Updated: Dec 14, 2020
California law that makes it a crime for a person to intentionally transmit an infectious or communicable disease to another person; this includes diseases like AIDS (HIV), Covid19 (Coronavirus), Herpes, and more. The following is a brief overview of the law, punishment, and defenses applicable to a criminal charge of willful exposure to an infectious or communicable disease (HS 120290).
Note: An infectious or communicable disease means a disease that spreads from person to person, directly or indirectly, such as herpes, gonorrhea, chlamydia, Covid19 (coronavirus), etc.
According to HS 120290, a defendant is guilty of willful transmission of an infectious or communicable disease if all of the following apply:
The defendant knows that she, or a third person, is infected with an infectious or communicable disease
The defendant specifically intends to transmit, or cause another person to transmit, the infectious or communicable disease to another person
The defendant, while having the specific intent to transmit, or cause another person to transmit, the infectious or communicable disease, engages in conduct that poses a substantial risk of transmission of the infectious or communicable disease to another person.
The defendant actually transmit the infectious or communicable disease that she intended to transmit.
Example: An example of willful exposure to an infectious or communicable disease includes: A defendant engaging in sexual intercourse with someone for the purpose of transmitting the herpes disease to the victim, and where the victim is actually infected with the herpes disease because of the defendant’s conduct. Of course, this example presumes the victim did not know that the defendant was infected with the herpes disease.
Example II: Another example of willful exposure to an infectious or communicable disease includes a situation where the defendant intentionally coughs on another person with the intent of spreading an infectious disease to the victim, such as Covid19 (coronavirus), and where the victim is actually infected with Covid19 because of defendant’s conduct.
Attempted Transmission: In cases where the defendant attempts to transmit an infectious disease to another person, but the defendant is unsuccessful in her effort, the defendant may be charged under an attempted transmission theory. Attempted transmission of an infectious of communicable disease carries less penalties than successful transmission with the same intent (See Penalties for HS 120290 below).
Gross Negligent Transmission: In some cases, the defendant could be criminally liable under HS 120290 even she does not know for certain that she is infected with a disease, so long as her conduct that lead to the transmission of the disease was grossly negligent. In other words, there is no defense where the defendant remains willfully ignorant of the fact that there is a substantial risk that she is infected with a disease and she acts with gross negligence in spreading that disease. For example, a prostitute who engages in many acts of unprotected sex with multiple partners, and who spreads the herpes disease to victims by way of her unprotected and reckless sexual conduct, could be charged under HS 120290, despite the fact that the prostitute is not certain that she carries the herpes disease. The prostitute’s reckless conduct in this situation could lead to criminal charges of exposing another person to an infectious or communicable disease.
Note: For gross negligent transmission of an infectious or communicable disease, the district attorney must prove that the defendant engaged in ‘conduct that poses a substantial risk of transmission of an infectious or communicable disease.’ This means an act that has a reasonable probability of transmitting the disease. The reasonable person standard is used for this purpose. In other words, if a reasonable person in the same or similar circumstance would conclude that there is a substantial probability that her conduct would lead to the transmission of a disease, then she has violated the reasonable person standard. For example, unprotected sex by prostitutes, or the sharing of needles by frequent drug users, likely amounts to conduct that poses a substantial risk of transmission of an infectious or communicable disease, such as AIDS (HIV) or other sexually transmitted disease (STD).
HS 120290 Penalties
Jail: HS 120290(a)(1), willful transmission of an infectious or communicable disease, is classified as a misdemeanor (exception for willful exposure to AIDS (HIV) [See below]. If found guilty of willfully exposing another person to an infectious or communicable disease the defendant could face up to one hundred eighty days (180) in jail. If the defendant attempted to spread a disease, but the defendant was not successful in that attempt, then she may be charged with attempted willful exposure of an infectious or communicable disease under the same statute; however, the jail term for attempted HS 120290(a)(1) is up to ninety (90) days maximum).
HS 120290(a)(2), gross negligent transmission of an infectious or communicable disease, is classified as a misdemeanor. If found guilty of HS 120290(a)(2), the defendant could face up to one hundred eighty (180) in the county jail (Same as HS 120290(a)(1).
Prison: If the defendant intentionally transmits AIDS (HIV) then the defendant may be charged with the crime of intentional transmission of AIDS (HIV) [HS 120291(a)]. A conviction for HS 120291(a) may be punished with prison term of up to eight (8) years.
Note: If the defendant commits a sex act without consent, and the victim is infected with AIDS (HIV), then the defendant could be charged with a criminal enhancement that adds up to three (3) years of prison. This three year prison enhancement is in addition to the sentence imposed for the underlying sex act (PC 1202.85).
HS 120291(a) v. 1202.85: The difference between the intentional transmission of AIDS (HIV), which is charged under HS 120291(a), and PC 1202.85, is that HS 120291(a) is charged when there is intentional transmission of the AIDS (HIV) via consensual sexual intercourse, whereas PC 1202.85 is charged when there is transmission of AIDS (HIV) through non-consensual sex, such as rape, unlawful sexual intercourse, sodomy, etc., regardless of the defendant’s intent to spread the disease.
Note: Theoretically, a defendant who intentional spreads the infectious disease of Covid19 (coronavirus) to another person, with the intent that the victim be killed by the disease, could be charged with murder or manslaughter; however, as of this writing, there are no known cases of intentional Covid19 transmission leading to murder or manslaughter charges.
Probation Sentence: A probation sentence is a term of supervision in lieu of jail. A probation sentence is allowed in HS 120290 cases, but a probation sentence, without jail, it is not guaranteed. Probation sentences, if offered, usually include work release or house arrest as a condition of probation. Probation sentences in HS 120290 cases are deemed summary, or informal; this means that the court monitors the defendant’s probation performance, as opposed to a probation officer. Failure to obey the probation terms can lead to a violation of probation.
Good Behavior Credit: If the defendant is ordered to serve a jail or a work release sentence as part of a probation sentence, then the defendant is entitled to have that sentence reduced by up to fifty percent (50%) for good behavior while in jail or while on work release (HS 120290 & PC 4019).
Firearm Rights: A conviction of willful exposure to an infectious or communicable disease is not a crime that should affect the defendant’s right to own or possess firearms; however, gun law charges rapidly in California and the defendant should seek the advice of a criminal defense lawyer on this issue before pleading guilty or no contest to HS 120290.
Note: HS 120290 is not a strike offense in California, as the crime is neither a serious offense, nor a violent offense, as those terms are defined under California law. In addition, there is no case law that determines whether or not HS 120290 is classified as a crime involving moral turpitude (CIMT). A crime involving moral turpitude is a crime that involves deceit or is otherwise morally wrong. Because HS 120290 is an intentional wrongdoing, it is probably safe to assume that HS 120290 would be treated as a CIMT for immigration consequences and professional licensing consequences related to criminal conduct.
More Penalties: In addition to any jail or probation sentence, if found guilty of willful exposure to an infectious or communicable disease, the defendant may suffer and or all of the following penalties: employment loss, professional licensing issues (doctor, dentist, nurse, lawyers, etc.), immigration issues (for non-US citizens), restraining orders or criminal protective orders in favor of the victim, fine and fees, loss of the right to enroll in, or remain in, the military (Space Force, Army, Air Force, Navy, Coast Guard, Marines, Merchant Marines), and more.
HS 120290 Defenses
There are many traditional defenses to a criminal charge of willful exposure to an infectious or communicable disease that might apply to a particular set of facts, such as statute of limitations, coerced confession, alibi, etc.; however, most defenses surrounding HS 120290 include the defense of insufficient evidence.
Insufficient evidence simply means that the prosecutor cannot prove every element of the criminal charge against the defendant. For example, in a typical HS 120290 case, it could be difficult for the prosecutor to prove that the defendant purposefully transmitted a disease. To prove purposeful transmission of a disease, the district attorney will have to show that the defendant knew she had a disease capable of transmission in the first place. Remember, the district attorney must prove that the defendant did all of the following: had knowledge that she had a disease (or a third person); intended to transmit the disease; and, that she actually infected the victim with the disease as intended.
Note: For gross negligent transmission of an infectious or communicable disease cases it is a defense to show that the defendant took reasonable steps to prevent transmission. For example, wearing a face mask to avoid the spread of Covid19 (coronavirus), or a prostitute wearing a condom during sexual intercourse to avoid the spread of an STD, might be defenses in gross negligent transmission cases. This assumes the use of these prophylactics were used in good faith.
For further information on any crime related to HS 120290, or willful transmission of infectious disease, contact our criminal defense lawyers without delay. A good defense starts early as useful defense evidence in these types of cases can be fleeting. Our team of criminal defense lawyers will answer your questions and discuss your defense options at a private consultation. Call today!