Word To The Wise – Sex Torts: Backlash in Favor of Public Health

Some years ago, acting in my capacity as a volunteer attorney for seniors in legal trouble, I came across an interesting case. An elderly widow, whose husband had died some years previously, had for the first time decided to begin the unfamiliar process of dating again. Unfortunately her very first prospect caused her to fall head over heels in love. I wish I could remember how she met this man, but unfortunately with so many cases rolling around in my head from years gone by, the circumstances of their meeting completely escapes me at the moment.

Nevertheless, this widow revealed to me that she never had “sex” with this man, per se. But the poor soul admitted they had been intimate enough for her to contract genital herpes from him. Perplexed, I fearlessly waded in and asked for more specifics on how this could happen. But she was too embarrassed to give me the gory details. What she did say is that she confronted her lover about him having infected her knowing he already had the sexually transmitted disease. His response was nonchalant and dismissive. He didn’t care, especially because their relationship had already ceased to exist.

It was never clear to me if the man admitted to her his affliction of genital herpes before or after they were sexually “non-intimate”. My client insisted her former boyfriend never told her he had a sexually transmitted disease (STD) until after she confronted him upon finding out she was infected. But I wondered if he might argue that he did tell her of his STD; she agreed to have sex with him anyway; and was now miffed because he had decided to end the relationship. In other words, she wanted to bring a lawsuit as revenge for being romantically rejected.

Because the nonprofit organization I volunteered for only offered telephone advice, I had few options to offer this devastated woman. As far as she was concerned, her ability to have sex with anyone ever again was over and done with. She did not want to give another innocent like herself this terrible disease. This cold and calculating man had robbed her of the romantic side of her life according to her view of things. Worse yet, she said, the shmuck was a school administrator. As far as she was concerned, that was reason enough to trust him implicitly, as if school officials never indulge in misbehavior!

The first thing I did was refer her to the Center for Disease Control – who were not helpful or particularly concerned or sympathetic. In the real world at that time, it appeared to be a matter of “love maker beware”, much as it is in the business world where the rule of the day is caveat emptor (“buyer beware”). My client and I had a long discussion about the dangers of having unprotected sexual contact with people one doesn’t really know. Not to mention I had to disabuse her of the notion that certain professions only contain honorable people. This lovely lady was a babe in the woods when it came to sexual matters, as many older women are (and younger ones too!).

Fast forward a few years until current day, to an interesting article in the Feb. 2011 issue of California Lawyer magazine entitled “Dangerous Liaisons – Sex Torts Expose Careless Lovers to Million-Dollar Liability”. In the recent case Behr v. Redmond, No. INC052881 (Riverside Superior Court jury verdict Jan. 29, 2009), a jury found in favor of the plaintiff for negligence in failing to inform the plaintiff he was infected with genital herpes, which was considered a substantial factor in causing her harm. The final court award was $6.5 million dollars: $2.5 million for future medical expenses, $500,000 for past pain and suffering, $1 million for future pain and suffering, and $2.5 million in punitive damages. The case is currently on appeal. The respondent claims he told the plaintiff he had the STD before he had sex with her the first time. What also must be made clear here is the respondent is a very wealthy man. The plaintiff is of very modest means.

According to the Center for Disease Control, about one-quarter of American adults are infected with the genital herpes virus, which can remain inactive in the body for indefinite periods of time. Symptoms do no exhibit unless the virus reactivates with itchiness or blisters. Many people do not even know they have genital herpes for some time, if at all. Nor do they always get tested even if they do suspect something is wrong, which allows them to rationalize “plausible deniability”. And many refuse to use condoms even if they do know they have genital herpes, which was allegedly the case in Behr v. Redmond.

In consequence, there is anecdotal evidence that juries and judges have little patience for sexual misconduct in “sex tort” cases. The term “sex tort” was coined by a professor at Thurgood Marshall School of Law at Texas Southern University, to describe civil suits alleging the wrongful transmission of STDs, or wrongful behavior committed while having sex. A Los Angeles jury awarded $2.49 million to a plaintiff who asserted her husband infected her with genital herpes (Saadian v. Saadian, No. BC394034 (Los Angeles Superior Court jury verdict Nov. 3, 2010)). An Iowa appellate court upheld a $1.5 million judgment against a dentist infecting a woman with HPV during their affair after telling her he had no STDs (Rossiter v. Evans, 2009 WL5125922 (Iowa Ct. App.)).

As far back as the 1980’s, courts have ruled “the right of privacy is not absolute, and in some cases is subordinate to the state’s fundamental right to enact laws which promote public health, welfare and safety, even though such laws may invade the offender’s right of privacy.” (Kathleen K. v. Robert B., 150 Cal. App. 3d 992, 996 (1984) – court ruled woman could sue partner for negligently or deliberately failing to inform her he was infected with genital herpes). In 1989, a Los Angeles jury awarded $21.75 million (reduced to $5.5 million and the case later settled for an undisclosed amount) to Rock Hudson’s former lover, even though he had tested negative for HIV, because Hudson had actual knowledge of his HIV infection.

According to Linda L. Chezem, a former Indiana judge who is now a public health law professor at Purdue University, “It seems to me that the courts…are establishing a policy of personal liability for a failure to take adequate precautions to not transmit [an STD]…Enough of these cases could result in [changing] public policy.” In California, the state Supreme Court held that a constructive knowledge standard applied in the case of a wife who claimed her husband had reason to know he was infected with HIV because he engaged in unprotected sex with many men prior to and during their marriage (John B v. Superior Ct. 38 Cal. 4th 1177 (2006)).

A serious debate is raging across the land, on how to balance protecting public health versus individual privacy rights and sexual freedom. Deana Pollard-Sacks, the actual professor who was the one to coin the term “sex tort”, is of the belief that nothing less than strict liability should be applied to such cases. To wit: if anyone infects another with an STD, the guilty party must pay for all the injury incurred by a victim, even if the carrier of the disease did not know s/he was infected. Others believe such a stringent standard goes too far, but are willing to discuss imposing a duty on people to get tested for STDs.

Lesson to be learned: Have unprotected sex outside of marriage at your peril. The law may be changing in this realm…

Elaine Roberts Musser is an attorney who concentrates her efforts on elder law and aging issues, especially in regard to consumer affairs. If you have a comment or particular question or topic you would like to see addressed in this column, please make your observations at the end of this article in the comment section.