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Liability panic for California commission, fighters after Jerry Brown signs Scott Wiener no-felony HIV bill

By Zach Arnold | October 11, 2017

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Want to know what kind of health & safety law sends a chill down the spine of law enforcement and regulators such as the California State Athletic Commission?

KNOWINGLY exposing others to HIV will no longer be a felony in California

Do you feel safer knowing that someone in California can intentionally give you HIV on purpose and not be convicted for a felony?

Outside of traumatic brain injury and paralysis, the highest health & safety risk concern for an Athletic Commission is the transmission of a virus or disease such as HIV and staph. Except if you’re Nevada’s athletic commission and you let a fighter like Kevin Lee compete with staph. Combat sports is legally classified as ultrahazarous for a good reason.

Athletic Commission liability for issues relating to transmission of viruses such as HIV is high. Really high. In 2005, veteran California boxing referee Ray Corona worked a fight in which one fighter had HIV and the fighter in question had shed blood. The Athletic Commission sent Corona a letter to advise him on getting tested for HIV. Corona sued the Athletic Commission for negligence and had to win a fight in the 4th District Court of Appeals in order to prove that the Athletic Commission didn’t have immunity. Google Scholar has the easy-to-read appeals decision here.

The Attorney General fighting Ray Corona in 2009 was Jerry Brown. Eight years later, Governor Jerry Brown signed the most explosive HIV public policy law in the country.

What California’s new HIV law covers

Senate Bill 239 modifies California’s Penal Code to make willful and intentional transmission of HIV through sexual intercourse from one person to another (or a third party) a misdemeanor instead of a felony. The legislation intent behind SB-239 is largely about prostitution.

SB-239 modifies California’s Health and Safety Code regarding general HIV transmission:

SEC. 5. Section 120290 is added to the Health and Safety Code, to read:

120290. (a) (1) A defendant is guilty of intentional transmission of an infectious or communicable disease if all of the following apply:

(A) The defendant knows that he or she or a third party is afflicted with an infectious or communicable disease.

(B) The defendant acts with the specific intent to transmit or cause an afflicted third party to transmit that disease to another person.

(C) The defendant or the afflicted third party engages in conduct that poses a substantial risk of transmission to that person.

(D) The defendant or the third party transmits the infectious or communicable disease to the other person.

(E) If exposure occurs through interaction with the defendant and not a third party, the person exposed to the disease during voluntary interaction with the defendant did not know that the defendant was afflicted with the disease. A person’s interaction with the defendant is not involuntary solely on the basis of his or her lack of knowledge that the defendant was afflicted with the disease.

SB-239 is oriented towards prostitution but the impact of this bill will be far-reaching into many high-risk social activities. Like combat sports.

Current HIV testing rules for Athletic Commission

California Business and Professions Code Section 18712 specifies that any fighter applying for a license or license renewal provide proof of HIV & hepatitis testing up to 30 days before application submission.

Once the license is granted, a fighter has up to 180 days (six months) to get tested again for HIV & hepatitis.

If a fighter isn’t licensed because they test positive for HIV or hepatitis, this information is not disclosed to the public and the appeal is held in a closed hearing. The Athletic Commission cannot disclose to other athletic commissions which fighters test positive for HIV.

Who should be concerned or panicked?

First, the Athletic Commission. The current HIV testing law has a loophole that you can drive a truck through once someone gets licensed. The original push in the Legislature when the BPC section was negotiated involved testing every 90 days. Sacramento said no and demanded a softening to every 180 days.

An increase in exposure to HIV is terrible for referees, judges, photographers, doctors, and fans at ring side. You can’t develop a bulletproof system of protection but it’s hard to minimize risk when you pass a law that gives an opening for fighters to intentionally give others a costly disease like HIV.

Second, fighters — especially poor or minority athletes. Vulnerable is a strong but accurate word to describe the situation. Many are uninsured and cannot afford out-of-pocket to pay for their own HIV testing. If someone contracts HIV and doesn’t know it, they can give it to another fighter or athletic commission staff member. If someone contracts HIV and knows it and decides to spread the virus to others, there’s no longer a stigma or fear of criminal punishment. This could disproportionally impact those who are the least protected.

What can the Athletic Commission do to mitigate SB-239 risks?

The Athletic Commission cannot pass a rule or regulation that conflicts with the Business & Professions Code statute regarding the 30/180 day testing rule. In an ideal world, the AC would pass a regulation to have fighters tested more frequently.

So now what?

Given the political temperature of the Sacramento Legislature, the Athletic Commission needs help from their Medical Advisory Committee (AC doctors) and UFC-backed lobbyists at Platinum Advisors to amend the BPC code on testing. The most reasonable proposal would be to amend the BPC code to keep the 30/180 day testing rule in place but to add a section requiring fighters to take an additional test a week before they fight. This would give the front office time to process test results in a timely manner.

Every stakeholder is impacted by SB-239. I’m not happy at all if I’m UFC or Bellator. It’s not good for business to have an increased risk of HIV transmission. I’m scared to death if I’m the athletic commission because the fighters and employees are at an increased risk. Nobody wins here except trial attorneys.

The impact of SB-239 on the Athletic Commission

You have to be a little reckless in order to be a fighter in a sport that is legally classified as ultrahazardous. There are lots of smart, law-abiding participants. There are also lots of fighters who are reckless in and out of the ring. Recklessness is engaging in substantial and unjustifiable risk. Not every fighter is a member of a seminary.

The impact of SB-239 is instant in the news headlines it generates. It’s a giant neon sign to lots of careless individuals that you can intentionally inflict a lifetime of emotional distress and financial hardship without much legal consequence. The poster child for this behavior is Thomas Guerra, convicted in San Diego and sentenced to only six months in prison by a judge who really wanted to throw the book at him.

HIV isn’t the death sentence that it once used to be (thank God). However, you would be hard pressed to find a District Attorney who would refuse to prosecute a person for murder/manslaughter if their intentional transmission of HIV resulted in a victim’s death. The cost of HIV drugs is expensive.

California has a significant base of boxers and MMA fighters. If the stigma of transmitting HIV to a third party is gone because of SB-239, what can the Athletic Commission do to decrease the risk of HIV transmission to other fighters, officials, inspectors, and even fans at ring side? An emergency plan is needed.

Topics: Boxing, CSAC, Media, MMA, UFC, Zach Arnold | 1 Comment » | Permalink | Trackback |

One Response to “Liability panic for California commission, fighters after Jerry Brown signs Scott Wiener no-felony HIV bill”

  1. […] from what happened to Marcos Rosales. Censorship and gamesmanship are not the right lessons. Since intentional transmission of HIV is no longer a felony in California, it is vital that Consumer Affairs informs all members of the California State Athletic Commission […]


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