People Who Pass On AIDS Virus May be Sued

[one...two...tree 2,762]

By ADAM LIPTAK, New York Times

People infected with the virus that causes AIDS may sue the sexual partner who transmitted the virus to them even if the partner did not do so knowingly, the California Supreme Court ruled yesterday.

Bridget B. and John B., as they are known in court papers, started dating in 1998 and married in July 2000. Bridget said that John told her he was healthy and monogamous and that he urged her to have unprotected sex with him. In October 2000, though, she tested positive for H.I.V., the virus that causes AIDS, as did he.

Bridget later learned, her lawsuit says, that John had had sex with men before and during their marriage. She seeks compensation for what she says was John's infliction of emotional distress and fraud.

In his own court papers, John responded that he had tested negative for H.I.V. in August 2000 and that in fact Bridget had infected him.

The immediate issue before the court was how much information about John's sexual history he had to turn over in the litigation. To answer that question, though, the majority ruled, it had to determine what Bridget had to prove to win her case.

John conceded that he would be liable if he had affirmatively known, by means of an AIDS test or medical diagnosis, that he was infected when he had sex with Bridget. But he argued that the information Bridget sought could at best show that he had reason to know he was infected and that such so-called constructive knowledge should not be enough to give rise to liability.

Courts in other states have allowed lawsuits for the negligent transmission of sexual diseases based on both actual and constructive knowledge, but they have only rarely confronted the question in the context of H.I.V.

The California court imposed a relatively broad standard yesterday, allowing suits based on constructive knowledge.

"The burden of a duty of care on defendants who know or have reason to know of their H.I.V. infection is minimal, and the consequences for the community would be salutary," Justice Marvin R. Baxter wrote for the four-justice majority.

A fifth justice issued a mixed opinion, and two dissented.

Katharine K. Baker, a law professor at Chicago-Kent College of Law and the co-author of a law review article on the legal consequences of reckless sex, said the majority had struck roughly the right balance.

"It suggests," Ms. Baker said of the ruling, "that you are responsible for understanding the ramifications of your past sexual activities and must also be responsible in current sexual activity."

Eric S. Multhaup, John's lawyer, said he welcomed some aspects of the decision that limited information his client had to turn over. But Mr. Multhaup said he was mystified by the ruling on the responsibilities of people who may have reason to know they are infected.

"The court did not define what a person is supposed to do with any clarity or specificity," he said. "It's not going to help the people of California in knowing how to go about their social lives."

The justices in the majority said allowing suits based on both actual and constructive knowledge created the right incentives. Otherwise, Justice Baxter wrote, people might avoid being tested to make sure they could not be sued by their partners.

Justice Carlos R. Moreno, in dissent, scoffed at that argument, saying it was hard to believe someone would take liability into account in deciding whether to get tested.

The ruling "potentially licenses invasions into the sexual privacy of all sexually active Californians and may even invite abuse of the judicial process," Justice Moreno said. "One can easily foresee a spate of 'shakedown' or vengeance lawsuits brought by plaintiffs whose motivation is not so much to discover how they contracted H.I.V. as to force lucrative settlements or embarrass a former sexual partner by exposing that person's sexual history."

[Laura_and_IanM 0]

By ADAM LIPTAK, New York Times

People infected with the virus that causes AIDS may sue the sexual partner who transmitted the virus to them even if the partner did not do so knowingly, the California Supreme Court ruled yesterday.

Bridget B. and John B., as they are known in court papers, started dating in 1998 and married in July 2000. Bridget said that John told her he was healthy and monogamous and that he urged her to have unprotected sex with him. In October 2000, though, she tested positive for H.I.V., the virus that causes AIDS, as did he.

Bridget later learned, her lawsuit says, that John had had sex with men before and during their marriage. She seeks compensation for what she says was John's infliction of emotional distress and fraud.

In his own court papers, John responded that he had tested negative for H.I.V. in August 2000 and that in fact Bridget had infected him.

The immediate issue before the court was how much information about John's sexual history he had to turn over in the litigation. To answer that question, though, the majority ruled, it had to determine what Bridget had to prove to win her case.

John conceded that he would be liable if he had affirmatively known, by means of an AIDS test or medical diagnosis, that he was infected when he had sex with Bridget. But he argued that the information Bridget sought could at best show that he had reason to know he was infected and that such so-called constructive knowledge should not be enough to give rise to liability.

Courts in other states have allowed lawsuits for the negligent transmission of sexual diseases based on both actual and constructive knowledge, but they have only rarely confronted the question in the context of H.I.V.

The California court imposed a relatively broad standard yesterday, allowing suits based on constructive knowledge.

"The burden of a duty of care on defendants who know or have reason to know of their H.I.V. infection is minimal, and the consequences for the community would be salutary," Justice Marvin R. Baxter wrote for the four-justice majority.

A fifth justice issued a mixed opinion, and two dissented.

Katharine K. Baker, a law professor at Chicago-Kent College of Law and the co-author of a law review article on the legal consequences of reckless sex, said the majority had struck roughly the right balance.

"It suggests," Ms. Baker said of the ruling, "that you are responsible for understanding the ramifications of your past sexual activities and must also be responsible in current sexual activity."

Eric S. Multhaup, John's lawyer, said he welcomed some aspects of the decision that limited information his client had to turn over. But Mr. Multhaup said he was mystified by the ruling on the responsibilities of people who may have reason to know they are infected.

"The court did not define what a person is supposed to do with any clarity or specificity," he said. "It's not going to help the people of California in knowing how to go about their social lives."

The justices in the majority said allowing suits based on both actual and constructive knowledge created the right incentives. Otherwise, Justice Baxter wrote, people might avoid being tested to make sure they could not be sued by their partners.

Justice Carlos R. Moreno, in dissent, scoffed at that argument, saying it was hard to believe someone would take liability into account in deciding whether to get tested.

The ruling "potentially licenses invasions into the sexual privacy of all sexually active Californians and may even invite abuse of the judicial process," Justice Moreno said. "One can easily foresee a spate of 'shakedown' or vengeance lawsuits brought by plaintiffs whose motivation is not so much to discover how they contracted H.I.V. as to force lucrative settlements or embarrass a former sexual partner by exposing that person's sexual history."

Hmmm...this is a tough one, but makes for a good debate! I for one believe that if either party, knows that they have HIV or Full blown AIDS, partakes in sex should be held accountable for their own actions and basically murdering the other. That is what it is...murder and in a cruel way. But, then again on the flip side, in todays society, it has become a precedence to have oneself tested if you have had even one sexual partner. It's not like the good ole days where you can almost guarantee that the partner you were with was clean and ...that was the only one you slept with if you know what I mean. Now, if you sleep with one, there is a possibility that you have slept with 100!!! You just don't know who they have been with.

I can see arguements on both sides. Also, I would think that it would be like finding a needle in a haystack when it comes to proving that one slept with another knowing that they had HIV/AIDS then intentionally slept with someone as a means of revenge or malice for what has been given to them.

Very hard indeed. Can't wait to see what others think.

Laura Mitchell

[Trumplestiltskin 5,791]

It sounds like what they are trying to do is get people to test themselves and take some accountability for their sexual health. Many people simply don't.

From what I understand, there are a lot of people running around with undiagnosed HIV who simply don't know that they are carrying the disease. In fact, that's the major reason that HIV spreads.

Edited July 4, 2006 by Fishdude

[Fandango 1,439]

this pizzes me off because we've become such a ridiculous litigious society.

You don't want AIDS? Get your partner tested BEFORE you have unprotected sex.

Yep, personal responsibility is a biotch....

[Aymerlu 3]

this pizzes me off because we've become such a ridiculous litigious society.

You don't want AIDS? Get your partner tested BEFORE you have unprotected sex.

Yep, personal responsibility is a biotch....

DITTO! Does a person sue a person when they kiss them and they get a cold? Do you sue your co-workers when someone has a stomach bug that passes through the workplace? I'm sorry, in todays society, if you play with fire and you get burned, it's your own fault. People need to be responsible for their actions and stop being so darned sue happy.

Now, on the flip side, there is a couple that go to my parents church. He is a "retired" minister. He and his wife were together for 15 years and she became very ill. After many tests, it was confirmed she had AIDS. Then he confesses that he had been in a homosexual relationship for years!!!!!! He is HIV positive, but does not yet have full blown AIDS. I just feel differently when AIDS happens to innocent people.

[Trumplestiltskin 5,791]

this pizzes me off because we've become such a ridiculous litigious society.

You don't want AIDS? Get your partner tested BEFORE you have unprotected sex.

Yep, personal responsibility is a biotch....

It is - but the fact is people don't do it. Promiscuity is fine if that's your bag, it just seems reasonable that the person would want to get themselves tested (for their own benefit) if not for that of others.

I don't object to the idea of being able to sue, its really the lesser of two evils. As I see it people need some sort of carrot and stick to make them take their responsibility seriously.

In Australia, for instance I believe its a crime not to vote in the general election - that's might seem drastic (and it would be if you went to jail for it), but its simply a way of making people take responsibility for democracy (as you and I both know - low voter turnouts are a major problem).

So yes it would be silly if a person got sued for passing on undiagnosed HIV, but it should never get to that point - people should have some sort of investment in their own self-interest.

As I see it, you shouldn't have to force people to assume personal responsibility, but as people are generally apathetic what can you do? Is apathy a valid choice?

[one...two...tree 2,762]

we've become such a ridiculous litigious society.

No offense, but I swear if I had a dime for every person who regurgitated that talking point, I'd be feasting like a king.

The fact is we DON'T have a litigious society. Most of us don't have the money to do it and unless a lawyer believes it's going to be a slam dunk case, they won't represent you, especially if you're the 'little guy' trying to sue the 'big guy'.

All this ruling says is that you have constructive reason to believe you are infected with the AIDS virus and you don't disclose that with your partner, you can be held liable. Chance are, it won't ever be a man contracting AIDS from a woman, but I believe it's almost always the woman who contracts it from the man in a heterosexual encounter.

[Fandango 1,439]

this pizzes me off because we've become such a ridiculous litigious society.

You don't want AIDS? Get your partner tested BEFORE you have unprotected sex.

Yep, personal responsibility is a biotch....

It is - but the fact is people don't do it. Promiscuity is fine if that's your bag, it just seems reasonable that the person would want to get themselves tested (for their own benefit) if not for that of others.

I don't object to the idea of being able to sue, its really the lesser of two evils. As I see it people need some sort of carrot and stick to make them take their responsibility seriously.

In Australia, for instance I believe its a crime not to vote in the general election - that's might seem drastic (and it would be if you went to jail for it), but its simply a way of making people take responsibility for democracy (as you and I both know - low voter turnouts are a major problem).

So yes it would be silly if a person got sued for passing on undiagnosed HIV, but it should never get to that point - people should have some sort of investment in their own self-interest.

As I see it, you shouldn't have to force people to assume personal responsibility, but as people are generally apathetic what can you do? Is apathy a valid choice?

here's the way I see it...you don't take responsibility for yourself & you allow an Aids infected person to share your bed without having that person tested.....you can't blame anyone else but your own stupidity.

Now I'd disagree if the AIDS infected person somehow forged a clean report, or summat like that...but ultimately, you shouldn't be able to sue someone else for your own reckless endangerment of your own self

[one...two...tree 2,762]

this pizzes me off because we've become such a ridiculous litigious society.

You don't want AIDS? Get your partner tested BEFORE you have unprotected sex.

Yep, personal responsibility is a biotch....

It is - but the fact is people don't do it. Promiscuity is fine if that's your bag, it just seems reasonable that the person would want to get themselves tested (for their own benefit) if not for that of others.

I don't object to the idea of being able to sue, its really the lesser of two evils. As I see it people need some sort of carrot and stick to make them take their responsibility seriously.

In Australia, for instance I believe its a crime not to vote in the general election - that's might seem drastic (and it would be if you went to jail for it), but its simply a way of making people take responsibility for democracy (as you and I both know - low voter turnouts are a major problem).

So yes it would be silly if a person got sued for passing on undiagnosed HIV, but it should never get to that point - people should have some sort of investment in their own self-interest.

As I see it, you shouldn't have to force people to assume personal responsibility, but as people are generally apathetic what can you do? Is apathy a valid choice?

here's the way I see it...you don't take responsibility for yourself & you allow an Aids infected person to share your bed without having that person tested.....you can't blame anyone else but your own stupidity.

Now I'd disagree if the AIDS infected person somehow forged a clean report, or summat like that...but ultimately, you shouldn't be able to sue someone else for your own reckless endangerment of your own self

Then you should take up a life of celibacy - because anything less than that, you are taking risks with contracting all sorts of STD's. That's a rather simplistic and callous way of looking at it. I agree that people need to take personal responsibility, but you're narrowly defining just what that means. To me, it means being in a monogamous relationship, communicating with your partner about it. But to suggest that a woman who has been in a monogamous relationship with a man for several years and contracts AIDS or some other STD because of her partner's infidelity and saying it's her own fault is ridiculous.

[Laura_and_IanM 0]

this pizzes me off because we've become such a ridiculous litigious society.

You don't want AIDS? Get your partner tested BEFORE you have unprotected sex.

Yep, personal responsibility is a biotch....

It is - but the fact is people don't do it. Promiscuity is fine if that's your bag, it just seems reasonable that the person would want to get themselves tested (for their own benefit) if not for that of others.

I don't object to the idea of being able to sue, its really the lesser of two evils. As I see it people need some sort of carrot and stick to make them take their responsibility seriously.

In Australia, for instance I believe its a crime not to vote in the general election - that's might seem drastic (and it would be if you went to jail for it), but its simply a way of making people take responsibility for democracy (as you and I both know - low voter turnouts are a major problem).

So yes it would be silly if a person got sued for passing on undiagnosed HIV, but it should never get to that point - people should have some sort of investment in their own self-interest.

As I see it, you shouldn't have to force people to assume personal responsibility, but as people are generally apathetic what can you do? Is apathy a valid choice?

here's the way I see it...you don't take responsibility for yourself & you allow an Aids infected person to share your bed without having that person tested.....you can't blame anyone else but your own stupidity.

Now I'd disagree if the AIDS infected person somehow forged a clean report, or summat like that...but ultimately, you shouldn't be able to sue someone else for your own reckless endangerment of your own self

I have to say that I agree with Lisa on this one. Personally, I think that each and every one of us should take responsibility and if we are so worried about it, then we should get tested and make sure that our partners get tested if not already done. And not to mention, just because the first test comes back negative DOES not mean that they are in the clear. I believe you have to go through a serious of test spread out over a year or two (not sure what the time frame is tbh). I have always asked my partners if they have been tested, if they have then great! Even with that though, going by their word is still not a guarantee. I know how many men I have been with and I tell ya, I have to say that I feel like the virgin Mary compared to some of the younger girls that use to work for me at a restuarant I use to manage. I mean these girls are only 18 and have already been with like 20+ guys!!! AND HAVE BEEN HAVING SEX SINCE THEY WERE 14-16. I just can't get over it lol. When one of them asked me once how many men I have been with, she laughed! She literally laughed in my face because I could count on one hand and still have some fingers left!!! I am proud to say that I haven't been with more than what I have been. I respect myself for it. We need to teach responsibility instead of teaching people how to sue. I am surprised that they don't have a class labeled "How to sue so you don't ever have to work again 101"!!!! We play with fire, expect to get burned. Its kind of like playing poker. If you have pocket Aces, and go all in, you take the risk that someone is going to call you with fook all and still beat your sorry a$$!! You have sex without taking precautions...lol you better be ready to pay the piper when he comes knocking...and you may not like the bill he gives you...sorry mam or sir..but you must now pay with your life...

[I'm Gone 60]

They should be shot, not sued.

[Trumplestiltskin 5,791]

here's the way I see it...you don't take responsibility for yourself & you allow an Aids infected person to share your bed without having that person tested.....you can't blame anyone else but your own stupidity.

Now I'd disagree if the AIDS infected person somehow forged a clean report, or summat like that...but ultimately, you shouldn't be able to sue someone else for your own reckless endangerment of your own self

Sure but as I see it, the reasoning behind this law is not necessarily to sue someone - just to establish that there are consequences to not taking responsibility for your own sexual health. If a guy chooses to sleep around, not wear a condom or whatever that's his affair - The point is it should be in his own interest to use protection, and to get tested, but people don't necessarily act according to their their own self interest.

It really depends on whether you feel apathy is a valid choice. The California legislature clearly doesn't, hence this law.

Edited July 4, 2006 by Fishdude

[one...two...tree 2,762]

I have to say that I agree with Lisa on this one. Personally, I think that each and every one of us should take responsibility and if we are so worried about it, then we should get tested and make sure that our partners get tested if not already done. And not to mention, just because the first test comes back negative DOES not mean that they are in the clear. I believe you have to go through a serious of test spread out over a year or two (not sure what the time frame is tbh). I have always asked my partners if they have been tested, if they have then great! Even with that though, going by their word is still not a guarantee. I know how many men I have been with and I tell ya, I have to say that I feel like the virgin Mary compared to some of the younger girls that use to work for me at a restuarant I use to manage. I mean these girls are only 18 and have already been with like 20+ guys!!! AND HAVE BEEN HAVING SEX SINCE THEY WERE 14-16. I just can't get over it lol. When one of them asked me once how many men I have been with, she laughed! She literally laughed in my face because I could count on one hand and still have some fingers left!!! I am proud to say that I haven't been with more than what I have been. I respect myself for it. We need to teach responsibility instead of teaching people how to sue. I am surprised that they don't have a class labeled "How to sue so you don't ever have to work again 101"!!!! We play with fire, expect to get burned. Its kind of like playing poker. If you have pocket Aces, and go all in, you take the risk that someone is going to call you with fook all and still beat your sorry a$$!! You have sex without taking precautions...lol you better be ready to pay the piper when he comes knocking...and you may not like the bill he gives you...sorry mam or sir..but you must now pay with your life...

You could have sex with only one man in your life for 10 years, no problems and then in your 11th year you contract AIDS. You are not responsible for your partner's infidelity. I seriously doubt any judge is going to rule in a woman's favor who has a one-night-stand of unprotected sex with a stranger. The courts aren't going to remove any personal responsibility from the plaintiff - don't you guys ever watch Judge Judy??? Oye!

[Laura_and_IanM 0]

here's the way I see it...you don't take responsibility for yourself & you allow an Aids infected person to share your bed without having that person tested.....you can't blame anyone else but your own stupidity.

Now I'd disagree if the AIDS infected person somehow forged a clean report, or summat like that...but ultimately, you shouldn't be able to sue someone else for your own reckless endangerment of your own self

Sure but as I see it, the reasoning behind this law is not necessarily to sue someone - just to establish that there are consequences to not taking responsibility for your own sexual health. If a guy chooses to sleep around, not wear a condom or whatever that's his affair - The point is it should be in his own interest to use protection, and to get tested, but people don't necessarily act according to their their own self interest.

It really depends on whether you feel apathy is a valid choice. The California legislature clearly doesn't, hence this law.

Yes, it is his affair..UNTIL...he starts another relationship with the next girl. She has the right to know how many women he has been with so she can then at least decide whether or not she wants to carry on a relationship with him. If she chooses to do so, without getting tested, then she should not be able to sue if she gets HIV/AIDS from him. The bottom line is this, in todays society yes you can be monogumous, but and this is a strong but, how many virgins are there in your age group? Think about it. I am now 31, if I wasn't married to Ian and was still out looking for that one special person, my chances of finding a virgin are like one in a million (okay that might be a slight exageration), but if I did find one, he will more than likely be 16!!! You cannot just take the chance that the person you are with hasnen't been with many people because now you have to think of how many men those girls or how many girls those men have been with. Monogumous yes, but irresponsible...no. How many of us have been young and once in the posistion where it was your first time and you had this "OH BABY YOU KNOW I LOVE YOU..YOU KNOW YOU ARE THE ONLY ONE"!

[Fandango 1,439]

here's the way I see it...you don't take responsibility for yourself & you allow an Aids infected person to share your bed without having that person tested.....you can't blame anyone else but your own stupidity.

Now I'd disagree if the AIDS infected person somehow forged a clean report, or summat like that...but ultimately, you shouldn't be able to sue someone else for your own reckless endangerment of your own self

Sure but as I see it, the reasoning behind this law is not necessarily to sue someone - just to establish that there are consequences to not taking responsibility for your own sexual health. If a guy chooses to sleep around, not wear a condom or whatever that's his affair - The point is it should be in his own interest to use protection, and to get tested, but people don't necessarily act according to their their own self interest.

It really depends on whether you feel apathy is a valid choice. The California legislature clearly doesn't, hence this law.

I think that if a person is going to be so cavalier with risking his/her own life, fear of a lawsuit, or fear of establishing blame is not going to do much either.

StevenJinky...I wasn't looking at it from that pov. I was looking at it from the 'first sexual encounter' pov. You have a very valid point there about infidelity after an initial aids test. I didn't even think about that. but again...if a person is going to risk his/her health, the health of his/her partner, I don't think they'll be all 'oh but I might be sued'