Transmitting an STD

Health and Safety Code 120290 considers the act of willfully transmitting a communicable, infectious or contagious disease as a crime. Such a crime can be committed by exposing yourself to someone else knowing that you are affected by an infectious disease. HSC 120290 applies to all infectious diseases including a sexually transmitted disease.

HSC 120290(a)(2) states that it's a crime to ignore the instructions of a health professional regarding transmitting an infectious disease. You will be charged under this law if you violate the instructions 96 hours after the health professional issues them. Failure to take practical measures for preventing disease transmission may make you guilty of transmitting a disease.

Under HSC 120290(e), an act posing a substantial transmission risk may involve an activity with a reasonable probability of transmitting a disease. The conduct, which may include sexual intercourse, must have been proven by epidemiological or medical evidence to increase disease transmission risks. The term infectious disease refers to a condition known to spread to and from people and one that has significant health implications. The practical means for preventing transmission include using a condom or complying with an approved medical treatment program for the infectious disease.

A California court may allow such a case to go forward if these conditions are true:

• You have a severe and incurable disease

• You failed to disclose your status to your sexual partner

• Doing nothing to prevent the STD transmission

• Reasonably foreseeing the potential harm inflicted to your partner

• Knowingly engaging in an act such as sexual intercourse that poses a great transmission risk to the other party

The exceptions for transmitting an infectious disease under HSC 120290(k) include:

• A paid or voluntary donation of breast milk to a breast milk bank or medical center

• Donating a tissue or an organ for transplantation or research purposes

You will be charged with a California misdemeanor for intentionally transmitting a communicable or infectious disease to someone else under HSC 120290(g). The same charge will also apply if you willfully engaged in conduct that poses great disease transmission risks contrary to a health officer's instruction. Penalties for this offense may include confinement in a local county jail for up to six months.

Attempting to transmit a communicable or infectious disease intentionally may make you guilty of a California misdemeanor. Such a charge will be based on the fact that you attempted to engage in conduct that puts you at a higher risk of transmitting an infectious disease. Punitive measures for this offense include a sentence (of up to 90 days) in county jail.

Can You Get Probation for a Misdemeanor “Transmitting an STD” Offense?

Before your sentencing for an HSC 120290 violation, you'll be placed in a community-based program for supervision, education, and counseling. Attending such a community-based program will be part of your misdemeanor probation, which may last for one year to three years. During this period, you must comply with the conditions of the probation for you to stay out of jail.

Does a Misdemeanor Charge Give You a Criminal Record?

A misdemeanor charge for transmitting an STD may result in a criminal record if you’re found guilty at trial. You will also have the charge in your criminal record if you plead guilty or “no contest” for willfully transmitting an infectious disease. Unless it is expunged or sealed, the conviction will stay on your criminal record for a lifetime.

Since willfully exposing someone else to a sexually transmitted disease is a misdemeanor, your case will go through up to five procedures after your arrest. The procedures include arraignment, bail hearing, pretrial phase, jury trial and appeal (if requested). A California court may decide to drop your case at any stage is the facts/evidence provided is weak. Here is a breakdown of the prosecution process.

1. Arraignment

   Arraignment is considered as the first court hearing of a criminal case. During this hearing, you will be asked to enter a plea (guilty, no contest or not guilty). Expect the judge to set a future court date for the pretrial in at an arraignment. You should also expect to be arraigned for a misdemeanor “transmitting an STD” offense within 48 hours of your arrest.

   Your Constitutional rights at an arraignment include:

   • Right to legal representation by an STD attorney or a court-appointed public defender (if you cannot afford a private attorney)

   • Right against self-incrimination

   • Right against self-incrimination

   • Right to a speedy trial and jury trial

2. Bail Hearing

   At the bail hearing, which is a judicial proceeding, a California judge will decide whether to have you released from jail as you await trial. The judge may require you to post bail (which is a forfeitable amount of money) with the court or deny you bail. You may also expect the court to release you subject to other conditions that do not include paying bail. The judge may modify your bail depending on your ability to pay, your prior criminal history, public safety and your probability of attending future court proceedings.

3. Pretrial Phase

   Your case will only proceed to the pretrial phase when you enter a not guilty plea at the arraignment. The pretrial process usually includes court appearances, motion filing, discovery issues and negotiations (including plea bargains). A pretrial gives your STD defense attorney and the prosecutor a chance to discuss the strengths and weaknesses of a case. The two parties also get to discuss possible plea bargains and intangible factors (such as your history and character) surrounding the case.

   Discovery, in the pretrial process, involves obtaining evidence used to establish a case. Your STD attorney and the prosecution team have equal chances to participate in this process. Both sides should share with each other evidence and witness information. The prosecutors will also inform your lawyer about the evidence or witness statements they want to use against you.

4. Jury Trial

   Once you enter a not guilty plea at your arraignment, your case will go through several pretrial proceedings designed to offer a resolution. If you consistently maintain a "not guilty" plea, your case will proceed to trial (which most likely would be a jury trial). A California criminal jury consists of twelve members representing a cross-section of the community in which an alleged crime was committed. You may have the criminal charge dismissed if the jury unanimously finds you not guilty or face a sentencing hearing (in which a judge determines your sentencing) if the jury unanimously finds you guilty of an HSC 120290 violation.

5. Appeal

   If you believe that a judge made a wrong ruling or prosecutors acted unethically on your case, you have the right to appeal. Instead of taking the form of a new trial, an appeal involves accepting new evidence, retrying the case and hearing witness testimonies. An appellate court is a court that will review your conviction while an appellant is a party filing the appeal. The outcomes of an appeal include having your case remanded, overturned or reversed.

Pursuant to Health and Safety Code 120290(h), the prosecution team is required to refer the complaining witness using a pseudonym. This law mandates the prosecuting attorney to only reveal the witness’ name and other identification information in court using a camera. California courts also have the mandate to seal such information to prevent further disclosure unless requested during discovery.

As the alleged suspect, you won't know the name and other identifying characteristics of the person that accused you until the information is revealed in court. All court orders, petitions, decisions and motions filed by you and the plaintiff will be worded. Such a strategy helps prevent the public from knowing the name and other identifying information of the complaining witness. The identifying characteristics, under HSC 120290(h)(5), details such as name, address, residence area, marital status, race/ethnicity, and age.

The prosecutor’s task is to prove that you had a probable cause for transmitting an infectious disease such as a sexually transmitted disease. Once this fact is proved, the court will order your medical records and attendance. Once the court finds that the provided testimony or your medical records are relevant to the alleged offense, the prosecution team will access the information produced through the court order.

HSC 120290(i)(2) prohibits the prosecution entity from using your medical records, prescriptions, medical devices or medications to prove specific intent. Surveillance records and reports maintained by local and state health official will also not be released or subpoenaed to establish your intent to transmit an infectious disease. You are prohibited from giving medical evidence showing that you didn’t intend to transmit the disease.

With an STD attorney on your side, you can prove your side of the story regarding “transmitting an STD” allegations. The other party may have wrongly accused you or mistaken you for the person who transmitted the disease. Your STD defense lawyer’s responsibility is to give defenses on such facts backed with various types of evidence. Explained below are the legal defenses that may work in your favor:

False Allegations

Your attorney may use this defense when you are in a situation in which the alleged victim falsely says that you transmitted an STD. Being charged with such an offense can be devastating to you especially when the allegations are found to be false. The false accusations may be based on revenge or mistaken identity depending on the victim's state of mind. For the case of revenge, it may be possible for the victim to accuse you of willfully transmitting an STD if you previously had an intimate relationship.

Mistaken identity may be a cause of your wrongful arrest because your physical description happens to be the same as that of the actual perpetrator. You can use this defense if the alleged victim is accusing you of willfully transmitting an STD through rape. Your lawyer can argue that the victim assumes that you are to blame for committing the criminal act.

Factual Innocence

The phrase "factual innocence," when used in your case, may imply that you are innocent of knowingly transmitting an STD. For the prosecutors to build a case on you, they have to seek a court order to obtain your medical records. Once they evaluate the records and find out that you test negative for the alleged STD, it is possible to have your case dismissed. The court may rule that the evidence is insufficient for your case to proceed to further stages.

Your attorney can present a "factual innocence" defense at any phase of the criminal proceedings of your case. Pieces of evidence that may help support this defense include statements made by you, your medical records and expert witness testimony. The expert witness, in this context, can be an epidemiologist or other medical practitioner experienced in the diagnosis of sexually transmitted diseases.

Unconsciousness

A California court may pardon your actions if you were unconscious at the time you allegedly committed a crime such as transmitting an STD. In your defense, your attorney may base your unconscious state of mind on various factors. They include involuntary intoxication and coercion.

Your lawyer can use “involuntary intoxication” defense to argue that you were not in the right mental state to intentionally transmit an STD. Keep in mind that intent is among the elements of a “transmitting an STD” crime. You may be involuntarily intoxicated by being drugged by someone else. For this argument to suffice in a California court, your attorney must provide evidence such as witness statements proving the involuntary incident.

Lack of Probable Cause

For the police officers to arrest you for transmitting disease, they should have a probable cause. The phrase "probable cause," in this context, implies that they should reasonably believe that you committed the crime on the basis of the surrounding circumstances. Your lawyer can file a motion to suppress evidence (under Penal Code 1538.5) if it appears that the police stopped and arrested you without any probable cause. When a judge grants this motion, you will often have your case dismissed.

Entrapment

The "entrapment" defense may suffice in a situation where you would have transmitted disease if other parties had not intervened. You may argue that coercion, threats or harassment of the other party lead you to commit the crime. For example, you may allude that you were held at gunpoint by certain assailants and forced to engage in lewd acts that increase the risks of transmitting an STD.

Coerced confessions may help prove the "entrapment defense." In this case, your STD attorney may argue that the police used illegal or improper interrogation tactics to get a confession from you. The tactics may include beating or threatening harm on you, depriving you sleep water or food or continuing to interrogate you even when you ask for an attorney. A California judge can exclude confessions obtained through this means from evidence or drop the case altogether.

Alibi

"Alibi" is the Latin word for the phrase "in another place." When used in your case, it may imply that you were somewhere else at the time an alleged crime was being committed. You may succeed at having your charge dismissed if you corroborate this defense with various pieces of evidence. They include credit card receipts, surveillance tapes, and witness statements.

Accident

Arguing that you accidentally committed an offense may help eliminate criminal intent as one of the elements used to build your case. In the case of transmitting an STD, your STD attorney may argue that you accidentally put the alleged victim at a higher risk of contracting an STD. Instances of spreading an STD accidentally include sharing a toilet seat or moist objects such as wet clothing or towels with the victim.

As they make it their mission to charge you for committing an alleged offense, California prosecutors will use every legal means possible. One of these means may involve charging you for committing a crime related to a “transmitting an STD” offense. Their allegations may imply that you engaged in the following crimes:

Statutory Rape

Statutory rape, under Penal Code 261.5, refers to the act of engaging in sexual intercourse with a minor (a person below 18 years of age). You may face this charge whether the victim initiated the sexual intercourse or it was consensual. Your criminal history and facts of your case can help the DA (District Attorney) decide whether to charge you for a felony or misdemeanor. Misdemeanor statutory rape attracts punitive measures such as up to $1,000 in fines, probation and up to one year confined in county jail. A felony charge will attract up to $10,000 in fines, up to 4 years in custody or probation.

Sexual Battery

Sexual battery, commonly referred to as sexual assault, involves the act of touching another person’s intimate organ for sexual arousal, abuse or gratification. The specific circumstances of such an offense help determine whether it qualifies as a misdemeanor or felony under PC 243.4. Misdemeanor sexual battery charges attract penalties such as up to six months in county jail, up to $3,000 in fines and probation. Consequently, felony ones draw penalties such as a maximum $10,000 fine, sex offender registration, up to 5 years in a California State prison and probation.

Indecent Exposure

Pursuant to Penal Code 314, indecent exposure is a crime committed by exposing genitals to someone else for sexual abuse or gratification. Though indecent exposure may seem like a less severe offense, its consequences may be devastating. A conviction for this crime may subject you to misdemeanor punitive measures. Such penalties include a maximum $1,000 fine and a maximum 6-month county jail sentence. Prosecutors treat a second indecent exposure offense as a felony, which attracts a state prison sentence.

Lewd Conduct in Public

Prosecutors may charge you for a PC 647(a) violation for engaging in lewd conduct publicly or soliciting someone else to do so. The lewd conduct may involve touching your private parts to offend/annoy someone else or for sexual gratification purposes. A conviction for lewd conduct may subject you to misdemeanor penalties including a fine not exceeding $1,000 and a county jail sentence (of up to six months). A California judge may grant you probation, which involves counseling, staying away from the crime scene and an AIDS test.

Lewd Acts with a Minor

Pursuant to , touching or causing a child to touch him/herself for sexual purposes is considered as a lewd act. You may face this charge provided that the alleged victim is below 16 years of age. Penalties for such an act differ depending on the age of the child and circumstances leading to the crime. They may include fines of up to $10,000, life imprisonment, probation and a state prison sentence of up to 10 years.

Your best shot at battling transmitting an STD charges lies on how well you work with your lawyer and the facts surrounding your case. At Sex Crimes Attorney, our attorneys are ready to hear your side of the story and help better the outcomes of your case in your favor. Throughout California, our clients have continuously relied on us for expert legal services on sex crimes such as abusive sexual contact, rape, and human trafficking among others. Schedule your free, expert legal consultation with our sex related crime attorney today by calling 888-666-8480.