In California, if you contract herpes from another person and can prove that person was the source of your infection, you can sue them. The legal basis for your lawsuit will depend on the specific details of your situation, such as whether the other person was, or should have been, aware of their infected status, whether the encounter was consensual, and whether you actually did contract an infection as a result, as opposed to a mere suspicion or concern.
Infection Following a Consensual Encounter
If you contracted herpes due to a consensual sexual encounter, you may choose to sue the other party for negligence. A 1990 case, Doe v. Roe, established what you must prove to establish the other person was negligent:
- The other person had herpes
- They did not inform you that they had herpes
- They did not engage in protective measures to prevent transmission
- A reasonable person could anticipate the harm (e.g., infecting another person.
That someone was unaware they were infected or contagious is not a defense. If they were reasonably sure they had herpes, or suspected they might have an infection, an individual could be liable.
As the court said in the Doe v. Roe case, “[It] is beyond question that our state's policy of preventing the spread of venereal disease is great and that the burden of warning a prospective sex partner is small.”
The general confidentiality protections of a person's medical history do not apply in cases involving sexually transmitted diseases. The public interest in minimizing the spread of a contagious disease is greater than a person's right to privacy regarding their medical history.
In other words, informing a potential sexual partner of the risk involves little effort on the part of an infected individual, especially when weighed against the possible harm to other people. That an individual is unaware of symptoms or the potential for asymptomatic transmission is not a defense.
In addition to civil liability, negligently infecting another person with herpes could result in a misdemeanor charge.
Infection Following a Nonconsensual Encounter
When a herpes infection occurs due to a nonconsensual sexual encounter, you may sue for civil battery, and get punitive damages in addition to compensatory ones. In addition to civil charges, a prosecutor may decide to file criminal charges depending upon the details of the encounter. However, criminal charges are not a requirement before filing a civil suit.
To prove civil battery, you must show that:
- The other person intended to harm you,
- You did not consent to the conduct,
- You were harmed.
A 1985 California case stated that civil battery requires only the “least touching.” This means that battery does not have to result in serious injury to the plaintiff for the defendant to be found guilty.
Relationship Between Parties
The relationship between the two parties is irrelevant for either a negligence or civil battery claim. A person may be found guilty of infecting their spouse in a nonconsensual encounter. A consensual one-night stand may result in a lawsuit based on negligence. Being married or in a long-term relationship is not a defense against infecting a spouse or partner.
If the defendant is found guilty of either negligence or civil battery, they will generally be personally liable, which means they have to pay for any damages awarded from their own funds.
If an encounter that resulted in a herpes infection occurred in a person's home or residence, however, you may be able to file a claim against their homeowner's insurance. This possibility depends on the specific policy and whether you can prove the encounter occurred in the defendant's home. Establishing the location where the infection occurred will often be more difficult than proving who caused the infection, especially if a couple engaged in sexual encounters in multiple locations in a short period. Furthermore, insurance will generally not cover intentional torts, so if the lawsuit includes allegation of assault and battery, the carrier may deny coverage.
What You Can Recover
Civil law requires that you suffer harm or injury due to a defendant's actions. In the case of herpes, the harm is a herpes infection due to the defendant's failure to warn or protect you properly.
In general, you may file a claim for any losses you suffered as a result of contracting herpes. This may include medical expenses (as well as estimated future expenses), lost wages, and damage to your reputation.
Herpes, for example, does not currently have a cure. Once you contract the disease, you will have to receive treatment for the rest of your life, which may affect your ability to establish future relationships, and even impact your future children.
Contracting herpes is a life-altering event. If you can prove your infection stemmed from an encounter with another person, they may be liable for damages. Whether a sexual encounter was consensual or nonconsensual, the other party may be liable for damages.