Do I have to tell a sexual partner that I am HIV-positive in California?

Thanks to California Senate Bill 239, it is no longer a felony to have unprotected sex and not disclose that you are HIV-positive.

California law SB 239 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.

However, it is still possible to be sued for monetary damages if you failed to disclose an STD to your partner.

Below, we discuss how the new law SB 239 has changed California’s HIV law and when you need to disclose an STD to a partner.

• 1. PC 120290 – intentionally trying to infect someone with HIV
• 2. Is non-disclosure still a crime?
• 3. Is there mandatory HIV-education for prostitution convictions?
• 4. Can I be sued for not disclosing my HIV-positive status to a partner?
• Additional resources

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 only if your intention is to infect the other person.

If the person is actually infected as a result of your intentional HIV exposure, you 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 239 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 to have unprotected sex with a partner without first informing them you were HIV-positive.

California law also made it a felony to be convicted of a second prostitution offense if you tested positive for AIDS after a prior prostitution conviction.

SB 239 automatically vacated these arrests and convictions. For all legal intents and purposes, they never occurred. This means that if you were arrested, charged or convicted of these counts, you do not need to disclose them when applying for employment or a California state license.

If you are currently serving a sentence for such a charge, you must petition the court to vacate the conviction. Time served will be credited to any related charges on which you were also convicted (such as Penal Code 647b, California’s law on prostitution).

SB 239 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.

3. Is there mandatory HIV-education for prostitution convictions?

Under California’s HIV law prior to SB 239, if you were convicted of a first offense for prostitution or soliciting prostitution, you were required to take an AIDS education course about HIV transmission.

Though following the enactment of SB 239, you no longer need to do so following a first-time conviction.

4. Can I be sued for not disclosing my HIV-positive status to a partner?

California law allows a plaintiff to sue for damages if:

1. You owed the plaintiff a legal duty of care,
2. You were negligent, and
3. As a result of your negligence, the plaintiff suffered damages.

There is also a “negligence per se” law in California. Under this law, you are liable in a civil lawsuit when:

1. You violated a statute, ordinance, or regulation;
2. The violation caused death or injury to a person or property;
3. The death or injury resulted from an act the statute, ordinance, or regulation was designed to prevent; and
4. The person who suffered the death or the injury was a member of a group the statute, ordinance, or regulation was designed to protect.

Sexual partners are members of the group that Penal Code 120290 is trying to protect.

However, you violate Penal Code 120290 only when you intentionally try to infect a partner. So you will usually not be liable under a theory of negligence per se.

This means that in most cases, a plaintiff would have to prove actual negligence by a preponderance of the evidence.

You might be negligent for infecting a partner with HIV if:

1. You knew you had AIDS or was HIV-positive;
2. You were negligent in not disclosing your status and/or not using a condom or dental dam; and
3. As a result of that negligence, the plaintiff acquired the disease through the transmission of HIV and suffered damages  (such as medical bills and/or pain and suffering).

Additional resources

For more information, refer to the following:

• AIDSVu California: Statistics about HIV prevalence and prevention in California maintained by Emory University’s Rollins School of Public Health in partnership with Gilead Sciences, Inc. and the Center for AIDS Research at Emory University (CFAR).
• Office of AIDS (OA) – Part of the California Department of Public Health dedicated to combating the HIV/AIDS epidemic.
• HIV-Specific Criminal Laws: California – Information provided by the Center for HIV Law and Policy (CHLP).
• HIV Prevention: California – Flyer provided by the Centers for Disease Control and Prevention (CDC).
• California HIV Surveillance Report – Comprehensive study by the California Department of
  Public Health, Center for Infectious Diseases, Office of AIDS.