Liability decision; If you don't know, you should know,

[Pure]

Is the case below correctly decided.

[[ In this case, the judges decided that the man is liable for infecting his wife, because he ought to have known there was a good chance he had AIDS.]]
ADDED CORRECTION: IN this case, the judges decided that the wife may go ahead with her discovery re the husband's sexual past, under certain limitations, BUT stated that the discovery may simply be to establish "constructive knowledge"--that legally he ought to have known-- and asserted that he is to be held negligent if that is established.

The man's ultimate liability was not decided, but this infinitely increases the chances that the wife's suit will succeed.]]


A Sad Story Makes for a New Law

by Andrew Cohen

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 disease. 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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The concept is "constructive knowledge". The law will consider the man to have the knowledge, based, in this case on his having reasons to think he was a possible AIDS infected person. [[Added: The facts are not yet discovered, but the wife is going to be allowed to show that the man did not fulfill his legal duty to protect her, even if he had no actual knowledge.]]

He may not actually have it, but he will be treated, in the eyes of the law, as having it.

For an analogy, consider that 'reckless' does not just involve doing something you know will endanger others. If you don't bother to read signs warning of school grounds and asking you to reduce speed, you *are considered to have been informed* about the school.

You ought to have seen and read the signs, so you will be considered to have seen them. Your 'recklessness' is based on what you ought reasonably to have known (had you been paying attention). You did not *actually* know there was a school.

 

[Huckleman2000]

In today's world of potentially lethal unprotected sex, I shudder to say this was probably properly decided. I'm no expert on what reasonable expectations are between married partners, but surely that one party would be at least suit up before having risky sex outside the marriage. (Maybe Im making some assumptions, but "sex with men" doesn't sound like an affair, it sounds like randomness)

 

[angela146]

There are probably some issues about when he took the HIV test and whether he had unprotected sex with someone else after the test and did he get a repeat or confirmation test after some reasonable amount of time.

However, putting all of that aside for the moment, if you have had unprotected sex with anyone (man or woman isn't the issue) and fail to disclose that to your partner, you ought to be on the hook for civil damages if you end up infecting him/her.

It falls in the same category as "I didn't know the gun was loaded."

All guns are always loaded all of the time.

 

[Selena_Kitt]

There are probably some issues about when he took the HIV test and whether he had unprotected sex with someone else after the test and did he get a repeat or confirmation test after some reasonable amount of time.

However, putting all of that aside for the moment, if you have had unprotected sex with anyone (man or woman isn't the issue) and fail to disclose that to your partner, you ought to be on the hook for civil damages if you end up infecting him/her.

It falls in the same category as "I didn't know the gun was loaded."

All guns are always loaded all of the time.

Yep, my feelings exactly.

 

[Guest]

While it is possible to be completely unaware of the whole "safe sex" concept, somehow I don't think that is the issue in this case. That the man was tested for AIDS indicates he had at least some suspicion that it existed, that he was at risk for a sexually transmitted disease, and that there was such a thing as safe sex practices. His behavior gave him a reason to suspect he risked exposure to the disease and could potentially contract and spread it.

It is possible -- in fact, I think it is abundantly evident -- that people can deny even the most obvious signs about the negative results of their choices. The man in this case appears to have willfully denied his risks and the risks to which he exposed others in his search for sexual pleasure.

While I'm not entirely sure about the issue of whether the courts are the proper venue for this particular precident to become law -- that is somewhat beyond me -- and I'm not sure what ultimate good will result from this man being convicted (is this case about money?), I can't say I disagree with the conclusions the court has stated.

I do think it is shamefully sad that it is fear of legal repercussions that will cause some people to change their high risk sexual behavior, and not respect for their own lives and heath and the lives and health of others.

 

[English Lady]

There are probably some issues about when he took the HIV test and whether he had unprotected sex with someone else after the test and did he get a repeat or confirmation test after some reasonable amount of time.

However, putting all of that aside for the moment, if you have had unprotected sex with anyone (man or woman isn't the issue) and fail to disclose that to your partner, you ought to be on the hook for civil damages if you end up infecting him/her.

It falls in the same category as "I didn't know the gun was loaded."

All guns are always loaded all of the time.

Yep, I think I agree *nods*

 

[R. Richard]

An adult's life choices are that adult's life choices. However, he/she does not have the right to inflict those life choices or the result of those life choices on others without their knowledge and consent.

In a completely different case, a woman named Mary was a cook for a fancy NYC family. The health people traced an outbreak of typhus to Mary, who was a carrier. Mary had typhus, but no symptoms and she herself did not suffer from having the disease.

The health people then confined Mary to an island in NYC harbor for the rest of her life. Mary was not too bright and she was very bitter about her confinement. She pointed out to people, "I don't have typhus, look at me!" In this case, it was decided that the public had a right to safety, even though Mary didn't think she had typhus.

 

[Pure]

rr, it's to be noted that Mary did not know, nor have any reason she should have known, that she was a carrier. (her name was not a household term, at that time)

 

[impressive]

... if you have had unprotected sex with anyone (man or woman isn't the issue) and fail to disclose that to your partner, you ought to be on the hook for civil damages if you end up infecting him/her.

Agree 100%

 

[FallingToFly]

Yes, I am the lone no-vote. ^.^ However- let me explain something about why I said no.

I think both the husband and wife are at fault here. Regardless of how much I may trust whomever I'm with, or not, I go once a year and get tested, because, yes, I know where I've been but I don't know where they may have gone. I've had people assume I must be some sort of slut, married woman still getting tested every year for STDs, but guess what? My health is MY responsibility, not anyone else's. My husband has to get one at least once a year as well, not because I don't love him or rust him, but because I don't spend every second of his life with him, and if he chooses to have a roll in the hay with someone else, I wouldn't know if he chose not to tell me.

One does not "persuade" a spouse to have unprotected sex- they're your partner for life, right? Most married couples don't use condoms. The way they have this set up article wise, they're turning him into a nefarious villian who did this evil thing with knowledge and intent. And again, the only focus is on his sexual history- because he had sex with men. What about the football team she could have been banging behind his back? Or that pretty little pool boy? Or the nice housewife next door?

There is no reliable way to know who gave it to who- the HIV virus interacts differently in every body- some people it takes over like wildfire and kills them inside of five years- some live with few and respectively mild symptoms a full, healthy life.

Now, if they could PROVE that he KNOWINGLY had sex with her AFTER he knew he was infected, I'd think he should be criminally prosecuted for premeditated murder. Until that time- this is a tragedy, not a reason for litigation, and I think it has no place in the courts.

So, there. The reason behind my No.

 

[gauchecritic]

However much he 'persuaded' his wife, she still gave consent and from what little evidence there is it looks like she had about as much prior knowledge about his possible health as he did.

If this fails is she going to sue him for rape instead? She may have consented to protected sex but technically said 'no' to unprotected.

 

[Pure]

GC: //she had about as much prior knowledge about his possible health as he did//

maybe i'm wrong, but my impression was that she didn't know he was fucking men on the side (either before or after the marriage).

 

[Pure]

falling,

thanks for explaining....was going to ask you to

 

[Guest]

I also suspect -- at least from the article -- that the "sex on the side" was an unknown to the wife, and thus an unknown factor in her husband's health. He was taking a risk that in turn put her at risk. For that, I think he is culpable. She worked from the information at hand which might well be that the relationship was monogamous.

If the relationship was understood to be monogamous by the wife, she might reasonably expect to have a low risk of a sexually transmitted disease. If the husband was giving her false information about the state of their relationship, then he was LYING. His lie exposed her to a risk about which she had no knowledge. She made a decision based on her knowledge.

If the issue was not AIDS but syphillis or herpes, I'd feel the same.

 

[gauchecritic]

GC: //she had about as much prior knowledge about his possible health as he did//

maybe i'm wrong, but my impression was that she didn't know he was fucking men on the side (either before or after the marriage).

Which is why I'm confused as to why they are having protected sex in a marriage? Notwithstanding prevention, being as how she agreed to the unprotected sex.

 

[Weird Harold]

Is the case below correctly decided.

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 key point for me to say no, is that the husband had every reason to believe he had avoided the consequences of his extra-maritial unsafe sex.

Yes, the husband should have disclosed his extra-marital activities, but he did have a negative HIV test to give him a logical reason for believing that he was clean and therefore nothing to warn her about.

 

[SweetPrettyAss]

I voted yes but with reservations. We don't know enough about either person to know who was at fault. What does it mean to say that he had sex with men? If he got a blow job from a man two years before his wedding and another from a different man a year after the wedding, but no other time, and was tested negative for AIDS three years later, he was probably not responsible.

We know nothing about her. She could have been fucking half the women in town and all the men. She could have been shooting dope with fellow lowlifes in alleys and shared needles. She might be a health worker who handles used needles all day. She could easily been the one responsible but we don't know.

I voted what I did because I assume that if she was doing the dangerous things I mentioned she would not have brought the case in the first place. Like I said, there is not enough information to say, unless we read between the lines.

 

[Weird Harold]

Which is why I'm confused as to why they are having protected sex in a marriage? Notwithstanding prevention, being as how she agreed to the unprotected sex.

I suspect that the sex in question was anal, so the news story and courts are just talking around the issue, to avoid offending tender sensibilities -- bad enough that the whole case is about his hiding his bi-sexual adventures.

 

[SweetPrettyAss]

Which is why I'm confused as to why they are having protected sex in a marriage? Notwithstanding prevention, being as how she agreed to the unprotected sex.

Maybe she doesn't want to get pregnant.

 

[3113]

The health people then confined Mary to an island in NYC harbor for the rest of her life. Mary was not too bright and she was very bitter about her confinement. She pointed out to people, "I don't have typhus, look at me!" In this case, it was decided that the public had a right to safety, even though Mary didn't think she had typhus.

Actually, the full story is even more analogous to this one:

Mary was found to be a carrier and confined to the Island. But her story got out and people felt she'd been treated unfairly. Heath workers at that time had a great deal of bigotry and Mary was a poor Irish girl, so it appeared as if they'd come down on her out of hatred rather than reason. Also, they'd more or less tracked her down and hauled her off kicking and screaming. This was, afterall, before most folk understood anything about diseases and it really seemed as if Mary had been abused. Especially as she was more-or-less in solitary confinement on the island.

Her story caused quite a stir and didn't make city officials look too good. With the help of a lawyer, she was released on the promise that she would never work as a cook again. THAT was how she was spreading the disease afterall, by handling food, in particular, uncooked food, like fruit.

She swore she would't work as a cook, but the suspicious health officals kept an eye on her to make sure. Then they lost sight of her. A few years down the line, there was an outbreak of typhoid fever in...I believe it was a hospital. Guess who was a cook in the kitchen?

This time Mary had no defense and got no sympathy. This time she *knew* and her actions were considered willful and irresponsible. She was hauled off to a different island which had on it, I believe, some sort of hospital or sanatorium where she worked and lived out her life.

 

[Boxlicker101]

An adult's life choices are that adult's life choices. However, he/she does not have the right to inflict those life choices or the result of those life choices on others without their knowledge and consent.

In a completely different case, a woman named Mary was a cook for a fancy NYC family. The health people traced an outbreak of typhus to Mary, who was a carrier. Mary had typhus, but no symptoms and she herself did not suffer from having the disease.

The health people then confined Mary to an island in NYC harbor for the rest of her life. Mary was not too bright and she was very bitter about her confinement. She pointed out to people, "I don't have typhus, look at me!" In this case, it was decided that the public had a right to safety, even though Mary didn't think she had typhus.

Actually, it was Typhoid Fever, which is spread through unsafe handling of food and water. Typhus is a totally different illness and is carried by insect bites.

 

[FallingToFly]

Actually, it was Typhoid Fever, which is spread through unsafe handling of food and water. Typhus is a totally different illness and is carried by insect bites.

Thank you Box.

I was afraid to point that out in case I got lynched.

Random: Typhoid Mary was Daredevil's perfect match.

 

[Pure]

More of the facts.

I haven't found the decision itself, but the "Gay City News" ran this story.


--------------------------------------------------------------------------------
http://www.gaycitynews.com/gcn_528/aidsexceptionalism.html

Gay City News

Volume 5, Number 28 | July 13 - 19, 2006


LEGAL


AIDS Exceptionalism Rejected


California Supreme Court finds those with “reason to know” have liability

BY ARTHUR S. LEONARD


In a hotly-argued 4-3 decision, the California Supreme Court ruled on July 3 that a wife could sue her husband for negligent transmission of HIV based on the theory that he had a duty to disclose the possibility that he might be infected because he was having sex with men on the side—even if he believed he was not infected.


At the same time, however, the court narrowed the scope of pretrial discovery requested by his wife.


The decision in John B. v. Superior Court arose from a strange set of facts. The couple, identified in the court’s opinion only as John and Bridget were married in July 2000. According to Bridget, John told her that he was a monogamous healthy man, and he insisted on having unprotected sex with her.


In August 2000, John applied for life insurance and was tested for HIV, and the test came back negative. Just a few months later, however, Bridget experienced symptoms that led her to get tested, and she was found HIV-positive. When John went to be tested, he also tested positive. So, if his life insurance test was accurate, he was probably infected no earlier than six months prior to receiving the August negative result.


Bridget claimed to have received a phone call from somebody at John’s doctor’s office earlier in 2000, telling her that he had tested positive for HIV, the basis for her claim that he knew he was HIV-positive when they had unprotected sex. Also, John later confessed to Bridget that he had been having sex with men for years and continued to do so after their wedding. But John maintained that he first learned he was HIV-positive after Bridget’s HIV test.


Bridget accused John of infliction of emotional distress and wrongful transmission of the virus. Part of Bridget’s complaint alleged that John was negligent in not disclosing the risks of HIV exposure arising from his sexual encounters with men, and that his duty to make such a disclosure arose because he either knew or had reason to know that he was HIV-positive.


Bridget’s pretrial evidence discovery requests sought a wide range of information about John’s sexual experiences, medical records, and “lifestyle,” including the timing, identity, and current contact information of all his male sexual partners going back ten years. John resisted virtually all these requests, and the trial court found that the scope of Bridget’s claim unnecessarily invaded the privacy of John’s sexual partners. Discovery was cut back to those times when John had unprotected sex with men, without requiring him to identify them. The judge enforced Bridget’s other discovery requests, which included inquiries into John’s knowledge of the HIV or AIDS status of his sexual partners.


John countered with an action against the Superior Court, contesting the lawfulness of the discovery request, claiming privilege and privacy under California’s HIV confidentiality laws and its constitutional guarentees. The Court of Appeal disagreed with him, reaffirming the trial court’s order, and John appealed to the Supreme Court.


The majority of the court, in a decision by Chief Justice George Baxter, enforced the discovery requests even while cutting back their scope to the six months prior to the negative insurance company test result, the period during which John presumably was infected. The court also addressed a question of new California law it felt needed to be resolved—whether Bridget could sue John for negligence based on the theory he had reason to know he might be HIV-positive, and thus had duty to disclose this to Bridget.


Every state high court that has considered this issue has adopted some version of a “knew or had reason to know” standard and a majority of the California Supreme Court saw no reason to depart from this approach.


This provoked a scathing dissent from Justice Carlos R. Moreno, who charged the court failed to adequately consider the policy consequences of its ruling. Relying on the state’s HIV confidentiality law that he said encouraged people to get tested, Moreno argued that HIV should not be treated as if it were just another sexually transmitted disease. He pointed to the decisions from other jurisdictions to bolster the argument and said legislative intent and state constitutional privacy principles backed his thinking.


Baxter responded that failing to impose liability in this situation could promote deliberate ignorance—people avoiding testing in order to be able to escape responsibility. He also argued that once John responded to Bridget’s suit claiming she infected him, he brought his own sexual history into the case.


Judge Kathryn Mickle Werdegar, in a separate dissent, expressed alarm that the majority’s opinion could lead to anybody who was infected with HIV filing lawsuits against all their known past sexual partners and then conducting intrusive and wide-ranging discovery.


Since John’s constitutional privacy claims also invoked the federal Constitution unsuccessfully, he could theoretically seek further review from the U.S. Supreme Court, but it is unlikely that court would get involved at this point, especially because the California majority decided to follow the same approach taken in other jurisdictions.

 

[Boxlicker101]

I voted "Yes with reservations" because I believe he had an absolute obligation to tell Bridget that he was bi. Failure to do so would probably be grounds for annulment. Even so, I'm not sure that he was liable at all. Assuming the test by the insurance co. was accurate, that leaves a very small window in which he might have contracted HIV.

Nothing was said about the possibity that she might have been the one to contract the disease. There are other ways than sexual intercourse, you know.

 

[Guest]

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