Liabiliity for Transmitting a Sexually Transmitted Disease (STD)
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When Is a Person Liable for Spreading a Sexually Trasmitted Disease?
Sexually transmitted diseases include genital herpes, the human papilloma virus (HPV), hepatitis B, and the human immunodeficiency virus (HIV). Contracting a sexually transmitted disease can mean an increase in developing certain cancers as well as a greater chance of becoming infected with other sexually transmitted diseases.
Can I Sue for Contracting a Sexually Transmitted Disease?
The law provides for several causes of action for transmission of sexually transmitted disease, including:
Negligence is conduct which falls below the standard of care. In contracting a sexually transmitted disease, a main issue in proving negligence is the existence of a duty. A legal duty is an obligation, the performance of which is required by law. Courts have recognized the duty of sexual partners not to spread infection carelessly. The failure to obtain diagnosis and treatment, the failure to inform a sexual partner, the failure to prevent transmission through sexual abstention, and even the failure to use condoms have all been used to demonstrate a lack of due care.
The core of a claim for the negligent transmission of a sexual disease is the requirement that the defendant knew, or should have known, that he or she had a contagious disease before transmitting it to his or her sexual partner. One has "reason to know" of a particular disease if he or she has information from which a reasonable person would infer that the disease exists. One "should know" of a certain disease if a person of reasonable prudence and intelligence would ascertain the fact in the performance of his or her duty to another. The existence of the infection itself, visits to the doctor, and the application of prescription medicine may constitute "knowledge" of the presence of the disease.
In a case of fraud for the contraction of a sexually transmitted disease, the infected party must make some representation regarding his or her infection that is false. The other party must rely on that assertion, believing it to be true. Finally, the reliance by the party on the assertion must be to that party's detriment, which generally involves an assertion by a sexual partner that he or she is free from infection, when that party is in fact infected.
Accordingly, a person who knows that he has a sexually transmitted disease, who fails in his or her duty to disclose that knowledge in order to protect others, and instead misrepresents or conceals that knowledge from his or her sexual partner who then contracts the disease as result of unprotected sex, may be held liable for injuries sustained by the partner.
Intentional Infliction of Emotional Distress
Many individuals who contract a sexually transmitted disease experience emotional distress such as depression, guilt, and isolation. One who, by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. The conduct of transmitting a sexual disease often rises to the level of extreme conduct.
Liability may be imposed regardless of whether or not the defendant intended to cause harm. If the defendant intentionally and unreasonably subjects another to emotional distress which he or she should recognize as likely to result in illness or other bodily harm, he or she will be subject to liability to the other although the defendant has no intention of inflicting such harm.
Another lawsuit brought in cases of sexually transmitted disease is battery. A battery is the intentional, harmful, or offensive touching of another person without the consent of the victim. Sexual activity between parties is the touching while the infection of a sexual disease is the harm. The main question, then, is one of intent. "Intent" refers to the consequences of the act, and therefore a victim must prove that the defendant intended to cause harm by transmitting the virus.
Should I Consult a Lawyer?
Sexually transmitted diseases are embarassing personal issues. However, if you have contracted a sexually transmitted disease, you may be entitled to damages for your injuries. If you have been accused of transmitting a sexual disease, there may be defenses available to shield you from liability. Only a personal injury attorney can evaluate your claim and protect your rights.
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Last Modified: 04-01-2014 04:53 PM PDT
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