Health & Safety Code 120290 HS – Intentional Transmission of an Infectious Disease

California Health and Safety Code 120290 HS makes it a crime when one person intentionally transmits an infectious disease to another person. A conviction is a misdemeanor punishable by up to 6 months in jail and fines of up to $1000.00.

120290 HS states that:

“(a) (1) A defendant is guilty of intentional transmission of an infectious or communicable disease if all of the following apply:

(A) The defendant knows that he or she or a third party is afflicted with an infectious or communicable disease.

(B) The defendant acts with the specific intent to transmit or cause an afflicted third party to transmit that disease to another person.

(C) The defendant or the afflicted third party engages in conduct that poses a substantial risk of transmission to that person.

(D) The defendant or the third party transmits the infectious or communicable disease to the other person.

(E) If exposure occurs through interaction with the defendant and not a third party, the person exposed to the disease during voluntary interaction with the defendant did not know that the defendant was afflicted with the disease. A person’s interaction with the defendant is not involuntary solely on the basis of his or her lack of knowledge that the defendant was afflicted with the disease.”

Examples:

• knowingly transmitting herpes to a sexual partner.
• transmitting HIV via sharing a needle for drug injection.
• intentionally transferring COVID-19 to others after testing positive.

Defenses

A defendant can fight a 120290 HS charge with a legal defense. A few common defenses are:

• no knowledge of infectious disease,
• no intent to transmit, and/or
• no transmission.

Penalties

A violation of this law is a California misdemeanor (as opposed to a felony or an infraction).

The crime is punishable by:

• imprisonment in county jail for up to six months, and/or
• a maximum fine of $1,000.

Our California criminal defense attorneys will highlight the following in this article:

• 1. When is exposure to an infectious disease a crime in California?
• 2. Are there legal defenses?
  • 2.1. No knowledge of an infectious disease
  • 2.2. No intent to transmit
  • 2.3. No transmission
• 3. What are the penalties for willful exposure to a disease?
• 4. Are there immigration consequences?
• 5. Can a person get a conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. Are there related offenses?
  • 7.1. Medical donation by a person infected with HIV – HS 1621.5
  • 7.2. Penalty enhancement for sex crimes by persons with HIV or AIDS – PC 12022.85
  • 7.3. Sexual battery – PC 243.4

1. When is exposure to an infectious disease a crime in California?

Health and Safety Code 120290 HS is the California law that makes it a crime for a person to intentionally transmit an infectious disease.

A prosecutor must prove four things to convict a person under this statute. These are that the defendant:

1. knew that he, or a third party, had an infectious or communicable disease,
2. acted with the intent to transmit, or cause a third party to transmit, that disease to another person,
3. engaged in “conduct that posed a substantial risk of transmission” to another person, and
4. transmitted (either by his own actions or those of a third party) the disease to the other person.¹

An “infectious or communicable disease” means a disease that:

• spreads from person to person (either directly or indirectly), and
• has a significant public health implication.²

Examples include:

• HIV,
• AIDS,
• herpes,
• gonorrhea, and
• chlamydia.

“Conduct that poses a substantial risk of transmission” means an act that has a reasonable probability of disease transmission.

Examples include:

• unprotected sex, and
• sharing a needle for drug injection.

2. Are there legal defenses?

A defendant can raise a legal defense to challenge a charge under this law.

Three common defense strategies are:

1. no knowledge of infectious disease,
2. no intent to transmit, and/or
3. no transmission.

2.1. No knowledge of infectious disease

A person is only guilty of an HS 120290 charge if he knew that he had an infectious disease. This means it is a legal defense for an accused to show that he did not have this knowledge.

2.2. No intent to transmit

Recall that under California STD laws, it is only a crime if one intentionally transmits a disease.

The law states that a defendant does not act with this intent if he takes, or attempts to take, practical means to prevent transmission (like wearing a condom during sex).³

Therefore, an accused can fight an HS 120290 charge by showing that he did not act with a specific intent to transmit.

2.3. No transmission

A defendant is only guilty of violating this law if there was, in fact, a transmission of an infectious disease. An accused, then, can try to show his innocence by proving that there was no transmission.