People Who Pass On
AIDS Virus May be Sued
July 4, 2006
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
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
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
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."