Intentionally Infecting Others with HIV No Longer a Felony in California

The dangers of "chemical sex" include addiction, overdose and HIV infection

In a controversial move, California Gov. Jerry Brown has signed a bill downgrading the crime of deliberately exposing a sexual partner to HIV from a felony to a misdemeanor.

The measure comes just as an HIV-positive man in Scotland is being prosecuted for purposefully infecting a number of his Grindr dates with the virus, by insisting on “unprotected sex” or using perforated condoms.

After sex, 26-year-old Daryll Rowe would reportedly send “mocking text messages” to partners boasting he was HIV positive.

“Maybe you have the fever. I came inside you and I have HIV LOL. Oops!” Rowe texted to one partner, while he reportedly said to another in a phone call, “I ripped the condom. You’re so stupid. You didn’t even know.”

Rowe is now facing charges of “infecting four men with the virus and attempting to infect a further six,” a crime considered “Grievous Bodily Harm” in the United Kingdom, carrying a maximum sentence of life in prison.

The new California regulation lessening the crime of deliberately exposing others to the HIV virus was authored by state Democrats Sen. Scott Wiener (D-San Francisco) and Asm. Todd Gloria (D-San Diego), and cosponsored by a number of LGBT groups.

Senate bill 239 (SB 239), which will go into effect on Jan. 1, 2018, does not only apply to those who engage in consensual sex, but also covers those who give blood without telling the blood bank that they are HIV-positive, even when they do so with the specific intent of infecting patients with the contagious virus.

Republican lawmakers such as Sen. Jeff Stone, who is also a pharmacist, and Sen. Joel Anderson of Alpine voted against the bill, arguing it puts the public at risk.

“I’m of the mind that if you purposefully inflict another with a disease that alters their lifestyle the rest of their life, puts them on a regimen of medications to maintain any kind of normalcy, it should be a felony,” Anderson said during the floor debate.

“It’s absolutely crazy to me that we should go light on this,” Anderson said.

In 2015, an HIV-positive California landscape architect who boasted of intentionally infecting others with the virus was sentenced to six months in jail after pleading no contest to a misdemeanor health code violation.

Evidence from 11,000 text messages and three dozen audio clips showed Thomas Miguel Guerra bragging of his exploits and joking about keeping his condition secret from his sex partners.

“Yay lol,” read one text. “Someone getting poz that day. Poor Sucka.”

The San Diego judge who sentenced Guerra couldn’t hide her anger over the case.

“I think that’s a tremendous oversight in the law if this is just a misdemeanor,” said Judge Katherine Lewis, calling the light sentence a “travesty” while insisting the offense should be changed to a felony.

In 2011, a 51-year-old HIV-positive man who said he had intentionally infected “thousands” of partners turned himself in to Michigan police.

“He hits drifters,” testified one of David Dean Smith’s alleged female victims. “He hits people who are young. He hits young women, and from what I understand, he hits men, too. Those are his targets.”

A detective investigating the case said that Smith “intentionally attempted to spread the disease to kill people. His latest fantasy is strangling a woman and having sex with her dead body.”

The ACLU, which cosponsored SB 239, described the new measure as “modernizing” California HIV laws while praising Governor Jerry Brown for reforming “outdated laws that unfairly criminalized and stigmatized people living with HIV.”

In their report, the ACLU said that the law criminalizing the exposure of others to the HIV virus was passed in the 1980s and was “based on fear and the limited medical understanding of the time.”

LGBT activists also praised the new law, alleging that the former legislation unfairly disfavored specific groups.

“California’s outdated and draconian HIV criminal laws have disproportionately harmed people of color and transgender women,” said Melissa Goodman, LGBTQ, Gender and Reproductive Justice Project Director with the ACLU of Southern California.

“With the enactment of this law, our laws will now become more fair, less discriminatory, and will promote treatment and prevention rather than criminalization,” she said.

Rick Zbur, the executive director of Equality California, an LGBTQ advocacy group, said that SB 239 “is not only fair, but it’s good public health,” and will be “good for all Californians.”

“With his signature, Governor Brown has moved California’s archaic HIV laws out of the 1980s and into the 21st century,” Zbur said.

The new law makes the intentional transmission of the HIV virus a misdemeanor punishable by imprisonment in a county jail for not more than 6 months, if the perpetrator acts with the specific intent to transmit the disease to another person.

It also makes it a misdemeanor “to attempt to intentionally transmit an infectious and communicable disease,” punishable by imprisonment in a county jail for not more than 90 days.

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