If you contract a Sexually Transmitted Disease (STD), you may be wondering whether you can sue the person who gave it to you. The answer is, it depends, largely on your state laws and whether your sexual partner knew he or she had the STD before giving it to you.
What are Specific Causes of Action?
Many states recognize wrongful infection or transmission of an STD as its own cause of action. Additionally, while there are no federal laws that require a person to disclose they have an STD, there are state laws regarding telling sexual partners if you have certain STDs, such as HIV/AIDS or herpes.
For example, in California, it’s considered a felony for an individual who is HIV-positive to engage in unprotected sex, fail to tell their partner about their status, or engage in sex with the intent to infect their partner. If found guilty, the person can face up to eight years in prison.
Can My Partner Be Found Guilty of Negligence?
Yes. Regardless of your state, if your partner knew he or she was infected with an STD and failed to inform you, the person may be sued for negligence. To prevail in an STD negligence case, you would need to prove the following:
- Your partner knew he/she had an STD;
- Your partner had a duty to inform you or duty to prevent the transmission of his/her STD;
- This duty was breached; and,
- As a result of the breach of duty, you contracted the STD.
In negligence cases, the plaintiff only needs to demonstrate that a reasonable person in the defendant’s position would have told his/her partner that he/she had an STD before having sex.
Further, negligence does not require that the defendant had ill intent. In that regard, a defendant who used protection (ex: a condom) can still be found negligent and liable for damages to the plaintiff.
What is the Penalty for Failing to Inform Your Partner of Your STD?
The penalty for failing to inform a sexual partner when you have an STD varies by state. New York, for instance, says an infected person has a duty to warn their sexual partners if they have an STD, because having one can be a deal-breaker.
Many states consider it both a civil and criminal offense, and some states, such as California, consider it a felony in certain circumstances.
Can I Sue for Sexual Battery?
Yes. Regardless of the state where you reside, you can sue your partner for sexual battery. For this cause of action, you would argue that not disclosing the STD was tantamount to unconsented sex. However, whether you prevail depends on the facts and circumstances surrounding the sexual encounter.
What is Intentional Exposure to a STD?
Intentional exposure to a STD refers to a partner intentionally exposing their sexual partner(s) to a disease. This means the individual knew that he or she was infected and intentionally gave the disease to their partner(s).
In many states, a partner has a duty to warn all of their sexual partners about any STDs that they have contracted. To successfully sue for intentional exposure to a STD, a plaintiff must prove that the partner:
- Knew or should have known they had the STD;
- Did not give notice to the plaintiff; and
- Knew the sexual contact could transmit the STD.
Should I Consult an Attorney?
It is difficult to prove that your partner intentionally or negligently exposed you to an STD. A personal injury lawyer will help you determine whether you have enough evidence to file a lawsuit. The lawyer will also represent you in court and settlement negotiations if you decide to seek damages.