In the State of California, it's a crime to willfully transmit an infectious disease to someone else under Health & Safety Code 120290 HSC.
This law has primarily been applied to willful exposure to sexually transmitted diseases such as AIDS or HIV. Still, it has recently taken on new meaning with health dangers such as COVID-19.
An “infectious or communicable disease” is described as a disease that spreads from one person to another, directly or indirectly, and has significant public health implications.
The most common examples of infectious diseases are the human immunodeficiency virus (HIV), acquired immunodeficiency syndrome (AIDS), herpes simplex virus (herpes), neisseria gonorrhoeae bacterium (gonorrhea), and chlamydia trachomatis.
The most common conduct posing a substantial risk of transmission is any behavior that could result in a reasonable probability of disease transmission, such as unprotected sex and sharing a needle for drug injection.
Health and Safety Code 120290 HSC says, “(a) (1) A defendant is guilty of intentional transmission of an infectious or communicable disease if they knew they were infected, acted with the specific intent to transmit or cause to transmit that disease, engaged in conduct that poses a substantial risk of transmission to that person, transmits the infectious or communicable disease to another person, and the person exposed did not know that the defendant was afflicted with the disease.”
If you're convicted of a crime under this law, you could face up to 6 months in jail and a fine of up $1,000. Let's review this state law further below.
What Does the Law?
The California Legislature enacted HSC 120290 in response to public health and safety concerns. The law aims to protect individuals from the intentional or reckless spreading of infectious diseases (especially STDs) by others who knowingly expose them to such risks.
HS 120290 effectively makes it a crime to do either of the following:
- To willfully and intentionally transmit an "infectious or communicable disease" by acting in a manner that poses a substantial risk of transmission: OR
- To violate an order by a health officer prohibiting certain behaviors that pose a substantial risk within 96 hours of when the order was given.
Other things to know about this law
For purposes of the law, an "infectious of communicable disease" is a disease spread from "person to person" that has "significant public health implications."
For example, purposely giving someone a head cold wouldn't necessarily be considered a crime because the common cold is not considered a public health risk. Examples of infectious diseases under this law may include, but are not limited to:
HSC 120290 only applies if the victim contracts the disease due to your actions. If you willfully expose someone, but they don't get sick, you can't be convicted under this law because it can't be proven without a reasonable doubt that you attempted to transmit the disease.
Violations include involving a third party in the willful transmission of the disease. In other words, if you are not sick but willfully expose the victim to someone who is, this counts as willful transmission.
What Are the Elements of the Crime?
To convict you under HSC 120290, the prosecution must prove the following elements beyond a reasonable doubt:
- You knew that you were carrying an infectious disease;
- You acted with the intention to transmit that disease to someone else;
- You engaged in conduct that posed a substantial risk of transmission of the disease; and
- The other party contracted the disease.
What Are Some Examples?
Example 1: George finds out he has been diagnosed as HIV-positive. Angry at his diagnosis, he willfully finds a partner and has a one-night stand with them, engaging in unprotected sex to spread the disease. If the partner tests positive for HIV, George can be charged under HS 120290.
Example 2: An individual who has tested positive for a highly contagious virus, like COVID-19, is instructed by healthcare professionals to self-isolate to prevent the spread of the virus. However, this person knowingly and intentionally attends a sizeable social gathering without wearing a mask or practicing social distancing.
Consequently, several attendees contract the virus, leading to a spike in infections within the community. In this case, the individual's actions represent willful exposure, as they consciously disregard public health guidelines and expose others to the risk of infection.
Example 3: Biff is a pimp who knows one of his prostitutes has chlamydia. Still, he purposely convinces a "client" to hire her, contracting the disease. In addition to other possible charges, Biff can be charged with willful exposure because he intentionally used a third party to spread the disease.
Penalties for Violating HSC 120290
Willful exposure to an infectious disease is a misdemeanor offense in California. If you are convicted, you could face:
- Up to 6 months in county jail; and
- A fine of up to $1000.
Also, Penal Code 12022.85 PC has a three-year penalty enhancement for each sex crime by persons with HIV or AIDS, which applies to the following offenses:
- Penal Code 261 PC - Rape;
- Penal Code 261.5 PC - Statutory rape;
- Penal Code 286 PC - Sodomy;
- Penal Code 287 PC - Oral copulation.
What Are the Defenses for HSC 120290?
Suppose you are accused of willful exposure to infectious disease violating California Health & Safety Code 120290 HS. In that case, our Los Angeles criminal defense lawyers can use different strategies to obtain the best possible, as discussed below.
Perhaps we can argue that there was a lack of knowledge. Your attorney may argue that you were unaware you had an infectious disease and could not have willfully exposed others.
Perhaps we can argue that there was a lack of intent. Your attorney may argue that although you knew the risks of your disease, you didn't willfully attempt to give the disease to another person. For example, you were told that you couldn't spread HIV if your symptoms were in remission, so you didn't believe there was a risk of exposure.
Perhaps we can argue there was no transmission of the disease: Regardless of your presumed recklessness, you can't be found guilty under this law if the other party doesn't contract the disease.
Perhaps we can argue that there was consent. If the alleged victim knew of your infectious disease and willingly engaged in activities with you knowing the risk, consent might be a valid defense. You can contact us for a case review by phone or via the contact form. Eisner Gorin LLP is located in Los Angeles, CA.