California court says people with HIV can be sued for passing virus, even if untested

Keith Alcorn
Published: 05 July 2006

The California state supreme court has ruled that people can be sued for transmitting HIV to a sexual partner - even if they don’t know their HIV status. Ruling in a case where lawyers had demanded that a man disclose his previous sexual history in order to prove whether or not he had infected his wife with HIV, California judges yesterday decided that the defendant should have been aware that he was at risk of having caught HIV.

The case was brought as a result of a lawsuit initiated by Bridget B, who married John B in 2000. She is suing her former husband to compensate for emotional distress and fraud following her discovery that she was HIV-positive in October 2000, four months after she married John B.

John B’s lawyers claim that he was still HIV-negative six weeks before his wife tested HIV-positive, and that he was infected by his wife. Bridget B’s lawyers say that when John B was confronted about his HIV status, one year after Bridget B had been diagnosed with HIV, he admitted that he had sex with men before their marriage.

California’s supreme court was asked to decide whether an individual who has reason to know that they might be HIV-positive (so-called `constructive knowledge`) should be required to reveal their previous sexual history in a lawsuit. It was not asked specifically to determine whether unwitting HIV transmission could be grounds for liability in a civil case, nor to determine whether unwitting HIV transmission is a criminal offence (only the Califonia legislature has the power to make that decision).

The decision was criticised in a minority report by two members of the state supreme court, one of whom said that the judgement contradicted state policy, but in the majority opnion Judge Marvin R. Baxter argued that allowing lawsuits based on constructive knowledge – when it is reasonably foreseen by a reasonably intelligent actor that their actions could lead to harm – created the right incentives for HIV testing. Otherwise, he concluded, people might avoid being tested so as to make sure they could not be sued by their partners.

Justice Carlos Moreno, dissenting from the majority opinion, predicted that the ruling would lead to “a spate of vengeance lawsuits brought by plaintiffs whose motivation is not so much to discover how they contracted HIV as to force lucrative settlements or embarrass a former sexual partner.”

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