Dolan: Sheen case prompts disclosure questions

Actor Charlie Sheen appears during an interview, Tuesday, Nov. 17, 2015 on NBC's "Today" in New York. (Peter Kramer/NBC via AP)

This week’s question comes from Jerry K. of the Castro, who asks:

Q: Since the Charlie Sheen case broke, the issue of legal responsibility for transmitting a STD like HIV has been on my mind. My former partner gave me herpes. I asked him his status, and he said he was “negative and clean” so we stopped using condoms. He never told me, and when I found out and confronted him he said he thought he was no longer capable of transmitting the disease because he would take medicine when he felt an outbreak coming on. My doctor says this is B.S. and that the medicine only shortens the length of the outbreak and does not reduce transmission risk. We broke up when I found out a year ago. I’m really pissed now that I am infected for life and I tell anyone with whom I am intimate so they never wind up in the same situation. What is the law on this? Do I have a case? He works for one of the big tech companies and has lots of valuable stock.”

A: Jerry, California law has evolved considerably on this subject. As late as 1980, the courts were loath to in weigh in on matters involving sexual relationships between consenting adults, claiming it would be an improper intrusion into their private lives. In the case of Stephen K. v. Roni L. (1980), a case involving a man suing his female partner who lied about taking birth control leading to a child that he was financially responsible for, the court held: “[We] conclude that as a matter of public policy the practice of birth control, if any, engaged in by two partners in a consensual sexual relationship is best left to the individuals involved, free from any governmental interference. As to Stephen’s claim that he was tricked into fathering a child he did not want, no good reason appears why he himself could not have taken any precautionary measures.”

In 1990, in the case of Doe v. Roe (the names are changed in these cases to protect the litigants privacy) a court, for the first time, found liability for transmission of herpes. The Appellate Court, citing an out of state case held: “A reasonable person should know that if he/she has a contagious, sexually transmissible disease like genital herpes, the disease is likely to be communicated through sexual contact. Thus people suffering from genital herpes generally have a duty either to avoid sexual contact with uninfected persons or, at least to warn potential sex partners that they have herpes before sexual contact occurs.” The court held that: “conclusion is not altered by the fact that defendant did not have an active outbreak of the disease during the relationship.”

In, 2006, in the Case of John B. v. Superior Court, the California Supreme Court, for the first time, dealt the issue of HIV transmission between two consenting adults holding: “Accordingly, our conclusion that a claim of negligent transmission of HIV lies against those who know or at least have reason to know of the disease.” The court, however, limited its ruling saying that it applied in the context of a case involving a couple who were engaged and subsequently married; a defendant who falsely represented himself as monogamous and disease-free and insisted the couple stop using condoms; and a plaintiff who agreed to stop using condoms in reliance on those false representations.” The court specifically accepted nonmonogamous relationships form its holding stating it did not contemplate “the existence or scope of a duty for persons whose relationship does not extend beyond the sexual encounter itself, whose relationship does not contemplate sexual exclusivity, who have not represented themselves as disease-free, or who have not insisted on having sex without condoms.” In essence one night stands were not covered. If the law had remained as set forth in 2006, under your set of facts, you would be covered.

By 2011, in the case of Behr v. Redmond, which referenced Doe v. Roe, the Appellate Courts had moved away from the marital monogamy stance of John B., noting that: “People who know or should know they have genital herpes generally have a duty to avoid sexual contact with unaffected persons or to warn potential partners before sexual contact occurs. Because herpes can be spread at times when there is no active outbreak, this duty exists even if the infected person limits sexual contact to times when the disease is asymptomatic. Although the risk of transmission of herpes during asymptomatic periods is low, it is nevertheless sufficient to support the existence of a duty of care toward prospective sexual partners in light of the strong public policy of preventing venereal disease and the small burden of warning prospective sex partners.”

The court held that the following causes of action could be brought against the defendant: “Depending upon the facts giving rise to the transmission of the disease, available tort theories may include negligence, battery, intentional infliction of emotional distress, and fraud. California Jury Instructions (CACI 1623) sets forth the elements for a cause of action to recover damages for emotional distress where there is no physical injury but a fear of developing cancer.

So, Jerry, in your case, as in the Sheen case, there is ample authority for a lawsuit to be brought with or without transmission of the disease. You have a two-year statute of limitations so don’t wait.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to DolanHIVlawlegalSan Francisco

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