Cal. Health & Safety Code § 1603.3(b).)

Cal. Penal Code § 12022.85

Any person who commits a sexual offense listed in this statute with the knowledge that he or she is infected with HIV at the time of commission shall receive a three-year enhancement for each violation in addition to the sentence provided for the sexual offense itself.

Cal. Pen. Code § 647f

Any person who is charged with soliciting or engaging in prostitution under Cal. Pen. Code § 647(b) shall be also charged with a previous conviction(s)and with having been informed of positive blood test result(s) if: (1) the prior conviction(s) was for violating Cal. Pen. Code § 647 or any other offense listed in Cal. Pen. Code § 1202.1(d); (2) the person was tested for HIV in connection with the prior conviction(s) with positive test results; and(3) the person was informed of that positive test result(s). If the previous conviction and informed test results are found to be true by the trier of fact or are admitted by the defendant, the defendant is guilty of a felony.

Key wording in the law: 

Exposes another [via] unprotected sexual activity [and] has not disclosed [and] acts with the specific intent to infect [is] guilty of a felony.

Key Cases: 

In September 2010, a 41-year-old man pleaded guilty to having unprotected sexual activity while knowing he was HIV-positive and acting with the intent to infect his sexual partner. This is the only case on record of anyone ever being charged or convicted under California’s statute. However, the Positive Justice Project lists 10 arrests or prosecutions for California, which suggests other arrests/prosecutions may have taken place under general laws.

Discussion: 

The California State Supreme Court has ruled that people can be sued in a civil court for transmitting HIV to a sexual partner even if they don’t know their HIV status. (Bridget B v. John B. 2006)

California Senate Bill 705, criminalising intentional HIV transmission passed on August 19, 1998.

 

Latest NEWS - November 2105 http://criminalisation.gnpplus.net/news/california-outing-hiv-status-actor-charlie-sheen

Survey respondents/Organisations working on HIV and the Law: 

Information obtained from: Positive Justice Project. Ending & Defending Against HIV Criminalization, A  Manual For Advocates: Vol 1 States and Federal Laws and Prosecutions. Center for HIV Law and Policy, New York. Fall 2010 (with additional laws and cases through December 2011)

Further reading: 

Positive Justice Project. Ending & Defending Against HIV Criminalization, A  Manual For Advocates: Vol 1 States and Federal Laws and Prosecutions. Center for HIV Law and Policy, New York. Fall 2010 (with additional laws and cases through December 2011).

Recent cases can be found at: Positive Justice Project. Prosecutions and Arrests for HIV Exposure in the United States, 2008–2012. Center for HIV Law and Policy, 2012.

Further cases and news can be found at: http://criminalhivtransmission.blogspot.com/search/label/California

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

U.S. President Barack Obama has announced that all current restrictions affecting people with HIV from entering or migrating to the United States are lifted as of January 4, 2010. The final rule was published in the Federal Registry November 2, 2009. It stated: "As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration."New instructions are being provided to panel physicians and civil surgeons who administer medical exams as for immigration purposes, but it may take time until they are all aware of the change, so residency seekers should be prepared. The revised instructions can be found at: www.cdc.gov/ncidod/dq/technica.htm

From January 4, 2010, people living with HIV can enter the U.S. like anybody else.

Guidance on the new rule is published here: http://travel.state.gov/visa/laws/telegrams/telegrams_4631.html and an HIV Travel and Immigration FAQ brochure is available for download in English and Spanish here: http://immigrationequality.org/template.php?pageid=176.

Important note for visitors under the visa waiver program (for countries where a visa is not required to travel to the USA) and are living with HIV, please note that HIV is no longer considered a communicable disease for entry purposes. When submitting the online ESTA form to clear your entry to the U.S., it is important that you do check „no“ for the question about communicable diseases. HIV is no longer considered as such by the U.S. authorities.

Customs regulations require people entering with prescription medication like antiretroviral drugs to carry a doctor’s certificate in English, stating that the drugs are required to treat a personal condition. This requirement applies to all prescription drugs.

Medication should always be carried in hand luggage, as checked luggage may be delayed or get lost. If you are carrying-on liquid medication exceeding 3 ounces / 100 ml, you must declare it at the checkpoint for inspection.For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No law

Female to Female Relationships: Legal

Age of consent: Equal for heterosexuals and homosexuals

Marriage and Substitutes for Marriage: Marriage laws vary in this country depending on area

Is it possible to change your gender on official documents?: Only in some areas
 
Gay or lesbian able to serve in the armed forces: No

For updated information, please go to: http://ilga.org