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Lawmakers Look to Downgrade Criminal Statute on Transmission of HIV

Apr 24, 2017

Shaheen Manshoory

Reports of sex crimes are filed with police every day, and each individual accused of such a crime is entitled to representation by a criminal defense attorney. Generally, though, sex between two consenting adults should be a private act that is free from regulation by the government. However, the State feels there is a greater interest involved when one partner fails to disclose to the other that he/she is positive for the human immunodeficiency virus (HIV).

Because infection with HIV brings the possibility of early death, the government believes that withholding this information from a potential partner unfairly exposes them to this serious condition without permission. There is still a significant stigma associated with HIV that goes back to the early days of its discovery in the 1980s, which makes those that suspect or know they carry this virus understandably reluctant to discuss it with others.

Some lawmakers in the state legislature want to remove some of the negativity linked with HIV by reducing several HIV-based criminal offenses from felonies to misdemeanors in hopes of encouraging more people to get tested and seek treatment. In addition to HIV, knowingly exposing a sexual partner to other sexually transmitted diseases (STDs) is also a criminal offense. Understanding how the government treats this issue is important for both past and future sexual encounters.

A discussion of the criminal laws related to exposing others to STDs and HIV, as well as the proposed legislation, will follow below.

Current Law on HIV/STD Exposure

Under California Health and Safety laws, it is a misdemeanor for someone carrying any “contagious, infectious or communicable disease,” which includes commonly-known STDs, to intentionally expose him/herself to the public. HIV, on the other hand, is treated much more harshly.

Knowingly exposing a sexual partner to infection with HIV without their knowledge and with the intent to infect is charged as a felony, and brings potential sentences of three, five, or eight years in State prison. Importantly, knowing one is HIV positive is not enough to convict a person of this offense if the intent to infect another person is not also proven.

Common defenses to this charge are the person did not know they were HIV positive when he/she engaged in the sexual intercourse or that the accused lacked the intent to infect the other person.

Proposed HIV Legislation

The proposed legislation would reduce the offense of intentionally exposing another to infection with HIV to a misdemeanor punishable by no more than six months in county jail. The bill specifically amends the law so that the intentional transmission of an infectious or communicable disease falls under one provision and eliminates the separate felony offense for HIV transmission completely.

In particular, a person would be guilty of this misdemeanor offense if all of the following are true:

  • the defendant knows they are infected with a communicable disease;
  • the defendant acts with the intent to spread it to another person; and
  • the other party is infected with the disease.

Noteworthy is the fact that not knowing about the possible exposure to a communicable disease prior to sexual interaction does not automatically make it involuntary, and an intent to spread the disease does not exist if the defendant took steps to prevent it, i.e., wearing a condom.

Hire a Criminal Defense Attorney

Being charged with a sex-related crime can ruin your life, so aggressively combating these accusations from the beginning is essential. Manshoory Law Group, APC is committed to vigorously defending clients against these charges to mitigate the devastating consequences.

If you are facing a sex crime and live in the Los Angeles area, contact the Manshoory Law Group right away to start taking control of this serious situation. Attorneys are available 24/7, and offer free consultations in all cases.

Shaheen Manshoory
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