California downgrades the act of knowingly exposing someone to HIV from a felony to a misdemeanor

Suppose you’re infected with a sexually transmitted disease that, unless treated, is deadly. When treated, you have a good chance of living a normal life, so you’re getting treated. But you want to have sex with other people, and if they know you’re infected, they might not want to engage. So you don’t tell them your condition.

That’s clearly immoral, and even a crime, but what kind of crime? When the infection was with HIV (human immunodeficiency virus), it used to be a felony, at least in California. When the virus overwhelms the immune system, you get AIDS, and while that’s no longer a death sentence, it can kill you.

Up until now, knowingly exposing someone to HIV without telling them was a felony, at least in California. That seems to me appropriate, and a good incentive to tell your potential sex partners. You are, after all, infecting them with a deadly virus that, if untreated, stands a good chance of killing them. (Of course having unprotected sex these days with someone who hasn’t been declared STD-free is a real crapshoot, but if you know you’re infected, it’s your obligation to tell your partners.)

Now, however, withholding your HIV status from exposed partners is no longer a felony in California: thanks to governor Jerry Brown, it’s become a misdemeanor. According to the Los Angeles Times, this also goes for giving blood, though I think all donated blood is screened for HIV these days. From the article:

Gov. Jerry Brown signed a bill Friday that lowers from a felony to a misdemeanor the crime of knowingly exposing a sexual partner to HIV without disclosing the infection.

The measure also applies to those who give blood without telling the blood bank that they are HIV-positive.

Modern medicine allows those with HIV to live longer lives and nearly eliminates the possibility of transmission, according to state Sen. Scott Wiener (D-San Francisco) and Assemblyman Todd Gloria (D-San Diego), authors of the bill.

“Today California took a major step toward treating HIV as a public health issue, instead of treating people living with HIV as criminals,” Wiener said in a statement. “HIV should be treated like all other serious infectious diseases, and that’s what SB 239 does.”

But HIV isn’t like flu or even syphilis or gonorrhea. The latter STDs have early symptoms that will drive you to the doctor at a point when the disease can be cured. HIV can linger undetected in the body for years before it erupts into full-blown AIDS. And if you get those STDs, you can be cured with a round of antibiotics; with HIV you have to go on an expensive regimen of drugs that lasts the rest of your life.

Now there’s one other justification that the lawmakers gave:

The current law, Wiener argued, may convince people not to be tested for HIV, because without a test they cannot be charged with a felony if they expose a partner to the infection.

“We are going to end new HIV infections, and we will do so not by threatening people with state prison time, but rather by getting people to test and providing them access to care,” Wiener said.

In other words, if you suspect you have HIV, they claim, you’re more likely to get tested if you realize that infecting someone whom you don’t tell is just a misdemeanor. To me that makes little sense. If you suspect you have HIV, you get yourself tested and go on the pills—unless you want to die. I doubt that the ability to have unprotected sex with anyone will outweigh your fear of death.

Further, not everybody who is infected gets tested or diagnosed, and even fewer of those go on the necessary medication regimen, which is expensive and sometimes hard to stick to.

But are people diagnosed with HIV/AIDS really living normal lives? The U.S. government’s stats suggest otherwise:

In 2015, 18,303 people were diagnosed with AIDS. Since the epidemic began in the early 1980s, 1,216,917 people have been diagnosed with AIDS.

In 2014, there were 12,333 deaths (due to any cause) of people with diagnosed HIV infection ever classified as AIDS, and 6,721 deaths were attributed directly to HIV.

And this:

Brown declined to comment on his action.

As best I can determine, about 30 people die annually from congenital syphilis: about 0.4% the frequency of deaths from HIV.  That means that infection with HIV is far more likely to kill you, and remember that some of those who died of HIV were probably being treated.

I think most of you will agree that the degree of punishment for knowingly exposing someone to a disease should be proportional to the severity of that disease. Given the statistics, and the unconvincing claim that downgrading exposure to HIV from a felony to a misdemeanor will promote more HIV testing, I’d say that California has made a mistake. (This, of course, could change as the statistics change.)

Do you agree?

h/t: Cindy

50 Comments

  1. Posted October 8, 2017 at 9:14 am | Permalink

    I agree. It should remain a felony.

    Sent from my iPhone

    >

  2. Randy schenck
    Posted October 8, 2017 at 9:18 am | Permalink

    I would agree as well. Jerry Brown is wrong on this and seems to sometimes fall back on his religious forgive the sinner mentality. Of course the republicans are doing their best to spread STD which is a national disgrace at the highest level. No education in the grade schools just more religion. Let us all just pray and have good thoughts. Enough to make one sick.

  3. Tomáš Janáček
    Posted October 8, 2017 at 9:26 am | Permalink

    You’re ignoring an important point: even under the former harsher law, if you suspect you have got HIV, don’t get tested and infect someone else, you still can’t be charged with a felony.

    • Randy schenck
      Posted October 8, 2017 at 9:41 am | Permalink

      Obviously, if you don’t know you have it, there is no crime. There is no intent.

    • eric
      Posted October 8, 2017 at 10:05 am | Permalink

      The solution to that problem is to make it a misdemeanor to unwittingly infect someone with HIV. This would mean that if you do it and get caught, there is now an official public record that you have HIV – making it easier for future prospective partners to look you up. If it also reduces the incentive to remain ignorant, that’s good too. But I don’t think we’d need a big penalty to encourage people to get tested; even a mere ‘wrist slap’, if it’s judicial, would serve the purpose of now making your action a matter of public record.

      • Heather Hastie
        Posted October 8, 2017 at 2:23 pm | Permalink

        I agree. This is the way the issue should have been handled. Leave knowingly exposing someone as a felony and making unknowingly exposing them a misdemeanor.

        A bit like the difference between murder and manslaughter.

  4. BJ
    Posted October 8, 2017 at 9:34 am | Permalink

    “As best I can determine, about 30 people die annually from congenital syphilis: about 0.4% the frequency of deaths from HIV.”

    This isn’t the only reason HIV is so different from something like syphilis. As you noted earlier in the article, syphilis is treated with a simple round of antibiotics, while HIV requires a lifelong regimen consisting of many expensive pills and constant doctor visits. The medications for HIV can also make you terribly sick, meaning that having HIV, even if it doesn’t kill you, can seriously affect how you live the rest of your life. It’s incurable, extremely expensive, lingers for years without treatment until one suddenly has AIDS, and has a significant chance of eventually killing a person regardless of treatment. Oh, and contrary to the two state senators and authors of the bill, modern medication does not make transmission of HIV nearly impossible.

    Gov. Brown absolutely made the wrong decision, but I can’t say I’m surprised. The reasoning given by politicians quoted in the article is the exact same reasoning I’ve seen over the last few years in social justice communities. Several years ago, I started seeing articles and comments about how laws such as the one California just changed were “criminalizing being gay” and oppressing gay people who had HIV by denying them the potential for sex/relationships. I have also regularly seen the argument (completely unsupported by any factual data) that reducing or eliminating the offense would somehow lead to more testing for HIV. Finally, I don’t know where the governor’s office would have come up with the idea that they should allow people who have HIV to give blood without informing the blood bank except from the social justice sphere, which is the only place I’ve ever seen such a ridiculous idea argued (the argument being that it’s oppressive to people with HIV to deny them giving blood and/or to make them disclose the disease — which could lead to discrimination — just because they want to donate blood). Of course, all of this is, ironically, based on the untrue and discriminatory stereotype that only gay people have HIV.

    • eric
      Posted October 8, 2017 at 10:11 am | Permalink

      I don’t know where the governor’s office would have come up with the idea that they should allow people who have HIV to give blood without informing the blood bank except from the social justice sphere, which is the only place I’ve ever seen such a ridiculous idea argued

      This one actually bothers me less. While the potential consequences are bad, the Red Cross screens every blood donation for a host of diseases, HIV being one of them.

      Now, tests are not 100% foolproof. So there’s always a slight risk some infected blood might get into the system. However, the much much more likely consequence of allowing HIV positive people to donate blood is that they volunteer to get an HIV test without knowing that’s what they are doing, while the Red Cross spends a little more time and money on donations than they otherwise would.

      • BJ
        Posted October 8, 2017 at 10:14 am | Permalink

        Still, as you said, tests can be wrong. The law applies to people who *know* they have HIV, so your potential scenario of people finding out they have HIV through donating blood doesn’t apply. Someone who knows they have HIV and donates blood anyway should absolutely be charged with a felony. If you’re donating blood and are aware you have HIV, you know there are only two possibilities: (1) your blood is rejected because it shows up as infected, or (2) your blood accidentally gets through screening and results in infecting some innocent person who needed a blood transfusion. That is absolutely diabolical.

        • Lee
          Posted October 8, 2017 at 7:50 pm | Permalink

          Third option- you check the “don’t use this blood because my family is with me today and they don’t know I’m gay but in fact I have HIV and don’t want them to know” box (or words to that effect), and the blood gets silently and secretly discarded. No one is the wiser.

          • eric
            Posted October 9, 2017 at 12:58 pm | Permalink

            Yes indeed. That seems to me to be an adequate solution to the problem of people who have gotten HIV, know they have it, don’t want to be ‘outed’ by a sudden change in their behavior, but don’t want to cause harm either.

    • BJ
      Posted October 8, 2017 at 10:12 am | Permalink

      Ah, and I just noticed a link to a previous article on this site about Planned Parenthood in 2015 telling “HIV-positive youth it’s OK to keep their status secret from sex partners” for some of the reasons I laid out: https://whyevolutionistrue.wordpress.com/2015/12/27/planned-parenthood-tells-hiv-positive-youth-that-its-okay-to-keep-their-status-secret-from-sex-partners/

    • Gregory Kusnick
      Posted October 8, 2017 at 1:13 pm | Permalink

      “I don’t know where the governor’s office would have come up with the idea”

      Brown’s office didn’t author this bill. Wiener and Gloria did.

  5. Bob Murray
    Posted October 8, 2017 at 9:35 am | Permalink

    It seems to me an absolute wrong not to inform a sex partner. To not inform blood donation services and potentially allow a completely oblivious medical patient to receive infected blood is a premeditated act of pure malice! Is donated blood in California screened for HIV?

    • eric
      Posted October 8, 2017 at 10:12 am | Permalink

      All red cross blood donations everywhere are screened for HIV (and a bunch of other diseases).

      • George
        Posted October 8, 2017 at 11:40 am | Permalink

        All blood donations in the US are screened for over fifty things – including HIV. When you give blood, they also take six test tubes of blood for testing. The sixth one was recently added for a study being done on zika. Not sure if this is done everywhere or just at Heartland, the Chicago area blood service I go to (six times a year – need to keep my iron level down). And they test quickly because the blood cannot be used until it has been tested. If you give whole blood (or platelets or red cells) one day, all the tests are done by the next morning. Only then does it enter the blood supply.

        Don’t confuse blood donation with the Red Cross. In the Chicago area, all the hospitals except one blood bank with either Heartland or Lifesource. The one exception is UofC which for some reason operates its own blood bank. The Red Cross shows up once a year to do a big one day blood drive pushed by a local weather woman. I always complain about this because that blood leaves the Chicago area.

        When you give blood, you complete a very invasive questionnaire which asks if you have ever tested positive for HIV, had sex with a man (if you are male) in the past year (used to be since 1977), been in jail, and much more. If you know your HIV status and give blood after that questionnaire, you should go to jail. And if you give blood because of some kind of pressure and you do not want to reveal why you cannot, there is a number to call and they will discard your blood.

        They test for either syphilis or gonorrhea, not sure which one. One of them takes 30 days to get results so they do not test for it. Blood will have gone bad by then.

        • eric
          Posted October 9, 2017 at 1:07 pm | Permalink

          If you know your HIV status and give blood after that questionnaire, you should go to jail.

          As Lee pointed out, donation comes with the option of checking a ‘don’t use my blood’ box on the form. They also provide all donors with call back information they can use to tell the agency later not to use their blood (ostensibly in case a donor suddenly gets flu symptoms or something like that).

          If someone doesn’t do any of that, and knowingly infects the blood supply, then I’m on board with prosecuting them. But IMO these non-prosecutorial ‘barriers’ make that outcome much less likely. Even people who are regular blood donors, get HIV, and want their condition to stay hidden don’t need to risk the blood supply to accomplish that. They just check a box on the form or call phone number later.

          • Posted October 9, 2017 at 6:52 pm | Permalink

            An OK (and clever) workaround to donating, but having your blood used. Sadly, however, I do not have the same faith that someone will *read* the note and dispose of it.

            Sadly, the last three times in a row, the person who drew my blood were indifferent, incompetent and alarming. (At two different locations.) I took that as a sign and stopped giving blood.

  6. jaxkayaker
    Posted October 8, 2017 at 9:43 am | Permalink

    The California government’s decision in this case is utterly irrational. Choosing to risk another’s life without informing them of said risk is unethical and should be a higher category of illegality, i.e. a felony.

  7. Stephen Barnard
    Posted October 8, 2017 at 9:49 am | Permalink

    Somewhat off-topic: The bacteria that cause gonorrhea have become extremely resistant to antibiotics. In most countries the only effective treatment is extended-spectrum cephalosporins (ESCs), and there are reports of resistance developing to this antibiotic.

  8. Historian
    Posted October 8, 2017 at 9:56 am | Permalink

    I wonder if the new law handles this scenario. Suppose prior to sex one person asks the other: have you been tested for HIV and, if so, what was the result? The other person answers that he has been tested and the result was negative. Later it turns out the response was a lie. The other person was tested and the result was positive. Thus we have a lie of commission rather than omission. Can the other person then be charged with a felony? If so, both partners should ask the question. It could cut down on HIV transmission. If such a lie under the law would still just result in a misdemeanor then the law is terribly wrong.

    In any case prior to sex, a person should be questioning the sexual health of the partner. Maybe the person would get an honest answer. Also, the failure to use protection is a big mistake.

  9. Posted October 8, 2017 at 10:22 am | Permalink

    Wrong decision. *Especially* for the blood banks, who can infect thousands at a time, not just a few.

    The most recent scandal seems to be from Canada in 2005, but the Red Cross has a bad record in the US on infecting others. (Since the late 70’s, when I used to donate blood regularly.)

    “The Red Cross in Canada has pleaded guilty to distributing contaminated blood supplies which infected thousands of Canadians with HIV and hepatitis C.” — The Globe and Mail, Inc.

  10. Craw
    Posted October 8, 2017 at 10:23 am | Permalink

    I do agree. I also think that because it can be transmitted by asymptomatics there is an enhanced risk of spread. The only effective countermeasure is disclosure.

  11. Jenny Haniver
    Posted October 8, 2017 at 10:24 am | Permalink

    I don’t know who’s seen this about a Scottish hairdresser accused of deliberately infecting his sexual partners with HIV http://www.bbc.com/news/uk-england-sussex-41516164. He should have waited a bit and come to California.

    • Posted October 8, 2017 at 10:51 am | Permalink

      Didn’t see that one, but I recall there was a similar incident in the US.

  12. Jeremy Tarone
    Posted October 8, 2017 at 11:01 am | Permalink

    “…an estimated one-third of Americans diagnosed with HIV aren’t receiving any kind of treatment, according to government data. One big reason: They can’t afford it.”

    http://www.pbs.org/wgbh/frontline/article/why-some-with-hiv-still-cant-get-treatment/

    For many in the USA HIV is still a death sentence because they can’t afford treatment.
    This was from 2012, so things got a bit better with the ACA but it’s getting worse again.

    In a similar vein, twenty-five percent of cancer patients in America can’t afford treatment. That study was done in 2016, with the ACA.

    A little off topic, but I thought it might be germane.

  13. Posted October 8, 2017 at 11:05 am | Permalink

    Being that I already have a host of my own autoimmune disease (not contagious) I have to be extremely careful about everything I do, even shopping is filled with possible contaminants for which my body has no defense.

    If I were to be infected with HIV it would be a death sentence, not only because of my compromised immune system but who in the world can afford the drugs needed to manage HIV, it’s insanely expensive.

    I am a Californian and I have always been a Brown supporter but not in this, this is a horrible decision that endangers many people.

    HIV is not curable like other STD’s, it’s a death sentence to anyone who can’t afford the drugs to manage it or who doesn’t have a healthy immune system to begin with.

    • Randy schenck
      Posted October 8, 2017 at 12:22 pm | Permalink

      Oh, I think it is right on the money, so to speak.

  14. somer
    Posted October 8, 2017 at 11:20 am | Permalink

    totally agree

  15. Ken Kukec
    Posted October 8, 2017 at 11:21 am | Permalink

    I dunno, sometimes I feel I was lucky to spend my 20s in something of a golden age for sex — after the Pill, after Roe v. Wade, after in loco parentis, but before HIV, before herpes even became a wide-spread thing, when the worst we had to worry about was a dose of something penicillin could cure, or a partner lying about her age. Hell, drive-in movies were still a thing. 🙂

    It’s a fucked-up situation to know that the act of making love can kill ya. I feel bad for young folks who’ve had to start out under that malevolent cloud.

    People have something akin to a fiduciary duty to keep their partners safe and healthy in a sexual relationship. If they violate it, that’s a crime. California should keep this one a felony.

  16. Liz
    Posted October 8, 2017 at 11:43 am | Permalink

    I agree. The tests for all of that should also somehow be cheap and available. Even though it’s condoms/monogamy etc. in a hypervigalint way, I have my obgyn do all the tests anyway. It’s not all covered and is usually $250. Worth it, though, for extra peace of mind. Definitely a felony.

  17. Frank Bath
    Posted October 8, 2017 at 11:58 am | Permalink

    I’m with the prof Not telling an unknowing sexual partner that you have HIV is criminal. I can find no other word to describe it, seriously criminal. ‘Sorry darling, I may kill you,’ he/she said under his/her breath.

  18. Gregory Kusnick
    Posted October 8, 2017 at 1:09 pm | Permalink

    about 30 people die annually from congenital syphilis

    Did you mean to compare death rates for sexually transmitted HIV with those for congenitally (mother-to-child) transmitted syphilis?

    According to Wikipedia, the relevant statistic for sexually transmitted syphilis is upwards of 100,000 deaths a year worldwide.

  19. Meagain
    Posted October 8, 2017 at 1:41 pm | Permalink

    I agree, but what about the argument that modern medicine “nearly eliminates the possibility of transmission”? How much is “nearly”?

  20. EliHershkovitz
    Posted October 8, 2017 at 3:12 pm | Permalink

    Emphatically.

  21. Posted October 8, 2017 at 3:14 pm | Permalink

    You are woefully ignorant of this issue. The laws are incredibly harsh and stem from ignorance and fear. The laws were originally enacted when very little was known about HIV or how it was transmitted. Also, it is extremely rare for someone to intentionally try to infect another. The majority of these prosecutions come from people who falsely accuse their lover after a bad break up. Lastly I will add that it takes two to tango and everyone should take care of their own health. Use condoms.

    • BJ
      Posted October 8, 2017 at 3:34 pm | Permalink

      Jerry and many other comments here have presented a host of facts supporting why changing this law was the wrong decision. All you’ve offered is a bunch of suppositions and the claim that we’re all ignorant. Do you have any facts to support suppositions like the idea that most prosecutions come from people falsely accusing after bad breakups? I mean, the rest of your claims can’t even be backed up by facts (e.g. that since people are responsible for their own sexual health, those who have HIV should be free to knowingly engage in sex with others without informing them). And there is a difference between “intentionally try to infect another” and “purposefully fail to disclose HIV-positive status to another so you can have sex with them.”

      • Posted October 8, 2017 at 8:55 pm | Permalink

        Unfortunately I am at work and cannot copy/paste url’s to spoon feed you. However, if you click on my moniker above, truthymctruthenstein, it will take you to my website, HIV Innocence Group Truth. Or you can google Center for HIV Law and Policy and you will find much information and a myriad of attorneys and HIV Activists like me who have spent years trying to get these draconian laws changed. I am sorry if you were offended by my pointing out that Jerry is woefully ignorant on this issue. But I am very disappointed that a great scientist like Jerry gave an opinion on an important subject without proper research.
        J. Todd DeShong

        • BJ
          Posted October 9, 2017 at 9:13 am | Permalink

          “I am sorry if you were offended by my pointing out that Jerry is woefully ignorant on this issue.”

          That’s funny, you sounded like the one who was offended, and continue to sound so. Anyone who disagrees with you is ignorant, no evidence necessary.

          Whatever you say. At least your agenda is clear now. Enjoy your week.

          • Posted October 9, 2017 at 2:49 pm | Permalink

            I gave you two good resources which you obviously did not read. I bet you are a heterosexual male and you think this issue will never be a part of your world, so cling to your ignorance while loudly and repeatedly vocalizing your factless opinions. Typical.

            • PJ Matzig
              Posted October 10, 2017 at 7:42 am | Permalink

              I have the right to know, pal. If you are infected with any STI and fail to inform me, I haven’t properly given my consent and you are guilty of aggravated sexual assault, full stop.

    • Craw
      Posted October 8, 2017 at 3:38 pm | Permalink

      The issue isn’t deliberate infection, but misprision of the risk. This can certainly happen in cases where one party is deceived and so sees no need for condoms. Is your advice to all couples, including those seeking to have children, to insist on condoms?
      False accusations are always a problem. What other crimes should we downgrade therefore? Is your point that you want more false accusations, because misdemeanors will invite less scrutiny and excite less remorse in the accuser?

    • Posted October 8, 2017 at 4:54 pm | Permalink

      The laws were originally enacted when very little was known about HIV or how it was transmitted.

      It has been claimed in this thread that the consequences of being infected with HIV are, at the best, life changing. In what way is that assessment incorrect?

      Also, it is extremely rare for someone to intentionally try to infect another

      Does that somehow reduce the severity of the consequences for the victim?

      Lastly I will add that it takes two to tango and everyone should take care of their own health. Use condoms.

      Even condoms are not absolutely 100% effective and there are also situations where you may not be able to use a condom. For example: you and your husband are trying for a baby but he is withholding the fact that he knows he is HIV positive from you.

  22. Posted October 8, 2017 at 9:27 pm | Permalink

    The claim that downgrading exposure to HIV from a felony to a misdemeanor will promote more HIV testing and reduce infections is a scientific one, and there ought to be a way to test it. In an ideal society that’s what would happen and lawmakers would act accordingly, but in America there just isn’t enough confidence in science, so instead, lawmakers are guided by anecdotes, emotional arguments, and whatever, to them, seems right.

    If I was governor, I’d ask those senators how much more testing they expect to see and by what percentage they expect the infection rate to change. I’d demand numerical estimates and their associated standard errors, along with a detailed report describing in detail the research that was done and how those figures were derived. Without that I wouldn’t sign anything.

  23. infiniteimprobabilit
    Posted October 9, 2017 at 3:07 am | Permalink

    Okay, what’s the penalty for someone with any other infectious conditions such as, say, tuberculosis, or leprosy, deliberately or recklessly mingling with others and thereby risking infecting them?

    It seems to me to be relevant to how seriously HIV infection is treated. I guess the penalty should be proportionate both to the risk of infection and the lethality of the disease.

    cr

  24. Bob Barber
    Posted October 9, 2017 at 8:54 am | Permalink

    As I recall, back in the middle 1960s, we had to have a blood test when applying for a marriage license. The blood test tested for syphilis. What is the problem for testing for HIV on every blood test performed by a physician?

    • Gregory Kusnick
      Posted October 9, 2017 at 10:14 am | Permalink

      Except in cases of life-threatening emergency, doctors need your informed consent to perform any medical procedure, including diagnostic tests. Are you proposing that they should be allowed to do an HIV test (and bill you for it) without consent?

      At my last annual checkup, my doctor said that they’re now recommending that everyone in my age group be tested for HIV and hep C, and asked my permission to do so. I was happy to give it, but I would have been considerably less happy if she’d drawn blood on some other pretext in order to do those tests without asking.

  25. nicky
    Posted October 9, 2017 at 11:53 am | Permalink

    In SA (with the largest HIV population in the world) you are encouraged to test, but in order to test you need counseling by a trained counselor (mostly nurses)).
    Although I think that not disclosing your known positive status, especially for ‘unprotected’ sex, actually is a crime, I’m not convinced that having it as a felony as opposed to a misdemeanor makes any difference. I mean, the goal is to reduce infections and I’m not convinced that the ‘criminal path’ is necessarily the best way to go.
    At any rate, the prevalence of HIV in SA is so high (about 15% of the sexually active population, and in some areas up to 30%+) that anybody should be considered HIV+ until proven otherwise. ‘Unprotected’ sex is definitely a nono here.

  26. PJ Matzig
    Posted October 10, 2017 at 7:44 am | Permalink

    The HIV Is A-O.K. activists are attempting this crap in Ontario, Canada too. And it might work. It’s ridiculous.


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