California's "Willful Exposure" Law
The law makes it a felony punishable by up to eight years of imprisonment for an HIV-positive person to "willfully expose" another person to HIV through unprotected sex.
The law is narrowly drafted, however, so that it only applies to individuals who intend to infect others with HIV through sex. It is designed to prosecute cases like one in New York, where one man infected more than a dozen young women, not to police every sexual encounter engaged in by people living with HIV.
To be prosecuted under the law, you would have to do all of the following:
1. Have anal or vaginal sex. You cannot be prosecuted for oral sex. As to anal and vaginal sex, the law applies equally to men and women; tops and bottoms. The law punishes exposing someone to HIV through these types of sex. Your sexual partner does not have to actually become infected.
2. Know that you are HIV-positive. You cannot be prosecuted for sex that you had before you knew that you were HIV-positive.
3. Fail to disclose your HIV status. If you disclose before insertion, you cannot be prosecuted.
4. Fail to use a condom. Even if you do not disclose, you cannot be prosecuted unless you have "unprotected sex." The law defines "unprotected sex" as failing to use a condom. This means that every inserting penis has to be covered. Even if you are on the receiving end, you have a legal obligation to make sure that your partner wears a condom.
5. Have the "specific intent" to infect the other person. Most likely, this element will prevent the statute from being used to harass people living with HIV. To be prosecuted, you have to engage in the sexual activity with the specific intention of infecting the other person with HIV. Just knowing that you had HIV when you had sex will not be enough. The law explicitly states that: "Evidence that the person had knowledge of his or her HIV-positive status, without additional evidence, shall not be sufficient to prove specific intent."
Because of this specific-intent requirement, the law is narrowed in scope to only cover individuals who want to infect other people, and who are probably expressing that desire. If you slip up one time, it's unlikely that you will be prosecuted. However, the best way to stay clear of this law, and other legal liabilities, is to always disclose your status and/or practice safer sex.