State HIV Laws
HIV-Specific Criminal Laws, State Guidelines for Health Care Workers with HIV, Youth Access to STI and HIV Testing and Treatment, HIV Testing

While we have made an effort to ensure that this information is correct and current, the law is regularly changing, and we cannot guarantee the accuracy of the information provided. This information may not be applicable to your specific situation and is not, and should not be relied upon, as a substitute for legal advice.

**Note: The analysis of California law in this section of the Sourcebook will be updated shortly. This section was published in 2017. However, effective January 1, 2018, several of California’s HIV criminal exposure laws were repealed and/or amended. These include CAL. HEALTH & SAFETY CODE § 120291 (2017), CAL. PENAL CODE § 647f (2017), CAL. HEALTH & SAFETY CODE §120292 (2017), and CAL. HEALTH & SAFETY CODE § 1621.5 (2017). Please do not rely on the analysis in this current version.

HIV-Specific Criminal Laws

For detail on the selected state law and cases interpreting it, download California: Analysis & Codes, an excerpt from CHLP’s recently updated compendium of HIV- and STI-related criminal laws and civil laws relating to public health control measures in all 50 states, the military, and U.S. territories. 

To view the publication in its entirety, see HIV Criminalization in the United States:  A Sourcebook on State and Federal HIV Criminal Law and Practice. Methodology is explained in the Introduction (page 5).

Sex: 
Yes
Blood, Tissue, Organ, and Semen Donation: 
Yes
Sex Work/Solicitation: 
Yes
HIV-specific Sentence Enhancement: 
Yes
General STI/Communicable Disease Laws: 
Yes
General Felony Laws Used Against PLWH: 
Yes
HIV-Specific Felony Laws: 
Yes
STI/Communicable Disease Misdemeanor Laws: 
Yes
State Guidelines on Health Care Workers with HIV
Health Department Policies: 
Yes

Persons, including students and trainees, whose activities involve physical contact with patients or with blood or other body fluids from patients in the health care setting.

Calls for Voluntary Testing of Health Care Workers with HIV: 
Yes

Voluntary Testing.

Patient Notification of HIV Status for Health Care Workers: 
Yes

If procedures place patients at substantial risk of infection, HCWs should consult with an ERP concerning responsibility to disclose their status to their patients prior to performing such procedures. In absence of a documented exposure incident, DOH does not recommend routine post-treatment notification.

Practice Restrictions Based on HIV Status/"Exposure-Prone Procedures": 
Yes

Because of low risk of transmission of HIV, general restrictions are not recommended. However, there may be certain stages of disease or a combination of other factors that may place patients and/or HCWs at elevated risk. Individual HCWs and their personal physicians should review the HCW’s practices and modify any practices. The appropriateness of any such restrictions can be reviewed by ERPs convened by the Department of Health Services.

Minors' Access to STI and HIV Testing and Treatment

These summaries highlight key aspects of state laws governing the rights of minors to consent to testing and/or tretment for sexually transmitted infections (STIs) and HIV. Any such summary cannot capture the details and nuances of individuals state laws. Although roughly a third of the states permit health care providers to inform a minor's parents that their child is seeking STI-related services, none require it. Also, the law is fluid, and these summaries may not reflect recent legislative change in a particular state.  

Every state in the country allows minors to consent to STI testing and care without parental approval, although a number of these set an age threshold for the right to consent without parental involvement. In these states, the minimum age ranges from 12 to 14 years of age. 

As of the date of this posting, thirty-one states allow minors to also consent to HIV testing and treatment without parental approval. 

Minor May Consent to STI Testing and Treatment: 
Yes

Minor must be at least 12 years old.

Minor May Consent to HIV Testing and Treatment: 
Yes

Persons 12 years of age or older may consent to HIV testing and treatment.

HIV Testing

Unlike testing for most other infectious diseases, testing for HIV involves possible benefits as well as social, economic, and legal consequences that typically are not apparent or known to an individual considering testing. HIV-related testing is the gateway to health-preserving treatment; it also can be the basis of criminal prosecution for those who are sexually active, or relied on to exclude individuals who test positive for HIV from programs, employment, or insurance. Although state and federal laws prohibit much of this discrimination against people with HIV, the ability to enforce those rights usually depends on access to free legal services, which are increasingly limited and not available at all in roughly half of the states in the United States. Thus, the potential negative consequences of HIV testing at a particular time or location might inform an individual's decision of whether or when to get tested for HIV; or whether to test anonymously or through a "confidential" testing process that reports their test results and identifying information to the state but maintains the confidentiality of those results.  

The American Medical Association has long defined informed consent as a process of communication between a patient and physician that results in the patient's authorization or agreement to undergo a specific medical intervention. Although informed consent is a legal concept rather than a medical one, many states use definitions of "informed consent" for purposes of HIV testing and medical procedures that in fact are inconsistent with the accepted legal definition, e.g., they do not require that an individual receive information or sometimes even notification that they are about to be tested for HIV. The Center for HIV Law and Policy (CHLP) accepts the legal and court-affirmed definition of informed consent; therefore, state protocols that call for "opt-out" testing (a patient is tested for HIV unless she/he objects) or that mirror general consent approaches are not counted as "informed consent" laws even in those instances where the state legislature has characterized their state law as requiring "informed consent." In short, CHLP does not consider or count laws that allow a patient's silence or general consent as granting authority to do confidential HIV testing as informed consent laws.

Informed Consent Required: 
No
Pre-Test Counseling: 
No
Post-Test Counseling (Only for HIV Diagnosis): 
Yes

Counseling must be offered to a patient with a confirmed HIV positive test. Counseling must be offered to notified partners and contacts.

Anonymous Testing Available: 
Yes

Testing must be made available anonymously. Free anonymous testing is available at designated anonymous testing sites.

Partner Notification Required: 
Yes

Notification to sexual and needle sharing partners of possible exposure to HIV is required.

Files
PDF icon California - Excerpt from CHLP's Sourcebook on HIV Criminalization in the U.S..pdf 578.31 KB

Related

The 2017 Modernization of California’s HIV Criminal Exposure Laws: What Did It Do, Who Will It Affect?, Center for HIV Law and Policy (2017)
Resource
Published November, 2017
Compendium of State HIV Testing Laws: Quick Reference Guide for Clinicians, National HIV/AIDS Clinicians' Consultation Center, University of California at San Francisco (2011)
Resource
Published September, 2011
Guidelines for HIV-Positive Health Care Workers, The Center for HIV Law & Policy (2008)
Resource
Published March, 2008