Infectious diseases spread through the population without much help—but when diseases are spread on purpose, that's another matter.

In California, under Health & Safety Code 120290 HS, it's a crime to transmit infectious or communicable diseases to another person knowingly. This is commonly known as California's "willful exposure" law.

HS 120290 makes it a misdemeanor crime to knowingly transmit an infectious disease to someone.

Since its most common application is for the intentional transfer of sexually transmitted diseases (STDs), it is also commonly referred to as knowingly transmitting an STD. In recent years, the law has also been applied to the willful transmission of COVID-19.

HS 120290 says, “(a) (1) A defendant is guilty of intentional transmission of an infectious or communicable disease if they knew they were infected, acted with the specific intent to transmit or cause to transmit that disease, engaged in conduct that poses a substantial risk of transmission to that person, transmits the infectious or communicable disease to another person, and the person exposed did not know that the defendant was afflicted with the disease.”

An “infectious or communicable disease” is a disease that spreads from one person to another, either directly or indirectly, and has significant public health implications. Some examples are HIV, AIDS, herpes, gonorrhea, and chlamydia.

The conduct that poses a substantial risk of transmission is any act that poses a reasonable probability of disease transmission, such as unprotected sex and sharing a needle for injecting drugs.

Violations of this statute are misdemeanor crimes that carry up to one year in the county jail and a fine of up to $1,000 if convicted. Our California criminal defense attorneys will review this law in more detail below.

Health & Safety Code 120290 HS - Explained

California's willful exposure law (HS 120290) defines two specific criminal behaviors regarding infectious diseases: intentional transmission and deliberate exposure.

Intentional Transmission of an Infectious or Communicable Disease 

To prove you guilty of intentional transmission, prosecutors must demonstrate all of the following to be true:

• You knew you had an infectious or communicable disease;
• You acted with a specific intent to transmit that disease to someone else;
• You engaged in conduct that posed a "substantial risk of transmission" to the other person;
• The other person contracted the disease; and
• The other person was unaware that you were infected while interacting with you voluntarily.

Willful Exposure to an Infectious or Communicable Disease (bold)

Willful exposure occurs when a qualified health professional instructs you not to engage in conduct that presents a "substantial risk of transmission" to someone else, and you violate those instructions within 96 hours of receiving them.

This typically occurs when you are quarantined for the disease, but quarantine is not feasible, so the physician tells you to take steps to avoid exposing others.

Other things to know about HS 120290:

• "Infectious or communicable disease" refers to "a disease that spreads from person to person, directly or indirectly, that has significant public health implications." In other words, the disease is significant enough to impact public health. This would preclude transmitting minor diseases like the common cold, for example, unless the victim had underlying conditions that could create life-threatening complications;
• "Conduct that poses a substantial risk of transmission" refers to behaviors that the current science believes to create a reasonable expectation of transmitting the disease—for example, sharing hypodermic needles or engaging in unprotected sex in the case of an STD like AIDS, or deliberately coughing on someone if you have COVID;
• HS 12090 also applies to third-party exposure. In other words, if you know a third party has an infectious disease, and you intentionally encourage risky activity or exposure between that third party and the victim, you can be charged with knowingly transmitting the disease just as if you were infected yourself.

What Are Some Examples?

• Having unprotected sex without telling your partner you have an STD;
• Sharing a needle without telling the other person you are HIV-positive;
• Deliberately trying to infect someone with COVID by hanging around them without a mask.

What are the Penalties If Convicted?

Violating HSC 120290 is a misdemeanor offense instead of a felony crime. (pic)

If you are convicted of intentional transmission or willful exposure to an infectious disease, you could face up to six months in county jail and fines up to $1000.

Further, under Penal Code 12022.85 PC, there is a three-year penalty enhancement for each sex crime by persons with HIV or AIDS. This statute applies to:

• Rape in violation of Penal Code 261 PC,
• Statutory rape in violation of Penal Code 261.5 PC,
• Sodomy in violation of Penal Code 286 PC, and
• Oral copulation in violation of Penal Code 287 PC.

What Are the Common Legal Defenses?

There are a few common defenses to HS 120290 charges that a knowledgeable criminal defense attorney could raise on your behalf.

Most have something to do with disproving one or more of the facts listed above that prosecutors must demonstrate to find you guilty. The common defenses are discussed below.

Perhaps we can argue that you didn't know you were infected. Intentional transmission assumes you knew you had an infectious disease and deliberately ignored safety precautions regarding transmitting it. If you didn't know you had an infection, you could not be convicted of intentional transmission.

There are several common defenses for allegations you violated the willful exposure law.

Perhaps you didn't act with the intent to transmit the disease. The law allows you to raise a defense of acting with intent if you used "practical means to prevent transmission." Examples include wearing a condom during sex or wearing a mask while infected with COVID.

If your attorney can demonstrate that you took reasonable steps to avoid infecting the other person, you can avoid conviction.

Perhaps we can argue that your actions didn't result in transmitting the disease. If the other party didn't get infected, there was no transmission.

Additionally, you may be able to make the case that the other party didn't get infected due to your actions; for example, if the infected party had multiple sex partners who had the same STD, there is a reasonable doubt that your efforts alone caused the infection.

Perhaps the other person voluntarily participated in the risky conduct with full knowledge. One factor in proving intentional transmission is that the other party didn't know you were infected. If they did know and still chose to participate, you should not be convicted of intentionally transmitting the disease.

If you have been accused of violating Health & Safety Code 120290 HS, contact us to review all the details and legal options moving forward. The Los Angeles-based criminal defense law firm of Eisner Gorin LLP can be reached for an initial case evaluation by phone or contact form.