Senator Scott Wiener (D-San Francisco) and Assemblymember Todd Gloria (D-San Diego), Introduced by Senate Bill 239 which would amend California’s HIV criminalization laws to make them consistent with statutes for other serious communicable diseases. It would also bring the laws up-to-date with the current understanding of HIV prevention, treatment and transmission.
Currently, it is a felony in California to knowingly infect someone with HIV, regardless of whether the sexual encounter was consensual. Rape and sexual assault charges are also enhanced if the perpetrator knowingly committed those crimes while HIV-positive.
Because this is the only penalty of its kind for a sexually transmitted disease, some health activists claim that it is a relic of the AIDS crisis and unreasonably singles out HIV-positive people.
According to California Health and Safety Code section 120291(a), actual infection does not need to occur for a crime to be committed.
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.
“These laws are discriminatory, not based in science, and detrimental to our HIV prevention goals,” said Wiener. “They need to be repealed.”
Dan Avery of NewNowNext reports "Nick Rhoades, an HIV-positive man in Iowa, was sentenced to 25 years in prison —and had to register as a sex offender—for not telling a partner he carried the virus, even though his viral load was undetectable, he wore a condom, and his partner did not contract the virus. (Iowa finally amended it statues in 2014, allowing Rhoades’ record to be wiped clean.)"
Additional ramifications of the existing law include the discouragement of getting tested. In a recent survey, investigators found that 25% of HIV-positive respondents knew at least 1 person who refused to get tested for fear of criminal prosecution, according to NewNowNext. Furthermore, 58% of transgender individuals believed it is reasonable to avoid getting tested for fear of prosecution.“These laws are discriminatory, not based in science, and detrimental to our HIV prevention goals,” said Wiener, as reported by NewNowNext. “They need to be repealed.“It’s time to move beyond stigmatizing, shaming, and fearing people who are living with HIV. It’s time to repeal these laws, use science-based approaches to reduce HIV transmission, and stop discriminating against our HIV-positive neighbors.”