SAN FRANCISCO — Legislation slated to be introduced this week would update California’s laws criminalizing HIV, which were adopted during the height of the AIDS epidemic in the 1980s, so that a person could not be prosecuted for intentionally transmitting the virus if their sex partner tested negative for HIV, the Bay Area Reporter reports.
Under current law, HIV-positive persons may be prosecuted for engaging in unprotected sexual intercourse with the specific intent to transmit HIV even if no actual transmission of the virus occurs. If convicted, they could be sentenced to up to eight years in prison.
The statutes need to be updated “because people are being prosecuted and incarcerated for no good reason under the existing HIV specific criminal laws in California. It is unjust is the number one reason,” said Scott A. Schoettes, the HIV Project Director at Lambda Legal Defense and Education Fund, in a phone interview last week with the Bay Area Reporter.
AIDS advocates have long contended the laws are outdated and, rather than protect public safety, provide incentives to people to not know their HIV status. Yet for years lawmakers in Sacramento have refused to carry legislation to amend the state’s existing penal codes that target people with HIV, the Reporter article notes.
There are currently four criminal statutes in the state that criminalize the transmission of HIV. The legislation being introduced will not change the penal code that says an HIV-positive person who engages in a nonconsensual sex crime, such as rape, could see three years be added to their sentence, the article said.
But it will address the health and safety code that says it is illegal for an HIV-positive person to donate blood, organs, tissue, semen, or breast milk to an HIV-negative person. If convicted under the statute, they could face up to six years in prison.
The Senate bill would change the statute so it would only be a crime if an HIV-positive person makes such a donation to intentionally infect someone and that person does become HIV-positive. It would make the transmission of HIV through such donations similar to the criminal statutes applicable to all infectious diseases, the Bay Area Reporter reports citing elected officials.
According to a December 2015 study conducted by the Williams Institute, an LGBT think tank at UCLA School of Law, 800 Californians between 1988 and June 2014 came into contact with the state’s criminal justice system due to their being HIV-positive. The study noted that nearly all of the cases, 95 percent, involved people either engaged in or suspected of sex work.
