In short, yes. Increasingly, more and more states are recognizing the transmission of sexually transmitted disease (“STD”) as a valid cause of action, most often by infected individuals against their sexual partner. The transmission of an STD, also known as a venereal disease, may result in both criminal and civil liability depending upon the jurisdiction’s law where the incident occurs and the specifics of the case.
Although different jurisdictions have different rules regarding what causes of actions are available to an injured plaintiff and what penalties may be imposed on a defendant, most states have laws that criminalize the transmission of incurable STDs. Many STDs may be treated or cured. However, for STDs such as the Human Immunodeficiency Virus (“HIV”), Hepatitis B, or the Human Papillomavirus (“HPV”), they are incurable and may lead to death. The laws and penalties regarding the transmission of specific STDs also vary by jurisdiction.
As noted above, whether a person may be held liable for transmitting a sexually transmitted disease depends on the laws of the local jurisdiction they are suing in, and under what legal theory they are bringing suit. It is important to note that although a state may not have a written law regarding the transmission of a specific STD, that does not mean that plaintiff’s are barred from bringing a lawsuit against a defendant. This is because many states will still recognize the cause of action by applying common law principles.
To clarify, if you as a plaintiff suffered harm, due to the negligence of another, and that harm resulted in damages, such as medical bills, then you will be able to file suit against that person, regardless of whether there is a law on the books that specifically addresses that harm. However, the law does provide for several causes of action for transmission of sexually transmitted diseases, as outlined below.
The most common legal theory upon which plaintiffs base there lawsuits is the theory of negligence. A defendant can be held legally responsible for the plaintiff’s injury under a theory of negligence when their conduct falls below a standard of care.
Typically, conduct consists of actions, but may also consist of an omission where there is some duty to act. The primary factors in ascertaining whether a person’s conduct lacks reasonable care are:
- The foreseeable likelihood that the conduct will result in harm;
- The foreseeable severity of that harm; and
- The level of burden it would take to eliminate or reduce the risk of harm.
vIn contracting an STD, a main issue in proving negligence is the existence of a duty. A legal duty is basically an obligation, the performance of which is required by law. As noted above, many courts have recognized the duty of sexual partners not to spread infection carelessly. The failure to obtain diagnosis and treatment, 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 main aspect of a claim for the negligent transmission of a sexual disease is the requirement that the defendant knew, or should have known, that they had a contagious sexual disease before transmitting it to their partner. A person is deemed to have a “reason to know” of a particular disease if they have information from which a reasonable person would infer that the disease exists.
Thus, one “should know” of a certain disease if a person of reasonable prudence and intelligence would ascertain the fact in the performance of their duty to another. The existence of the infection itself, visits to the doctor, and the application of prescription medicine will often be acknowledged by courts as constituting “knowledge” of the presence of the disease.
However, many states have laws that allow for people with an STD to engage in the act of sexual contact, if they inform the other person about their STD status. In those states, so long as the other person knowingly consents to the sexual relationship, the person with the STD would not be liable for any harm resulting from sexual conduct. This is not true in every state.
The legal theory of fraud or fraudulent misrepresentation is another legal theory available for plaintiffs which are suing based on the transmission of an STD. Generally, in order to prove fraud, one party must knowingly make a false representation or assertion, another party must rely on that representation, and the other party must suffer harm.
Typically, fraud cases for the contraction of an STD occur when a person knows that they have a sexually transmitted disease. However, they then hide, conceal, or otherwise fail in their duty to disclose that knowledge in order to have sexual intercourse, and their sexual partner contracts the disease as a result of sex. Thus, a person who knowingly fails to disclose knowledge of their STDs to a sexual partner, may be held liable for any injuries sustained by the partner.
It is important to note that the duty to disclose the presence of a person’s STDs is on the person who has the STDs. Therefore, public disclosure of a person’s private medical matters, may create liability for invasion of that individual’s privacy, and open up that individual to civil liability, depending on the circumstances. In most states, disclosure of a person’s STD status is strictly prohibited, with only a few exceptions in cases such as medical procedures or in a court of law.
Although it may seem obvious, many individuals who contract an STD experience emotional distress, including: depression, guilt, humiliation, anxiety, or even self-destructive thoughts. A person may recover for such emotional distress and hold the other person liable, if the other person, by extreme and outrageous conduct, intentionally or recklessly caused them severe emotional distress.
Many courts have rules that the conduct of transmitting a sexual disease may rise to the level of such extreme conduct. Often, a claim for intentional infliction of emotional distress for sexcually transmitting an STD is brought along with another legal theory, such as negligence. This is because proving the specific elements of emotional distress and determining damages is often difficult. However, the physical manifestation of the STD in the plaintiff, helps make a case for recovering under the legal theory of intentional infliction of emotional distress.
Another type of lawsuit brought in cases of sexually transmitted disease is battery. A battery is defined as the intentional, harmful, or offensive touching of another person without the consent of the victim. The main factor in proving battery, is the intent of the wrongdoer. If a battery charge is being brought against someone, they may be both civilly and criminally liable.
Criminally, a person may be convicted of knowingly transmitting an STD, resulting in serious criminal penalties. Most states classify the act of knowingly transmitting an STD as a misdemeanor or felony offense, although the classification and penalties vary by state. Criminal penalties for knowingly transmitting an STD may include the following:
- Jail Time and Fines: A conviction for knowingly transmitting an STD may result in jail time of up to one year for a misdemeanor charge, or even up to life in prison for a felony charge. For example, in Texas, if a person knowingly and intentionally transmits HIV or AIDS to a person, they may be convicted for attempted murder. Additionally, fines are often also imposed for convictions of knowingly transmitting an STD. The fines for transmitting an STD typically range from $1,000 to $10,000 in most states;
- Other Penalties: Other penalties for transmitting an STD include having to make restitution payments, harming one’s future employability, and in some cases having to register as a sex offender.
As can be seen, the liability for transmitting a sexually transmitted disease varies heavily by state. Thus, if you have contracted a sexually transmitted disease, you should immediately consult with a well qualified and knowledgeable personal injury attorney. They can both evaluate your case and inform you of your best options for proceeding with your claim.
If you are being charged with transmitting a sexually transmitted disease, you may be facing severe criminal penalties. Thus, it is important to immediately contact an experienced criminal defense attorney to represent you. An experienced criminal defense attorney will be able to help you assert your best defenses, as well as represent you at any legal hearings.