Can you intentionally transmit HIV without legal consequence in California? No, that's not true: Although the action was reduced from a felony to a misdemeanor, experts told Lead Stories that it is still punishable by law.
The claim appeared in an Instagram post on October 6, 2021. It features a screenshot of a tweet that reads:
In California you can Legally Spread HIV to your partner; but you need to wear a mask and get forcefully vaccinated to stop the spread of a virus that is similar to the Flu.
Although the post made other points about COVID-19 vaccination, this fact check will only address the HIV claim.
This is how the post looked on Instagram on October 15, 2021:
(Source: Instagram screenshot taken on Fri Oct 15 19:36:21 2021 UTC)
California has not made the intentional transmission of HIV legal. Intentional exposure to HIV was previously a felony in the state. In 2017, California's Senate Bill 239 reduced the penalty of intentional transmission of the disease to a misdemeanor. The change was proposed so that intentional transmission of HIV was comparable to the intentional transmission of other serious communicable diseases -- all charges that carry misdemeanor penalties according to section 120290 of California's Health and Safety Code. HIV is a stigmatized virus due to its association with populations that have been historically discriminated against.
Craig Pulsipher, associate director of government affairs at APLA Health -- a nonprofit organization that was one of the co-sponsors of California Senate Bill 239 -- said in an October 15, 2021, email to Lead Stories about the claim:
This is certainly false. Intentional transmission of HIV is still a crime in CA if certain conditions are met.
Ayako Miyashita Ochoa, associate director of the Southern California HIV/AIDS Policy Research Center, said in an email to Lead Stories on October 15, 2021, about the claim:
There is no validity to this statement. You are correct that prior to the passage of California Senate Bill 239 there were 2 felonies on the book that criminalize people living with HIV--California Health and Safety Code section 120291 (HIV-specific felony in the context of consensual sexual encounters) and Penal Code 647f (solicitation while HIV-positive).
Although they are now repealed because of California Senate Bill 239, California Health and Safety Code section 120291 can be found here and California Penal Code 647f can be found here. Miyashita went on:
Both of these laws had not required actual transmission and the solicitation law which was used the most in California didn't require any conduct likely to transmit the virus (i.e. sexual contact).
The key takeaway here is that while the HIV-specific felony (California Health and Safety Code section 120291) was taken off the books, HIV transmission was collapsed into the misdemeanor statute for intentional transmission of an infectious and communicable diseases under California Health and Safety Code section 120290. It's still against the law.
California Senate Bill 239 repealed several other sections of the state's Health and Safety Code and its Penal Code, including Health and Safety Code section 1621.5, which criminalized the donation of blood, organs or other bodily tissues or fluids by those who were aware of having tested reactive for HIV.