Barry W. from San Francisco asks:
Q: "I was dating a guy for a while. Prior to dating him, I had not been very experienced sexually and had no STDs. We talked before becoming intimate regarding our status and he told me that I had nothing to worry about, because he was 'clean.' After a couple of months, I was diagnosed with herpes and I confronted him. He said he 'had a case of poison ivy' once in his crotch a year ago where there were blisters, but it had never come back and, since he had never actually been told by a doctor he had herpes, he said that he was being honest because he didn't actually know he was a carrier. Obviously we broke up, but I want to know: Can I sue him for infecting me? What is my responsibility going forward so I don't get sued?"
A: Unfortunately what happened to you happens all too often, and I have represented husbands, wives and partners when they have been deceived and infected with HPV, herpes and HIV. The law is clear: it is illegal, criminally and civilly, to knowingly or recklessly transmit an STD.
The California Court of Appeals has held that "a certain amount of trust and confidence exists in any intimate relationship, at least to the extent that one sexual partner represents to the other that he or she is free from venereal or other dangerous contagious disease."
The basic premise underlying these old cases — consent to sexual intercourse is negated by one partner's fraudulent concealment of the risk of infection with venereal disease — is equally applicable today, whether or not the partners involved are married to each other.
A person who unknowingly contracts a sexually transmitted disease such as herpes may maintain an action for damages against one who either negligently or through deceit infects him or her with the disease. In 2006, the Supreme Court stated "we agree ... that [t]o be stricken with disease through another's negligence is in legal contemplation as it often is in the seriousness of consequences, no different from being struck with an automobile through another's negligence."
Since 2006, the court has evolved the standard from actual knowledge to also include what is called constructive knowledge, i.e., what people should have known. Therefore, "people suffering from (or having reason to believe they may be infected with) genital herpes (or other STDs) generally have a duty either to avoid sexual contact with uninfected persons or, at least, to warn potential sex partners that they have herpes before sexual contact occurs."
This is true even if they are symptom-free at the time of the transmission as the risk of transmission, although lower, still remains. There is an affirmative obligation to disclose one's status even if you are not asked.
People who infect others with STDs without disclosing their status beforehand can be held liable for not only negligence but intentional wrongs such as battery. Battery is the harmful and/or offensive touching of another, without consent. A person's consent to sexual intercourse may be determined to have never been given when there has been a fraudulent concealment of the risk of infection with a venereal disease.
Likewise, it may also form the basis for a claim for fraud and/or intentional infliction of emotional distress. In the case of transmission of HIV/AIDS, California Health and Safety Code 120291 states that if people know they have HIV/AIDS and have unprotected sex, without disclosing their status and with the intent to infect the other person, they are guilty of a felony and can be punished by imprisonment in state prison for up to eight years.
So, Barry, the answer to your question is that you can sue the man who infected you and, if you conceal your condition and do the same to someone else, you too can be sued. Trust me, it's better to discuss these things in private before anything happens. The last place you want to be discussing your private affairs, such as your STD status, is either across the table from a lawyer or in front of a jury in a courtroom.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.