Sexual Privacy at Issue in Cal. Supreme Court

[lawrocket 3]

On Tuesday, in a case that could have major implications for sexual privacy and, in particular, tens of thousands of people with HIV, the California Supreme Court seemed ready to impose liability on those who actually know — or should have some idea — that they have a sexually transmitted illness, but fail to tell their sex partner.

The issue is whether a person be held liable for failure to disclose to a sexual partner the fact that the person has a sexually transmissible disease only when the person actually knows he or she has a sexually transmissible disease , or when the person reasonably should have known he or she has such a disease?

In the underlying suit, a woman sued her her husband for fraud and negligent infliction of emotional distress because he either knew or should have known he had HIV. The wife alleges he gave her HIV, and did not disclose his history of having unprotected sex with many gay men.

Apparently, the Court is going to end up creating a new tort. The Court's questioning did not seem to indicate that they were not going to. Rather, it looks like the question will be where they draw the line of disclosure.

Does a spouse have a higher duty to warn than a boyfriend or girlfriend? What is the duty to warn for a one-night stand?

This could be interesting. In the California Constitution there is a "right to privacy" protection that embraces sexual relations. So another issue for the court is whether it can order that the husband answer questions about his sexual history, since it may violate that privacy right.

My wife is hotter than your wife.

[quade 4]

The government should stay out of the bedroom.

How does the wife plan on -proving- the husband gave her HIV?

quade -
The World's Most Boring Skydiver

[lawrocket 3]

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The government should stay out of the bedroom.

In general, I agree with you. But in circumstances like this, I believe that exceptions should be made. Fro example, it's a felony in California to knowingly give someone HIV. After all, that should be considered homicide because it's a death sentence.

Paul - I believe that for every wrong there should be a remedy. If you disagree, tell me why. If you agree, how would you recommend that the wife receive a remedy without court intervention?

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How does the wife plan on -proving- the husband gave her HIV?

By finding out what his HIV status was before. He did supposedly have a test result that she saw that showed him to be negative. But, he had full-blown AIDS within a year, and she had it within 4 months of that test.

The privacy argument is where the problem of proof comes in. If she can't get information on his past, through discovery then she will have a hard time proving her case.

Believe it or not, she may be able to do it since one of his defenses is that she gave it to him. In stating that defense, he may have waived his privacy, because to do it he has to show that he didn't have it before and she gave it to him.

My wife is hotter than your wife.

[Nightingale 0]

Sometimes you can look at the genetics of the virus. HIV mutates, but a person who has been infected by another will have a very similar virus as the person that gave it to them. After a long time, it's harder to tell, but if it's recent, it's more likely to be similar.

[quade 4]

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How does the wife plan on -proving- the husband gave her HIV?

By finding out what his HIV status was before. He did supposedly have a test result that she saw that showed him to be negative. But, he had full-blown AIDS within a year, and she had it within 4 months of that test.

Ok, NOW convince me that SHE didn't have a secret life of her own?

How ya gonna do that?

quade -
The World's Most Boring Skydiver

[lawrocket 3]

Gee, Paul, as I told you - that's exactly what he's saying.

My wife is hotter than your wife.

[Amazon 7]

Maybe we needs a SCARLET LETTER H for all those diagnosed with HIV

[lawrocket 3]

I think that's going a little too far, Jeanne.

However, when someone knows he or she has HIV and has unprotected sex with somebody, should there be any consequence suffered as a result of this? Should there be an affirmative duty to say, "I've got HIV?"

What about an affimative duty to disclose gonorrhea, syphilis, chlamidia, HPV, herpes, etc.?

What about a duty to use a condom?

Or, what about a situation where the prospective sexual partner is told falsely, "I do not have HIV."

These are actually pretty important policy questions. You know, people lives depend on this.

My wife is hotter than your wife.

[brierebecca 0]

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The privacy argument is where the problem of proof comes in. If she can't get information on his past, through discovery then she will have a hard time proving her case.

Believe it or not, she may be able to do it since one of his defenses is that she gave it to him. In stating that defense, he may have waived his privacy, because to do it he has to show that he didn't have it before and she gave it to him.

This is an interesting argument in the context of the rape shield laws. It's essentially the same thing. I don't think anyone thinks rape shield laws are a bad thing (blocking evidence of a victim's sexual history in a rape case), but this case has different ramifications.

He could argue that he got the virus from his wife in some way other than sex, and not open up the sexual history can of worms. Also, it was my impression that in order to examine a victim's sexual history, the victim has to make allegations about his or her character in general, and the other side can rebut with specifics.

Brie

"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie

[lawrocket 3]

It's in a different context to the Rape Shield laws. Those laws are created to avoid putting a victim's history at issue when the case is about whether Defendant raped Victim.

In this context, both parties have "opened the door" to examination of their sexual histories. Had husband simply said, "I didn't give it to her" then he's got a far better argument for maintaining his privacy. But when he pled, "She gave it to me" then in a balance of equities, he can't use it against her but not allow it to be used against him.

This is a mighty important case, policy wise.

My wife is hotter than your wife.

[Richards 0]

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However, when someone knows he or she has HIV and has unprotected sex with somebody, should there be any consequence suffered as a result of this? Should there be an affirmative duty to say, "I've got HIV?"

What about an affimative duty to disclose gonorrhea, syphilis, chlamidia, HPV, herpes, etc.?

I think yes. If there is a present risk ie infection (any STD) then the person should be obliged to inform someone before sex.

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What about a duty to use a condom?

As long as he has informed the other person about his condition if the other person is dumb enough to have sex without a condom knowing he is HIV positive then Darwins law precedes any other law.

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Or, what about a situation where the prospective sexual partner is told falsely, "I do not have HIV."

Again he has knowingly failed to disclose a hazard to the person and should face criminal charges

I do not agree that a person should be obliged to disclose his/her sexual past as in that case there is the posibility of infection but not the certainty it is there.

Richards

My biggest handicap is that sometimes the hole in the front of my head operates a tad bit faster than the grey matter contained within.

[MC208B 0]

Some guy in Vancouver, WA that got HIV decided to spread the misery around. It killed his wife, several other women and a guy. He got 10 years in the joint. Later died from his disaease.

HIV is a death sentence. People that spread it around (intentionally) should be treated as killers, they are!

[Richards 0]

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Some guy in Vancouver, WA that got HIV decided to spread the misery around. It killed his wife, several other women and a guy. He got 10 years in the joint. Later died from his disaease.

HIV is a death sentence. People that spread it around (intentionally) should be treated as killers, they are!

I agree.

Richards

My biggest handicap is that sometimes the hole in the front of my head operates a tad bit faster than the grey matter contained within.

[Samurai136 0]

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Maybe we needs a SCARLET LETTER H for all those diagnosed with HIV

That's a good idea but people might be mistaken for Rimmer....

"Buttons aren't toys." - Trillian
Ken

[akarunway 1]

How about we all be decent human beings and refrain from such behavior and if we didn't in our younger days be kind and not to pass any diseases along?

I hold it true, whate'er befall;
I feel it, when I sorrow most;
'Tis better to have loved and lost
Than never to have loved at all.

[likearock 2]

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The government should stay out of the bedroom.

In general, I agree with you. But in circumstances like this, I believe that exceptions should be made. Fro example, it's a felony in California to knowingly give someone HIV. After all, that should be considered homicide because it's a death sentence.

Is that still the case now that anti-HIV drugs have made such advances in extending the life of those with AIDS? Will this legal obligation now extend to other diseases that never totally go away like Hepatitis C?

[lawrocket 3]

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Is that still the case now that anti-HIV drugs have made such advances in extending the life of those with AIDS?

Yes, it's the case. Sure, a person with HIV might get killed in a car accident beforehand. But, do you honestly think that getting HIV is nothing more than a nuisance to be managed like high blood pressure?

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Will this legal obligation now extend to other diseases that never totally go away like Hepatitis C?

That's probably what the court will decide. Personally, I think it should, and the difference will be in damages. Give someone HIV, yeah, that'll be a large amount of damages. Hepatitis, which can kill you, that's another big one, though not like HIV. Herpes and HPV will be lower. Those treatable by antibiotics will likely be much less.

It's the way I see it. Of course, this court will likely be trying to decide what duties exist with what relationships. I think this will al come down to a decision abotu what such infections are worth - much like car crashes.

But don't hold your breath about there being a flood of litigation. Unless the infector has substantial assets, there would be no real point in seekign such a suit.

My wife is hotter than your wife.

[brierebecca 0]

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That's probably what the court will decide. Personally, I think it should, and the difference will be in damages. Give someone HIV, yeah, that'll be a large amount of damages. Hepatitis, which can kill you, that's another big one, though not like HIV. Herpes and HPV will be lower. Those treatable by antibiotics will likely be much less.

It's the way I see it. Of course, this court will likely be trying to decide what duties exist with what relationships. I think this will al come down to a decision abotu what such infections are worth - much like car crashes.

If it's a tort, what level of mens rea would you require in order for there to be damages? Intent? Recklessness? Negligence?

Brie

"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie

[lawrocket 3]

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If it's a tort, what level of mens rea would you require in order for there to be damages? Intent? Recklessness? Negligence?

It's a good question, but may not be necessary. The causes of action are: 1) Fraud; and 2) Negligent Infliction of Emotional Distress. The culpability standards are already established. For fraud it's either intentional or reckless. For NIED, it's negligence.

It seems to me, without having read the briefs, that there comes an issue in the "duty" elements: whether a person has a duty to disclose HIV infection in light of the protection of privacy under the Cal. Constitution. If yes, to whom does the duty extend and what are must be disclosed?

I don't see the court actually creating a new tort, like what it did when it created the "Bad Faith" insurance denial tort.

My wife is hotter than your wife.

[likearock 2]

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Will this legal obligation now extend to other diseases that never totally go away like Hepatitis C?

That's probably what the court will decide. Personally, I think it should, and the difference will be in damages. Give someone HIV, yeah, that'll be a large amount of damages. Hepatitis, which can kill you, that's another big one, though not like HIV. Herpes and HPV will be lower. Those treatable by antibiotics will likely be much less.

Okay, Rocky, you've tipped your hand. If you had your way all communicable diseases would be subject to civil suit. Perhaps the damages might vary, but the lawyer would still get his fee!

[lawrocket 3]

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Perhaps the damages might vary, but the lawyer would still get his fee!

What's the point of getting a fee if I can't recover it?

My wife is hotter than your wife.

[freethefly 6]

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Is that still the case now that anti-HIV drugs have made such advances in extending the life of those with AIDS?

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Yes, it's the case. Sure, a person with HIV might get killed in a car accident beforehand. But, do you honestly think that getting HIV is nothing more than a nuisance to be managed like high blood pressure?

Even when a person infected is able to get meds it is not all that easy to maintian as the side effects can be just as bad. HIV patients will go through a wide range of meds to combat the onslaught of AIDS. Having to do so can have a devestating effect on ones well being. There is also the rejection that one will experience. Sometimes the prejudice is open, other times it is subtle, yet still there. There is a lot of stigma attached to AIDS that is not associated with other diseases that tends to lead to depression and often suicide. Suicide rates are extremely high with HIV compared to other diseases.
If a person knowingly infects another, that person is guilty of attaching an unwarranted burden to another all the while knowing what the newly infected will have to deal with. Any person who knowingly does this should be dealt with harshly as they are well aware of the pain that they are causing upon another.
I have been infected for 11 years now and I am well aware of what a person has to deal with and that getting meds is not easy to do. No meds for over 4 years now. High viral load and low t-cell count. Living with this is hell and often depressing. The court should view it as they would any crime that injures a person.

"...And once you're gone, you can't come back
When you're out of the blue and into the black."
Neil Young

[lawrocket 3]

Possibly the best answer your could get. HIV is like making someone a quadriplegic. Sure, the person is alive, but the quality of life drops substantially, the medical costs are staggering, and the life expectancy drops dramatically.

My wife is hotter than your wife.

[tbrown 26]

About twenty years ago I happened across a bulletin board at a Bay Area community college that had a notice, or an essay posted. The essay advocated warning your date that you would sue them if they gave you a STD. I'd been working for the last few years as a paralegal in a product liability/personal injury/wrongful death project - asbestos lawsuits on behalf of many retired shipyard workers.

I concluded that this essay advocating lawsuits over STDs was written by some well meaning college sophomore who had no idea in the world what he or she was talking about. The person obviously thought the legal profession could ride to the rescue, like the cavalry. They had no idea at all of what a nasty business litigation is and how much "fun" you would have being cross examined about the details of your sex life by some unprincipled viper of a defense attorney. Or that even if you won a judgemnet, your health insurance plan would then demand reimbursement from any judgements or settlements you received. And in the end, you'd still be sick and very likely friendless as well.

Maybe the author of that essay is a sitting justice on the Cal State Supreme Court, nothing surprises me anymore. I mean this is a state that mails me things I don't want to read, then bitches and moans on the envelope about how many trees they had to kill to print whatever piece of crap it is they mailed me that I don't want to read in the first place. So why shouldn't they open up a new can of worms, uh avenue of redress, for "the people".

AIDS transmission among married couples is a worldwide problem and a leading cause of heterosexual transmission. And the offender is usually (not always) the husband, who thinks it's prefectly okay to stop by the local brothel on his way home, but that wearing a conom with his own wife is somehow "unthinkable". It's a tough problem that flies in the face of a lot of cultural norms, but only in the Peoples' Soviet of Kalifornia does anyone seriously think litigation can solve the problem.

Your humble servant.....Professor Gravity !

[lawrocket 3]

I don't believe for a second that litigation can "solve the problem." I gues you can think about it like this:

1) Has a person who contracted HIV, or any venreal disease, for that matter, been wronged, and if so, under what circumstances would the wrong occur?

2) If yes, then what is the remedy for that wrong?

My wife is hotter than your wife.