“Failure to disclose a communicable disease (such as HIV) prior to intercourse vitiates consent and turns consensual intercourse into a sexual battery.” Never lie, always tell, or pay the price.
In 1975, then-and-now California Governor Jerry Brown signed into law the “Consenting Adult Sex Bill,” repealing the sodomy laws and making gay sex legal for the first time in the state. Since then, a lot has changed: the fall of communism, the internet, condom use, and oh, yeah: the deadly rise of the Human Immunodeficiency Virus.
According to a 2003 study by the city entitled “HIV Prevalence, Incidence, & Risk Behaviors among Men Seeking HIV Testing & Prevention Services Inside Los Angeles Bathhouses,” 91% of men go to bathhouses for the sex, 71% go specifically for anonymous sex, and 49% go out of boredom. However, most shockingly: “85% never discuss HIV status with partners before sex.”
Now, this was originally supposed to be an article about the laws surrounding bathhouses and sex clubs. But in light of the above-mentioned facts, we will talk about that another time and focusing instead on saving some asses, literally and legally!
Exposing a person to HIV can give rise to several private civil causes of action including, and not limited to, sexual battery, fraud and deceit, intentional infliction of emotional distress, and negligence. California Civil Code Section 1708.5 provides, in relevant part, that a person commits a sexual battery when intending to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly results. Further, case law holds that the “failure to disclose a communicable disease (such as HIV) prior to intercourse vitiates consent and turns consensual intercourse into a sexual battery.”
And that’s just what you could expect from a lawsuit. CRIMINALLY, California Health & Safety Code Section 120291 provides that any person who exposes another to the HIV by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony punishable by imprisonment in the state prison for three, five, or eight years. Evidence that the person had knowledge of his or her HIV-positive status, without additional evidence, shall not be sufficient to prove specific intent.
Now, if you’re trying to get clever and find a way out of that HIV test coming up, DON’T EVEN THINK ABOUT IT. Aside from being wrong to skip for health and consciousness reasons, California law may find a person negligent for sexually transmitting a communicable disease even if that person transmitting the disease lacked knowledge of having it.
