Generally, there are various degrees of risks in everything that people do. And, with the increased prevalence of sexually transmitted diseases (STD) such as herpes, Chlamydia and syphilis in the United States, the risk of being infected during sexual relations is fairly high if protective measures are not taken. Even with an understanding the risk of being infected with an STD through a sexual relationship, do people who are infected with STDs during sexual relations have legal recourse against the partners that gave them the STDs? A 33-year-old Wisconsin woman hopes so.
After two years of flirting in person, over social media and through provocative photos sent, a man and woman decided to spend more time together. After spending a day together in Madison in January 2010, the man and woman (who were both married to other people) traveled to Janesville where the physical intimacy between the two escalated, ending in the two having sexual relations in the man’s pickup truck.
Eventually, the woman developed symptoms of an STD, which medical tests confirmed as herpes. While herpes currently has no cure, medications exist to help manage symptoms and can even help limit the chance of transmitting the STD to sexual partners. In a discussion with the woman’s husband, the accused transmitter of the STD admitted to not taking such medication, even though he knew he had herpes for at least 10 years.
The woman filed a lawsuit against the alleged transmitter of the STD, seeking $350,000 in compensation for emotional distress, assault and battery, and intentional infection. Specifically, the woman alleges that the man is “liable for knowingly exposing an uninfected and unknowing partner” to herpes because he failed to disclose that he was infected with the STD prior to their sexual relations.
The man denies that he infected the woman with the STD and said that she should check to see if any of her former partners are infected with herpes. The woman claims that she has only had two partners, her husband and the man with whom she had the affair. After his wife’s diagnosis, the husband has been reluctant to engage in sexual relations with his wife for fear of contracting the disease.
Historically, transmitting an STD has not provided the basis for a lawsuit. However, many states are now enacting specific causes of action — generally called “Wrongful Infection of a Sexually Transmitted Disease” — that allow those unknowingly infected with STDs to sue and recover compensation from partners that infected them. Otherwise, jurisdictions like Wisconsin that do not have specific causes of action for transmitting STDs may allow lawsuits based on negligence or battery legal theories.
To prevail in a negligence lawsuit, including a claim involving the transmission of an STD, four basic elements must be present:
- The defendant owed a duty of care to the plaintiff
- The duty was breached
- The breach of the duty was the cause of the injuries sustained by the plaintiff
- Damages were suffered by the plaintiff
There are a few points to be made about meeting the elements of a negligence lawsuit when alleging that the defendant transmitted an STD.
First, there may be a duty to disclose to all potential sexual partners that a person has an STD. In order for potential sexual partners to give consent to the sexual relationship, they may be entitled to receive all pertinent information about the risks of a sexual relationship, including the chance of acquiring STDs. This duty may extend to people who may not know positively that they have an STD if they should have known or had a reason to know that they may be infected with an STD.
Second, plaintiffs are required to prove that a specific defendant was the person who infected them with the STD. For many people, herpes has a long latency period, sometimes years, before symptoms manifest. Thus, if a person has multiple sexual partners, it may be difficult to state exactly which partner is responsible for the transmission of the disease. However, in situations where people only have one or two partners, proving who the source of the infection is easier.
While some STDs can be cured through medicines, others, including herpes, are currently incurable. Lawsuits involving sexual torts are fairly uncommon; therefore, speak to an experienced personal injury attorney if a sexual partner has infected you with an STD. An attorney can help you seek compensation for your medical bills, long-term treatment of the disease, and pain and suffering.