- SHOUSE CALIFORNIA LAW GROUP - JUL 30, 2021 - Contribuição Ernesto A Matera Veras -
Thanks to California Senate Bill 329, as of January 1, 2017, it is no longer a felony for people who are HIV-positive to have unprotected sex and not disclose their status.
The new California law SB 329 also automatically vacated prior convictions related to:
Non-disclosure of HIV status (former Penal Code 647f), and/or
Felony prostitution convictions based on HIV/AIDS status.
But, it is still possible for someone to file a civil lawsuit for money damages if a partner fails to disclose an STD.
Below, we discuss how the new law SB 329 has changed California HIV law and when someone needs to disclose an STD to a partner.
1. Is it a crime intentionally to infect someone with HIV?
Penal Code 120290 is California’s law on willful exposure to an infectious disease. PC 120290 makes it a misdemeanor to have unprotected sex without telling a partner of an STD – but only if the intention is to infect the other person.
If the person is actually infected as a result of the intentional HIV exposure, PC 120290 can be punished by:
Up to 6 months in jail, and/or
A fine of up to $1,000.
Attempting (unsuccessfully) to transmit an infectious or communicable disease can be punished by up to 90 days in jail.
2. Is non-disclosure still a crime?
SB 329 also added Section 1170.21 to the California Penal Code to negate HIV criminalization laws. Penal Code 1170.21 automatically vacates prior arrests and convictions for these HIV-specific criminal laws:
Non-disclosure of HIV status (former Penal Code 647f), and/or
Felony prostitution convictions based on HIV status.
In a misguided attempt to promote public health issues, encourage HIV prevention, and stop the spread of HIV using criminal laws, former Penal Code 647f made it a felony for someone who knew he or she was HIV positive to have unprotected sex with a partner without first informing the partner.
California law also made it a felony for a defendant who tested positive for AIDS after a prostitution conviction to be convicted of a second prostitution offense.
SB 329 automatically vacated these arrests and convictions. For all legal intents and purposes, they never occurred. This means that people who were arrested, charged or convicted of these counts do not need to disclose them when applying for employment or a California state license.
But anyone currently serving a sentence for such a charge must petition the court to vacate the conviction. Time served will be credited to any related charges on which the defendant was also convicted (such as Penal Code 647b, California’s law on prostitution).
SB 329 was authored by Sen. Scott Wiener and Assemblyman Todd Gloria and was signed into law by then-Governor Jerry Brown. The bill was championed by many Californians in the LGBTQ community, including transgender women and men, people of color, including black men and black women, as well as sex workers. Many Republicans opposed the bill.
There are now very effective treatments for HIV as well as widespread HIV testing. It is no longer the death sentence for HIV-positive people that it used to be.
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