A governing legal principle in our society is that we have a duty to avoid causing an unreasonable risk of harm to others. In plain English this means “don’t do something which you know will hurt someone.” In most states this duty extends to sexual partners. A partner who knows or should have known that they are infected with a sexually transmitted infection is increasingly being held liable for transmitting the infection to an unknowing partner. This includes herpes, AIDS, gonorrhea, syphilis, genital warts and crabs.

Prevalence of STIs/HIV

In the latest figures from the federal Centers for Disease Control, over 1.1 million people in the US are HIV positive and over 19 million people in the US per year are infected with a sexually transmitted infection (STI). Because HIV and STIs are mainly spread through sexual activity, new infections are generally preventable through personal choices. Because of this, many states have passed laws requiring persons who are HIV positive or have an STI to either refrain from sex or to inform their partners prior to sexual activity.

Intentional Transmission

Some states require the plaintiff prove that the defendant intentionally exposed them to the infection in order for liability to attach. In these states the plaintiff usually must show that the defendant knew or should have known they were positive and did not inform the plaintiff before having sex. Proving that the defendant knew they had an STI may be shown by a positive test, medical history regarding symptoms, or a current outbreak of symptoms. Usage of a condom may be a determining factor in these cases regarding whether someone should be held liable.

Negligent Transmission

Some states only require a showing that the defendant was negligent in transmitting an STI, whether they intentionally exposed their partner to it or not. Rather, the plaintiff may only have to prove that the defendant is HIV positive or has an STI and engaged in activities that enhanced the likelihood they would transmit the infection, such as promiscuous sex or drug use.

Consensual Sex … Bar Liability?

Some have argued that by engaging in consensual sex, the plaintiff may have assumed the risk of contracting an STI, or should otherwise be barred from suing their partner for acquiring the STI. However, some courts have also held that sex can not be deemed consensual sex when one person has an STI and doesn’t inform their partner of their status because the plaintiff would never have had sexual contact with the defendant if the plaintiff had known of the defendant’s condition.

Personal Injury

The court cases regarding liability for transmitting an STI are not limited to sexual activity. In a case involving a wrestler who had herpes sores on his skin the New York Court of Appeals ruled that persons infected with herpes must avoid skin to skin contact with anyone, not just sexual partners, when they have an outbreak.

Though most states allow a person who contracted an STI to bring a court action against the responsible party, there is no nationwide rule about sexually transmitted infections. Many states have criminal statutes specifically covering the negligent or intentional transmission of HIV, but only a few states have statutes specifically listing STIs. Thus, a lawsuit brought because of herpes, chlamydia, syphilis or gonorrhea is typically brought as a personal injury action.

Damages are available in most states but these cases may be hard to prove. A case involving a sexually transmitted infection is not as simplified as a car accident or if A punches B. In those circumstances the parties know when and where the injury occurred and who caused it. In sexually transmitted infection cases, symptoms may not show up immediately, sometimes even years, and if there have been multiple sexual partners, for either party, proving who was responsible can be difficult.