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7 Fam. Advoc. 26 (1984-1985)
Herpes Breeds New Legal Epidemic: Fraud and Negligence Suits

handle is hein.journals/famadv7 and id is 126 raw text is: Herpes Breeds New Legal Epidemic: Fraud and Negligence Suits BY LYNNE Z. GOLD-BIKIN In the past year, the herpes epidemic has spawned a num- ber of lawsuits that have caused speculation about a cor- responding legal epidemic. The increase in herpes-re- lated litigation raises several important legal and ethical questions: Is herpes a matter best left in the bedroom? Should a suit against someone for transmitting herpes be a civil or criminal action? If a civil action, and pre- sumably a tort, is transmission of the virus a battery, negligence, or fraud? And of what relevance, if any, is herpes in a domestic relations case? The threshold issue in recent herpes cases is whether the transmission of the herpes virus through sexual con- tact between adults is a matter that should be addressed by the courts. The courts have long recognized the constitutional right of privacy in sexual relations between consenting adults. (Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Bird, 405 U.S. 438 (1972).) To bring her- pes actions to court, it is argued, contravenes the right to privacy embraced in the penumbra to the Constitution, and puts the courts in an awkward position as eaves- dropper to couples' most intimate communications. The right of privacy, however, is not absolute; courts regularly entertain actions for rape, incest, prostitution, and other sex-related offenses. Futhermore, because herpes is a serious, incurable disease, should not the per- son who contracts it because of another's negligence or misconduct be able to recover damages? In Kathleen K. v. Robert B., 198 Cal. Rptr. 273 (Cal. App. 2d Dist. 1984), the California Court of Appeals held that the constitutional right of privacy did not pro- tect a defendant charged with tortiously contaminating the plaintiff with herpes. Although acknowledging that courts have recognized the constitutional right of priva- cy in matters relating to marriage, family, and sex, the California court found that the right of privacy only protects an individual from unwarranted intrusion and that the seriousness of the claim justified judicial inter- vention. CIVIL OR CRIMINAL? California and New York contagious disease statutes make it a criminal offense to infect someone with herpes. New York's public health law, for example, provides that any person, who, knowing himself or herself to be infected with an infectious venereal disease, has sexual intercourse with another, shall be guilty of a misde- meanor. Although few criminal actions have been brought for transmitting herpes, the existence of such statutes may affect civil actions when a party alleges that the defendant's actions constituted negligence per se. In the past few years, the vast majority of the herpes cases have been civil actions in which plaintiffs have ar- gued various causes of action in tort. The most common theories for recovery have been negligence, fraud, and battery. The key question in a negligence action is whether the defendant knew with substantial certainty that he or she had herpes and failed to take reasonable care to prevent infecting the plaintiff. Because herpes symptoms are not always apparent (women are frequently asympto- matic), some plaintiffs may have difficulty proving that the defendant had the requisite knowledge. Another complicated issue in herpes cases is what is reasonable care. Is it abstinence from sexual con- tact? Does it require using a condom? Or does it man- date telling one's sexual partner that you are infected? There is little case law in this area, and practitioners may find it difficult to second-guess how a jury will define such subjective terms. Causation is of concern to a plaintiff in a negligence action for herpes. Because herpes is almost exclusively 26

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