A Sad Story Makes for a New Law

In an important ruling sure to spark debate around the country, the California Supreme Court ruled Monday that a husband may be held civilly liable for infecting his wife with HIV even if the man did not actually know that he carried the diseased. It was enough, a bitterly-divided majority held, that the man's sexual history created for him a reasonable "reason to know" that he might both get the disease and then pass it along to his spouse. Here is the link to the Court ruling and here is the link to my column on the topic.

As the Justices described it, the story that generated the lawsuit is horrible. A man convinces his wife to engage in unprotected sex with him. They both become infected with HIV-- later, he gets full-blown AIDS. He accuses her of bringing the disease to the marriage. She then discovers that both before and during the marriage he engaged in sex with men. He points to a negative AIDS test for an insurance application. Now they are fighting over how much pre-trial discovery she is entitled to as she tries to win her civil case against him.

The central question of the case was this: Should the husband be liable only if he had "actual" knowledge of his disease? (In which case he'd probably succeed with his defense in the case). Or should the law presume that he had "constructive" knowledge of his disease based upon his behavior, his sexual history? (In which case he would probably lose his fight). Four of the seven Justices on California's highest court voted to broaden the scope of the law. Two of the Justices declared that this was a terrible mistake-- that the legislature is the proper forum for such policy choices. You will hear a lot more about this case, and this issue, as word gets out about the ruling and as activists all over the country begin chiming in on its effects.

By Andrew Cohen |  July 5, 2006; 10:00 AM ET
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Comments

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I work in the health care field. There are many instances when a HIV positive woman comes into have a baby and the father of the child does not know the woman is HIV positive. If she requests that he not be told, we are not allowed to tell him. Of course, you must comply with her wishes BUT you WANT to tell him....Can you imagine not sharing this info with your partner?????

Posted by: Concerned Nurse | July 5, 2006 02:00 PM

I had unprotected sex with a woman who later told me her status. She had a "devil may care" attitude about it, like it was no big deal. I dodged a bullet that time, but I might have died! It is a good law. I think the penalties for knowingingly infecting a person should be severe, including prison time. This law puts the burden of knowledge on the potential infector, instead of the infectee.

How much good it will do, who knows?

Posted by: Woody | July 6, 2006 10:20 AM

I think the law is good -- it will also promote protected sex within the gay community (i.e., especially among married men who have sex with men). The man in this story who infected his wife had to have had unprotected sex with other men during his marriage, and this is irresponsible. I have no respect for him, even if he did think he was HIV-. An HIV- test is no reason to assume HIV negativity!

Posted by: JT | July 6, 2006 10:27 AM

This is really bizarre. Isn't legal tradition that ignorance of fact is a defense? The CA Supreme Court is making a huge mistake here! This idea that he should have constructive knowledge simply because he had engaged in homosexual sex is what I find truly strange. Since it is common knowledge that it only takes one encounter to obtain HIV, does this mean that any person who engages in one high risk activity has "constructive" knowledge that he or she has HIV?

Posted by: Jurisprudence | July 6, 2006 04:03 PM

Jurisprudence,
You raise an interesting point. I think it is the right decision, California has a long history of innovation in tort procedures. The LA Times has an interesting editorial on the subject that seems to come down with the Court as well.

I read part of the decision, but not dissents nor any of the citations, and basically it seems to be based on an assumption that dangerous behavior is something people should be aware, coupled in this particular case with the husband pushing for unprotected sex.

While the standard in criminal law in California is knowledge and intent, that is he knew he was infected and he intended to infect the other person, the standards in civil cases can be much lower.

Think if you will of a doctor who does not wash his hands between patients or a Pepi on Seinfeld, who did not wash his hands after using the facilities. Even if you do not know for a fact that you have picked up germs, you should realize that the behavior itself and your subsequent activities is dangerous, and therefore places others at risk. If that risk turns to injury then there may be a cause of action.

It wasn't just that the husband engaged in homosexual sex, but a series of unusual facts in this case.
1. The husband claimed to be monogamous. (This is the focus of the discovery -- was he?)
2. The husband aserted that he was free of disease -- had tested HIV negative in the last six months.
3. The husband in fact engaged in gay sex. It is not clear whether he engaged in unprotected sex, but it is likely that he did if he was also wanted to do so with his new wife.

The decision, as I read it, only applies to the discovery process, I am not sure it finds a cause of action. Presumably the cause of action would be some combination of fraud with reckless endangerment, or the other way around.

There are all sorts of realy great issues here including personal privacy and the privacy of marriage. There is another fact that would be interesting to learn: when does HIV become transmissable. The assumption is that the incumbation period is six months, but this seems to mean that after acquiring the virus, it can take up to six months to show up in a blood test. He claims not to have engaged in sex outside the marriage during that period, so are the exceptions to this six month rule?

Posted by: Constutitionalist | July 7, 2006 01:35 PM

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