Genital herpes and compensation: more dollars than sense?

Is mixing genital herpes and compensation a good idea? In other words, should you be able to sue someone for lots of money if they give you herpes?

This section of Genital Herpes Corner looks for an answer.

By way of reminder, tort law is designed to compensate people who are victims of wrongful acts – when a case is proven, the defendant has to pay “damages” to the victim. In some cases (think cancer victims suing tobacco companies), “damages” can be millions or even billions of dollars.

And one more thing before we get started: I’m assuming here that the sexual contact that took place between the ‘perpetrator’ and the ‘victim’ was consensual. I’m also making a couple of assumptions about what the two people involved actually knew:

• one, I’m assuming that the ‘perpetrator’ was aware that he or she had herpes;
• two, I’m assuming that the ‘victim’ was unaware that the perpetrator had herpes.

The case for compensation

In many jurisdictions (California, New York, Texas…), tort law allows people who catch genital herpes to go before the courts to claim damages from the person they believe gave them the disease. Whether or not the ‘victim’ will be able to prove their case and actually get those damages is another matter, but just the fact that a tort action is actually possible suggests that – for the authorities of the jurisdictions concerned – there are Good Reasons in favour of allowing tort law to become involved.

Below I’m going to look at what those good reasons are. But first, just bear with me (pretty please!) while I make a technical point. Here goes.

The guiding principle of tort law is that where someone causes harm to another, he or she should “make good” that harm, either:

• by returning the victim to their original position (e.g. in the case of defamation, by informing people that the defamatory statement was not in fact true), or where that’s not possible…
• by paying them monetary compensation (e.g. in the case of physical assault, by giving the victim enough money to make up for hospital treatment, time off work, and emotional distress).

Now, this guiding principle exists for idealistic and practical reasons:

• the idealistic reason is that society considers it fair that people should be compensated for harm done to them by others;
• the practical reason is that authorities worry that if they don’t allow people to seek compensation for harm they suffer, then they may become frustrated and unhappy (and so be less useful to society) or even take the law into their own hands (and so – just to exaggerate a little – threaten society itself! Aghh!!!! Anarchy!!!!).

So, now that we’ve got that technical stuff out of the way, here are those Good Reasons I was talking about before…

Idealistic Reason: “It’s only fair”

Let’s get all starry-eyed and start from the principle that The World Should Be A Fair Place. If you believe that, then, idealistically speaking, it seems unfair that someone who contracts genital herpes should be denied the opportunity to seek compensation for the harm he or she has suffered.

I mean, even just on a physical level, genital herpes is just as serious as a broken nose or a cut to the body (and let’s not even go into the effects on a psychological level).

Remember Kathleen K v Robert B, the groundbreaking Californian case we looked at in the section Genital Herpes and Tort Law? Kathleen Keating (she went public with her full name) was a Los Angeles nurse who sued a doctor who infected her with herpes, after saying he had no disease. Miss Keating was reported in the New York Times as saying that the purpose of her lawsuit was “principle”. She said: “Someone was dishonest, and it profoundly and destructively affected my life. All I’m asking is that people should be honest with each other.”

One person who seems to agree with all this, and who thinks people who catch herpes should be able to sue for money, is Deana Pollard from Texas Southern University. I hope Ms Pollard won’t mind me quoting this part of her (very good) article, called ‘Sex Torts’ (sounds like a teen movie!):

“When I tell people about lawsuits for transmission of herpes and other sexual diseases, many are surprised, some looked worried, and a few stated: ‘The law should stay out of that’. If the law stays out of it, however, irresponsible people are protected at the expense of innocent or naïve people. For example, one woman I interviewed is a 63 year-old woman who had had only one sexual partner, her husband, until she divorced him at age 50. The very first man she dated was an Alaska Airlines pilot who told her that there was no concern about sexual disease. After 5 months of dating, they slept together, and thereafter he stopped calling her. Three days later, she broke out with a horrible case of genital herpes and, like many victims of herpes, felt disgusted and suicidal. Meanwhile, the pilot had never called again, and when she called him and told him that he had given her a life-long, incurable, painful and debilitating disease, his only response was ‘I never got a call like this before’. He never even apologized and never called again. Although I urged her to sue him, she declined, not wanting to go through the embarrassment of airing her illness in public… This interview is the one that mobilized me to write this article and to argue in favor of strict liability for sexual disease transmission.”

Well, that’s the emotional side of things. Combine it with the idealistic and practical reasons why people should be allowed to sue (see below), and suddenly it seems hard to argue against people being able to claim damages in the courts.

Practical Reason: “It helps people let off steam”

Let’s now get all practical and start from the principle that Unhappy People Cost Money. Because it’s probably true that people who catch genital herpes are at least as likely as other victims of wrongful acts to be vulnerable to feelings of frustration and unhappiness as a result of what has occurred. As a result, if society fails to provide a means of channelling those emotions (i.e. allowing those victims who wish to, to take court action), society could suffer lots of negative effects.

Here’s a few things that could go wrong if people who catch herpes face the added frustration of being told they can’t sue their ‘aggressor’:

• loss of productivity: the victim’s emotions delay his/her return to the workforce (I know some people who’ve taken WEEKS off work after a primary attack),
• healthcare costs: the victim’s emotions require longer drug or psychological treatment (and let’s face it, if you’re ever gonna need Prozac, it’s just after learning you have a life-long contagious disease), or
• court costs: the victim decides to exact unlawful revenge on the perpetrator, and then has to be punished themselves (“avenging Angel” is a phrase that comes to mind).

Wow! All that looks like it would cost society a lot of money. Surely society should just let people sue their ‘aggressor’.

Well, maybe. But let’s take a look at the arguments on the other side!

The case against compensation

In some jurisdictions, tort law does NOT allow those who contract genital herpes to go before the courts to claim damages from the person they believe gave them the disease.

This can range from general bans against actions for physical injury (in the 1970s, New Zealand passed legislation preventing people from launching such lawsuits!) to specific bans on actions for STDs (historically, in Ireland).

These examples suggest that – at least for the authorities of the jurisdictions concerned – there are Good Reasons AGAINST allowing tort law to become involved when someone contracts genital herpes.

What are these reasons?

I’ve found two main ones. One concerns what’s right for society as a whole. The other concerns what’s right for the person who has contracted herpes and is considering a tort action.

For society: the courts are too clogged up as it is

I remember seeing an episode of ‘The Simpsons’ where a lawyer hands Homer a business card with his name and contact details on it, but also a slogan: ‘Clogging the Courts Since 1974’. At least, I think it was 1974.

Anyway, if you’ve ever tried to launch a lawsuit, you’ll know how busy the courts are with folks just like you, trying to hear thousands and thousands of cases. Wouldn’t it be better if those courts had more time to spend on the most important cases?

Genital Herpes and Compensation Note:
I guess I’m assuming here that a case of genital herpes transmission is not one of the ‘most important’ cases a court might have to consider. That’s a big assumption, though, because for some people catching herpes is about the most difficult event of their life.

Well in any case, when the New Zealand government passed the Accident Compensation Act in 1974, this idea of ‘clearing out the courts’ was one of their arguments. The Act prevents people from suing others for ANY physical injury – including infection with genital herpes.

Now, I should point out that the New Zealand government didn’t just leave victims of physical assault without any help at all. Quite the contrary – they introduced, as a replacement for tort lawsuits, a system of automatic financial compensation for any injury.

But there’s no denying that they DID decide that it wasn’t helping society to have people filling the courts with lawsuits for personal injury. And whatever the fairness or otherwise of that decision, it has meant that the New Zealand courts enjoy a lot more time than – say – US judges, to consider those other ‘more important’ cases (whatever they are).

So, when deciding whether or not to allow tort actions for transmission of genital herpes (or any other STD), this practical benefit really does need to be taken into account.

For the person who contracted herpes: tort actions have a downside

Another reason the New Zealand government replaced tort lawsuits with a compensation system, was that they felt that lawsuits just didn’t help people get along, or even help the people who launch them to feel better.

If you read the press, you’ll see that this is a view shared by many who live outside the US. They find the ‘litigation culture’ in North America to be a destructive thing to be avoided at all costs.

After all, let’s look at the facts:

• launching a lawsuit may actually AGGRAVATE THE FEELINGS OF ANGER AND FRUSTRATION that you feel, because you’ll have to fight it out in court with someone who – since their money is now on the line – may fight back dirty. I mean, if they were capable of lying to you about their herpes, maybe they’ll be capable of a few nasty tricks in the court room.
• launching a lawsuit means MAKING YOUR HEALTH A MATTER OF PUBLIC RECORD. Even if you get to have the case named after just your first name (like Kathleen K v Robert B), at the very least the people in the court-room (judge, jury, witnesses, reporters, members of the public) will all see you and hear you describe what happened. Depending on the strategy of the defence team, they may also hear about your entire sexual history before you met the defendant.
• you might not win, and then you’ll be left with A NASTY BILL FROM YOUR LAWYER. Yes sir, this ain’t a criminal prosecution where the government picks up the tab. And the fees are very high. A personal-injury lawyer from Minneapolis, Stewart Perry, was quoted in the New York Times as saying: “When people say, ‘I want to do something,’ I say, ‘You have a case, but do you want to pay for the fees and costs?’ The answer is, ‘I’ll let you know,’ And they never call back.”
• and last of all, launching or even winning a lawsuit against the person who gave you herpes WON’T CURE THE CONDITION. Until medical knowledge improves significantly, you are stuck with the pesky little virus. No judge or jury can change that. As US lawyer Lamont Domingue said in the New York Times: “Even if you are successful, you will never see justice done. Even if you manage to find a deep pocket, money is such a sad, inadequate remedy for a horrible violation of trust.”

So, maybe now’s the time to quote what was written in the section Genital Herpes and Jail?:

“As much as revenge can satiate the intense pain immediately following an aggression, forgiveness can work even greater wonders in the months and years following. And before you dismiss this idea as something only religious groups recommend, take a look at the Truth and Reconciliation Tribunals set up by governments in South Africa and Rwanda.”

Right, that’s it. Armed with all these arguments, have you made a decision? Do you prefer the Californian approach or the New Zealand approach? If you ever decide to create your own country (apparently it’s possible), you’ll need to decide!

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