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SB 705, Rainey. Human immunodeficiency virus. Retrieved from https://info.sen.ca.gov
(1) Existing law provides, except in the case of the removal of an afflicted person in a manner the least dangerous to the public health, that any person afflicted with any contagious, infectious, or communicable disease who willfully exposes himself or herself to another, and any person who willfully exposes another person afflicted with a disease of that nature, is guilty of a misdemeanor.
This bill would provide that any person who exposes another to the human immunodeficiency virus (HIV) by engaging in unprotected sexual activity, as defined, 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 instead guilty of a felony punishable by imprisonment in the state prison for 3, 5, or 8 years. The bill would provide that evidence that the person had knowledge of his or her HIV-positive status shall not be sufficient to prove specific intent.
The bill would provide for the protection of the confidentiality of the identity of the victim in the above action.
(2) Existing law contains several provisions designed to protect the privacy of individuals who are the subject of blood testing for antibodies to the probable causative agent of acquired immune deficiency syndrome, including a provision making certain disclosures a misdemeanor, and provisions requiring written consent prior to testing a person’s blood for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome.
This bill would require, notwithstanding those provisions, identifying information, as defined, and other records of the diagnosis, prognosis, testing, or treatment of any person relating to the human immunodeficiency virus to be disclosed in a criminal investigation for a violation of the provisions described in paragraph (1) if authorized by a court order. The bill would require a court, in deciding whether to issue an order, to weigh the public interest and the need for disclosure against any potential harm to the defendant, as prescribed, and upon issuance of an order, to impose safeguards against unauthorized disclosure, as prescribed. It would prohibit the court from ordering disclosure under this provision for any other type of proceeding. By creating new crimes this bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1621.5 of the Health and Safety Code is amendedto read:
1621.5. (a) It is a felony punishable by imprisonment in the state prison for two, four, or six years, for any person to donate blood, body organs or other tissue, semen to any medical center or semen bank that receives semen for purposes of artificial insemination, or breast milk to any medical center or breast milk bank that receives breast milk for purposes of distribution, whether he or she is a paid or a volunteer donor, who knows that he or she has acquired immune deficiency syndrome, as diagnosed by a physician and surgeon, or who knows that he or she has tested reactive to the etiologic agent of AIDS or to the antibodies to that agent. This section shall not apply to any person who is mentally incompetent or who self-defers his or her blood at a blood bank or plasma center pursuant to subdivision (b) of Section 1603.3 or who donates his or her blood for purposes of an autologous donation.
(b) In a criminal investigation for a violation of this section, no person shall disclose the results of a blood test to detect the etiologic agent of AIDS or antibodies to that agent to any officer, employee, or agent of a state or local agency or department unless the test results are disclosed as otherwise required by law pursuant to any one of the following:
(1) A search warrant issued pursuant to Section 1524 of the Penal Code.
(2) A judicial subpoena or subpoena duces tecum issued and served in compliance with Chapter 2 (commencing with Section 1985) of Title 3 of Part 4 of the Code of Civil Procedure.
(3) An order of a court.
For purposes of this section, “blood” means “human whole blood” and “human whole blood derivatives,” as defined for purposes of this chapter and includes “blood components,” as defined in subdivision (l) of Section 1603.1.
SEC. 2. Section 120290 of the Health and Safety Code is amended to read:
120290. Except as provided in Section 120291 or in the case of the removal of an afflicted person in a manner the least dangerous to the public health, any person afflicted with any contagious, infectious, or communicable disease who willfully exposes himself or herself to another person, and any person who willfully exposesanother person afflicted with the disease to someone else, is guilty of a misdemeanor.
SEC. 3. Section 120291 is added to the Health and Safety Code, to read:
120291. (a) Any person who exposes another to the human immunodeficiency virus (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.
(b) As used in this section, the following definitions shall apply:
(1) “Sexual activity” means insertive vaginal or anal intercourse on the part of an infected male, receptive consensual vaginal intercourse on the part of an infected woman with a male partner, or receptive consensual anal intercourse on the part of an infected man or woman with a male partner.
(2) “Unprotected sexual activity” means sexual activity without the use of a condom. (c) (1) When alleging a violation of subdivision (a), the prosecuting attorney or grand jury shall substitute a pseudonym for the true name of the victim involved. The actual name and other identifying characteristics of the victim shall be revealed to the court only in camera, and the court shall seal that information from further revelation, except to defense counsel as part of discovery. (2) All court decisions, orders, petitions, and other documents, including motions and papers filed by the parties, shall be worded so as to protect the name or other identifying characteristics of the victim from public revelation.
(3) Unless the victim requests otherwise, a court in which a violation of this section is filed shall, at the first opportunity, issue an order that the parties, their counsel and other agents, court staff, and all other persons subject to the jurisdiction of the court shall make no public revelation of the name or any other identifying characteristics of the victim.
(4) As used in this subdivision, “identifying characteristics” includes, but is not limited to, name or any part thereof, address or any part thereof, city or unincorporated area of residence, age, marital status, relationship to defendant, and race or ethnic background.
SEC. 4. Section 120292 is added to the Health and Safety Code, to read:
120292. (a) Notwithstanding Chapter 7 (commencing with Section 120975) and Chapter 8 (commencing with Section 121025) of Part 4, identifying information and other records of the diagnosis, prognosis, testing, or treatment of any person relating to the human immunodeficiency virus (HIV) shall be disclosed in a criminal investigation for a violation of Section 120291 if authorized by an order of a court of competent jurisdiction granted after application showing good cause therefor. Any order of the court shall be issued in accordance with the following conditions:
(1) An order shall not be based on the sexual orientation of the defendant.
(2) In deciding whether to issue an order, the court shall weigh the public interest and the need for disclosure against any potential harm to the defendant, including, but not limited to, damage to the physician-patient relationship and to treatment services. Upon the issuance of an order of this nature, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose safeguards determined appropriate by the court against unauthorized disclosure. However, the court shall not order disclosure under this paragraph for any purpose other than a proceeding under this section. Any order for disclosure under this subdivision shall limit disclosure to those who need the information for the proceeding, and shall direct those to whom disclosure is made to make no further disclosure without permission of the court. The court shall grant permission for further disclosure when necessary for a proceeding under this section. Any disclosure in violation of an order issued under this section shall be remedied or punished as provided in Section 120980.
(b) Nothing in this section is intended to compel the testing to determine the HIV status of any victim of an alleged crime or crimes.
(c) Nothing in this section is intended to restrict or eliminate the anonymous AIDS testing programs provided for in Sections 120885 to 120895, inclusive. Identifying characteristics of persons who submit to that testing shall not be ordered disclosed pursuant to this section, nor shall an order be issued authorizing the search of the records of a testing program of that nature.
SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution. Notwithstanding Section 17580 of the Government Code, unless otherwise specified, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution.