Can You Sue over Transmission of a Sexual Disease?

Can You Sue over Transmission of a Sexual Disease?

by Ellen Rosner Feig, December 2009

Never underestimate an angry ex with an STD and a creative attorney. So if you may be responsible for giving your ex a sexually transmitted disease, watch out, as you just might find yourself in court.

Making Your Claim

In 1995, 18 year-old Catherine Leleux hired a personal injury attorney after discovering that her Naval recruiter and lover gave her genital herpes. Enraged, Leleux and attorney sued the United States government for a little over $500,000. Unfortunately for Lelux, the U.S. Court of Appeals ruled that she had no case. If sex between the two was nonconsensual, assuming Leleux would never have had sex with him if she had known of the herpes, it would count as battery. The U.S. government could not be held liable for battery. But could her lover?

More specifically, can one sue a sexual partner for transmission of a sexual disease? The answer is yes and no. Since the number of cases of sexually transmitted diseases has grown, more and more people are filing civil lawsuits against their partners. Unfortunately for most of these plaintiffs, a lawsuit over sexually transmitted diseases can be extremely hard to litigate, very expensive to pursue, and of little remedy. It can be impossible to prove which partner transmitted the disease, since many STDs have no symptoms, it can be difficult to show negligence. Finally, views on sexuality change on a state by state basis and judges and juries in conservative areas can make a lawsuit difficult.

It is a personal injury

Most lawsuits over sexually transmitted diseases fall under tort law. Basically, a tort occurs when one person's careless or intentional act causes an injury to another or the property of another. If a tort has occurred, the person committing the act may be held liable for money damages. A New York court, in the early nineties, held that wrongful transmission of "a sexually transmitted disease is a legitimate basis for a lawsuit demanding compensation" from those responsible."

Recently, NFL quarterback Michael Vick was sued by Sonya Elliot, a 26 year-old Georgia woman who claimed the football player had infected her with herpes after an unprotected sexual encounter in 2003. According to the suit, when confronted by Elliott, Vick first denied any knowledge of having the disease but subsequently apologized. No specific monetary damages are outlined in the lawsuit.

Criminal Prosecution and HIV

With the increase in persons affected by HIV and the AIDS virus, new issues surrounding disclosure have arisen. In many states, failure to disclose HIV/AIDS status to a sexual partner may be grounds for criminal prosecution or civil suit. California has passed the "willful exposure" law which makes it a felony when an HIV infected person willfully exposes another to the disease through sex. If successfully prosecuted, the defendant can be sent to prison for a period up to eight years.

It is important to note that the law only applies to those who possess the intent to infect others through sexual activity and engages in very specific conduct. One must know he or she is HIV positive, not disclose this to the partner, and have specific intent to infect the partner. The infecting partner must engage in unprotected vaginal or anal sex (oral is excluded).

Some twenty seven other states in the country have enacted criminal statutes that allow for prosecution of those who know they are infected with the HIV virus and engage in sexual conduct without disclosure. States such as Alabama and South Carolina have extremely broad statutes which invoke penalties if someone "conducts themselves in a manner likely to transmit the disease."

Civil Prosecution and HIV

Cases brought in civil court seeking damages for transmission of HIV normally are brought under tort law including battery, fraud, intentional infliction of emotional distress and negligence. One of the most famous of these cases was that brought by Mark Christian in California. Christian was the sexual partner of actor Rock Hudson and claimed that Hudson had continuously denied that he was infected with HIV. Although Christian was never infected, he won a jury award of $5.5 million for emotional stress caused by exposure to the virus.

It is clear that lawsuits will continue to be filed by those who find themselves waking up to a sexually transmitted disease. Whether or not these suits will succeed remains to be determined within the framework of tort law - is there intent, negligence and/or fraud? As such diseases proliferate, the American courts may face a growing number of suits brought by angry victims.