BILL NUMBER: SB 705 CHAPTERED
BILL TEXT
CHAPTER 1001
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 1998
APPROVED BY GOVERNOR SEPTEMBER 29, 1998
PASSED THE SENATE AUGUST 19, 1998
PASSED THE ASSEMBLY AUGUST 17, 1998
AMENDED IN ASSEMBLY SEPTEMBER 4, 1997
AMENDED IN SENATE MAY 6, 1997
AMENDED IN SENATE MAY 1, 1997
AMENDED IN SENATE APRIL 16, 1997
AMENDED IN SENATE APRIL 7, 1997
INTRODUCED BY Senator Rainey
FEBRUARY 25, 1997
An act to amend Sections 1621.5 and 120290 of, and to add Sections
120291 and 120292 to, the Health and Safety Code, relating to human
immunodeficiency virus.
LEGISLATIVE COUNSEL'S DIGEST
SB 705, Rainey. Human immunodeficiency virus.
(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 amended
to 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 exposes
another 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.