Interspousal Tort Liability for Infliction of a Sexually Transmitted Disease
![handle is hein.journals/branlaj29 and id is 529 raw text is: INTERSPOUSAL TORT LIABILITY FOR
INFLICTION OF A SEXUALLY TRANSMITTED
DISEASE
I. INTRODUCTION
The public's increasing fear and awareness of sexually transmitted
disease (STD) has caused several courts to consider the necessity of
imposing liability on a sexual partner who transmits such a disease.'
The courts have a long-standing tradition of imposing liability for com-
munication of harmful diseases and they now extend this liability to
communication of STD.2 However, if the partners are or were married,
the courts are not always willing to accomodate the infected partner.
Early courts asserted several reasons for denying a spouse recovery
for infliction of STD. The most common reason was the interspousal
immunity doctrine.3 This doctrine refused either spouse a cause of ac-
tion in tort for any harm which resulted from the actions of the other
spouse. Other reasons offered for denying tort recovery were the availa-
bility to the harmed spouse of bringing criminal charges and for filing
for divorce.
These arguments began to erode in several jurisdictions after the
passage of statutes called Married Women's Acts. The Married
Women's Acts gave women a separate legal identity and separate own-
ership rights in their property. However, several jurisdictions held that
these statutes did not affect the doctrine of interspousal immunity; they
I [T]he consequences of STD are far beyond acute symptoms or their effects on sexual life.
Major impacts of STD are seen in infant morbidity and mortality and human fertility: STD may
cause infertility, spontaneous abortion, ectopic pregnancy, still birth, congenital malformations,
and severe neonatal infections. T. SUN. M.D., SEXUALLY RELATED INFECTIOUS DISEASEs 2
(1986).
2 Berner v. Caldwell, 543 So. 2d 686, 688-89 (Ala. 1989) (court held that allowing a cause of
action for transmission of genital herpes was in line with public policy of Alabama, which seeks to
protect its citizens from infection by communicable diseases).
I See Thompson v. Thompson, 218 U.S. 611 (1910) (applying District of Columbia law);
Bandfield v. Bandfield, 117 Mich. 80, 75 N.W. 287 (1898).
' See State v. Lankford, 29 Del. 594, 102 A. 63 (1917) (court found defendant guilty of
criminal assault upon his wife when he infected her with syphilis).](ViewImageLocal?handle=hein.journals/branlaj29&div=39&collection=&method=preview&ext=.png&size=3)
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Interspousal Tort Liability for Infliction of a Sexually Transmitted Disease
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