In California, if you contract herpes from another person and 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 a sexual encounter was consensual.
Simply put, you can sue someone for giving you herpes by bringing a personal injury lawsuit. Suppose the transmission came from nonconsensual sex. In that case, it could be a civil battery claim.
Suppose the infected person lied about having a sexually transmitted disease (STD), or they should have known about the infection but did not use care to avoid transmitting it. In that case, it could be a negligence claim.
Any lawsuit seeks financial compensation to cover the losses associated with the victim's disease, such as medical bills, lost wages, and pain and suffering. In other words, a lawsuit could hold the person who infected you accountable for their actions.
You can still sue someone when the sex is consensual by claiming the person who transmitted herpes was negligent. They could have prevented the transmission of their herpes but failed to do so.
You can hold someone liable for giving you herpes as long as you can prove they had had herpes, did not disclose it to you, did nothing to prevent transmitting it, and could reasonably see the potential harm it could cause.
Further, a sexual partner could be liable even if they do not think they are contagious. They don't even have to know they are infected or carrying herpes.
In other words, if they reasonably should have known that they had herpes, they could be liable for transmitting it. Some know they have herpes but decide to lie about it. Those who know could face criminal liability for willful exposure to an STD. They could face jail time along with getting sued by the victim. Let's review further below.
What If You Were Infected After 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 show 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 and
- 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.”
That a person's medical history is generally a private matter does 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 as defined under California Health and Safety Code 120290 HS. Notably, a spouse can be held liable for infecting their spouse with herpes.
What if You Were Infected after a Nonconsensual Encounter?
When a herpes infection occurs due to a nonconsensual sexual encounter, you may sue for civil battery. In addition to civil charges, a prosecutor may decide to file criminal charges depending on 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, and
- 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.
What About the Relationship Between Parties?
The relationship between the two parties is irrelevant for either negligence or civil battery claim. As noted, 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.
What Compensation Can You Recover?
Suppose the defendant is found guilty of either negligence or civil battery. In that case, they will generally be personally liable, which means they have to pay for any damages awarded from their 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 where the infection occurred will often be more complex than proving who caused the infection, primarily if a couple engaged in sexual encounters in multiple locations in a short period.
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 adequately.
In general, you may file a claim for any losses you suffered due to contracting herpes. This may include the following:
- medical expenses (including estimated future expenses);
- physical pain from the condition;
- emotional distress;
- 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.
Contracting herpes is a life-altering event. If you 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.
Contact us for a free case evaluation. We work on a contingency basis, meaning you don't pay any fees unless we win your case. The Injury Justice Law Firm has offices in Los Angeles, California.
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