Do I Have to Tell A Sexual Partner That I Am HIV-Positive in California?

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Living with HIV can be a complex experience, especially when it comes to intimacy. But thanks to advancements in treatment, people with HIV who achieve an undetectable viral load pose a negligible risk of transmission through sex. 

In California, the legal landscape surrounding HIV disclosure has changed significantly, especially since the passage of Senate Bill 239. If you are living with HIV, understanding HIV disclosure laws is very important.

Below, the lawyers of The Law Offices of Kerry L. Armstrong, APLC, will explore the changes to the law and how these changes impact your rights and obligations when engaging in sexual activity in California. 

HIV Disclosure Laws in California

Before 2017, California law mandated disclosure of HIV status to potential sexual partners. However, with the passage of SB 239, California no longer has a specific law that makes it a crime to transmit or expose someone to HIV. Key points of SB 239 include:

  • Disclosure is not mandatory. SB 239 removed the general, overarching requirement to disclose your HIV status before sexual activity.
  • The focus is on intent. The law now emphasizes the criminality of intentionally infecting others. If you knowingly and recklessly engage in unprotected sex with the intent to transmit HIV, the law considers it a misdemeanor.
  • Prior felony convictions vacated. Senate Bill 239 also automatically vacated past convictions related to non-disclosure of HIV status.

California Penal Code section 1170.21 was introduced by SB 239 to eliminate HIV criminalization laws and automatically clear prior arrests and convictions related to these laws:

  • Non-disclosure of HIV status, and
  • Felony prostitution convictions based on HIV status.

Additionally, sex workers living with HIV/AIDS are no longer subject to felony convictions. 

California HIV Law Before and After SB 239

Before SB 239, it was illegal to intentionally expose a sexual partner to HIV without reporting one’s status, which carried a prison sentence of three to eight years. Senate Bill 239 changed this to a misdemeanor and removed the mention of HIV. The law focused on any communicable disease, including sexually transmitted diseases.

Is it Illegal to Not Tell Someone You Have HIV in California?

Under SB 239, not disclosing your HIV status alone—i.e., without additional aggravating factors—is not a crime. Things get more complicated if the following situations apply to you: 

  • Detectable viral load. If your viral load is detectable and you engage in unprotected sex without informing your partner, and they contract HIV, you could face criminal charges for willful exposure to an infectious disease. The law would consider this act to be a misdemeanor.
  • Intentional exposure. If you knowingly have an unsuppressed viral load and engage in unprotected sex without informing your partner, and they subsequently contract HIV, you could be charged with a misdemeanor under the California Penal Code.

Senate Bill 239 removed the criminal penalties associated with not disclosing your HIV status before sexual activity—as long as the viral load is undetectable. An undetectable viral load means the HIV levels in your blood are so low that you will not transmit the disease through sex.

What Is Willful Exposure to an Infectious Disease in California? 

California has a law that criminalizes the intentional transmission of an infectious or contagious disease. If you violate this law, the court can imprison you for up to six months. You could be guilty of this crime if the following elements exist:

  • You know you have an infectious or contagious disease,
  • You act with specific intent to transmit the disease,
  • You engage in conduct that poses a substantial risk of transmission of that disease to another person, 
  • You transmit the disease to that person, and 
  • The person you infected did not know that you harbored the disease before engaging in the conduct.

A person who does all of the above but does not transmit disease is guilty of a misdemeanor punishable for not more than 90 days in jail and a fine of up to $1000, regardless of whether the disease involved is HIV or another infectious disease covered under the law. 

What If I Don’t Disclose But Use Protection?

A person cannot be prosecuted for acting with a specific intent—a conscious desire to transmit the disease—if they take or attempt to take practical measures to prevent transmission.

This includes the use of a condom, barrier protection, or good faith adherence to a medical provider’s approved treatment plan. However, depending on other circumstances, you could face a civil lawsuit.

Can I Be Sued for Not Disclosing My HIV Status?

If you don’t disclose your HIV status and your partner contracts the virus, they might sue you for negligence or intentional misrepresentation. This could result in financial compensation for the person who contracted HIV from you.

Although criminal charges solely due to non-disclosure are less likely under SB 239, it’s important to note that civil lawsuits have limitations and may not always result in successful claims. 

Can People Living with HIV Face Harsher Sentences for Other Crimes?

Under California Penal Code §12022.85, people with HIV who know their status and are convicted of specific sex crimes may receive increased sentences or aggravated assault charges. These crimes include rape and unlawful intercourse or sodomy with a person under 18 years of age.

Should I Still Disclose My HIV Status to a Sexual Partner, Even If It is Not Legally Required?

Openly communicating with potential partners is essential for trust and healthy relationships. Sharing your HIV status enables partners to make informed decisions about intimacy and possible risks, fostering a relationship built on trust and understanding. Even if you are not legally obligated to share, honesty is crucial for establishing trust in a relationship.

Additional Resources

Here are some resources that can help if you have any questions or concerns about your health status:

If you have legal questions or concerns, we are here to help as well.

Still Have Questions About HIV Disclosure in California?

If you have questions about HIV disclosure laws or are facing charges related to non-disclosure, contact The Law Offices of Kerry L. Armstrong, APLC. We provide compassionate and confidential legal guidance and support to help navigate any legal issues that may arise from disclosing or failing to disclose your HIV status.

Where You Can Find Our San Diego Office

Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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