From time to time, questions of honesty arise in unusual circumstances. A recent case in Oregon discusses the potential for civil liability for withholding whether a person is carrying a sexually transmitted infection from one’s partner.
A man and a woman had sex. The man did not disclose that he was infected with herpes simplex, and, despite an agreement to use a condom, he unexpectedly did not. Unfortunately, although the man’s infection was in a dormant state at the time of the encounter, the woman was infected. She sued the man for battery and negligence. A jury ruled for the woman on both arguments, and awarded $900,000 for emotional distress. Because, however, the jury found the woman 25 percent at fault, her award on the negligence claim was reduced under Oregon’s comparative fault law. The judgment on the negligence claim was $225,000 less than the judgment on the battery claim.
Hoping to save some money after losing his dignity, the man appealed the battery ruling, arguing that to prove battery, the woman had to prove that he intended to transmit the infection. The Court of Appeals disagreed.
In Oregon, like most states, civil battery requires an intentional contact between the defendant and the plaintiff. That contact must be either harmful or offensive. In other word, assault and battery are not only about preventing physical harm. They are about protecting personal autonomy and bodily integrity.
The man was aware of his infection and had used condoms in previous relationships. Both of the parties were medical professionals (a retired dentist and a dental professional). The woman had specifically asked the man to us a condom and he agreed to do so. Regardless of whether the man intended to infect the woman, the court ruled that his conduct was potentially offensive and therefore the jury was entitled to rule on the question.
Although this case had no exact precedent in Oregon, the court noted that every other case in other jurisdictions involving failure to disclose sexually transmitted infections before unprotected sex of which it was aware could be battery. The court probably could have ruled as it did without going into the professional history of the parties, and, if a similar case comes up, it probably will.
The best lesson for the public is to be honest with one’s partners. Do not hide a known infection. Sometimes, as in an active case of herpes, even using a condom will not be enough to reduce the risk of infection. Consult your doctor about when and how to avoid transmission. And if you do transmit an infection or are infected, should you want to pursue a claim, be ready to discuss the details of the encounter with a lawyer and possibly in court.