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Knowingly exposing others to HIV is no longer a felony in California

California Gov. Jerry Brown. (Rich Pedroncelli/AP)
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California lawmakers have passed legislation to reduce the penalty for those who knowingly or intentionally expose others to HIV without their knowledge, rolling back a law that mostly affected sex workers.

The bill, SB 239, which was approved by the Democrat-controlled state legislature in September and signed into law by Gov. Jerry Brown (D) on Friday, will lower the charges for these acts from a felony to a misdemeanor when the law goes into effect in 2018. The act of knowingly donating HIV-infected blood, also a felony now, will be decriminalized.

The statutes that the new laws revise date back to the late 1980s, when AIDS had emerged as a public health crisis in cities such as San Francisco, Los Angeles and New York. Fear and misinformation about the disease’s potential to spread ran high as the authorities struggled to get a handle on the new epidemic and a spate of legislation about HIV exposure cropped up across the country.

Supporters of the reform push in California, which included a broad coalition of public health, LGBT, civil liberties and HIV groups in the state, described the laws as outdated and ineffective, pointing to statistics that showed that the vast majority of convictions were related to sex workers, who are required to undergo testing for HIV after being convicted of crimes such as solicitation.

In the case of the laws around blood donation, research has shown that the law was probably never enforced and probably did little to enhance the screening measures that already exist to identify sources of infected blood.

“If you are a sex worker and you solicit someone and you’re HIV positive, you’re guilty of a felony before any contact occurs,” said California state Sen. Scott Wiener (D), a co-sponsor of the bill. “These laws are so draconian that you can be convicted of a felony and sent to state prison even if you engage in behavior that creates zero risk of HIV infection.”

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Many Republican lawmakers in the state disagreed.

“I’m of the mind that if you purposefully inflict another with a disease that alters their lifestyle the rest of their life, puts them on a regimen of medications to maintain any kind of normalcy, it should be a felony,” said Sen. Joel Anderson (R-Calif.) during debate over the bill, according to the Los Angeles Times. “It’s absolutely crazy to me that we should go light on this.”

The bill has since drawn wide media attention, including particularly critical coverage from conservative media sites.

“Good grief,” wrote the National Review’s Wesley J. Smith. “Leave it to California to make a declining and decadent culture even more declining and decadent.”

Breitbart’s story about the bill, which drew more than 4,500 comments, focused on three cases, in Michigan, California and Scotland, where in each case a man had allegedly attempted to intentionally infect others.

But these types of cases are rare.

Of the 379 HIV-related convictions in California between 1988 and 2014, only seven — less than 2 percent — included the intent to transmit HIV, according to a recent series of studies from the UCLA School of Law’s Williams Institute.

Instead, the law mostly affected sex workers or those suspected of sex work. The vast majority of the convictions — 90 percent — were for solicitation cases where it was unknown whether any physical contact had occurred. When expanded to include the 800 or so people arrested or charged for the laws through 2014, more than 95 percent were related to sex work, the researchers found.

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Statistics showed that the charge was disproportionately levied against women and minorities: 67 percent of the people who came into contact with law enforcement because of HIV-related laws were black or Latino, the Williams Institute studies showed. Women made up 43 percent, though they represent only 13 percent of the HIV-positive population in the state.

That requirement that sex workers get HIV tested after convictions will be abolished when the provisions in the bill take effect.

“At the very beginning, people expected to see most of the weight playing out in those intentional exposure laws,” said Amira Hasenbush, a fellow at the Williams Institute and the co-author of the reports. “I think everyone was surprised to see that wasn’t where the law was being enforced. It was in this felony solicitation.”

The bill was also prompted, its sponsors say, by a 2015 report on combating HIV from the Obama White House, which cited studies showing that HIV exposure laws do little to influence behavior, and said that many “run counter to scientific evidence about routes of HIV transmission and effective measures of HIV prevention.”

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Wiener said he believed that California’s felony HIV laws created a disincentive for some people to get tested, potentially doing more to increase rather than mitigate the public health risk of HIV.

Others in the group of more than 150 to support the bill included the California Medical Association, the district attorneys of San Francisco and Los Angeles, the California Women’s Law Center and the American Civil Liberties Union of California.

Supporters pointed out that the knowing or intentional transmission of any other communicable disease in California, including some potentially deadly ones like SARS, Ebola and tuberculosis, is a misdemeanor crime.

“There’s no reason that HIV should be treated differently,” said Rick Zbur, executive director of Equality California, a LGBT civil rights nonprofit which was a co-sponsor of the bill. “A lot of what was behind this was basically looking at the laws to see how we could improve public health and modernizing these laws, so HIV is treated the same.”

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