Genital herpes and tort law are not two terms I often used to use together. That is, until I met and fell in love with my forner partner.
Before we met, she had caught genital herpes from a man who hadn’t told her of his condition. She seemed to have accepted the situation, but I was new to this and – dang it – all I wanted to do was sue the man to high heaven.
Although I eventually calmed down, and never took matters to court (it wasn’t really MY decision anyway, was it?), I found out a few things about how genital herpes and tort law mix.
Below you can see the results of my research, and here’s how I’ve structured it:
1. It’s all about ‘assumption of risk’
2. ‘Assumption of risk’, genital herpes, and you
3. What the courts used to say
4. What the courts are saying now
5. Actual lawsuits for transmitting genital herpes
6. The problem of proof
7. A special note for Kiwis
By the way, I really recommend you read the section ‘Genital Herpes and Criminal Law’ before you carry on with this section. Already have? Great! Carry on, soldier!
Genital Herpes and Tort Law: It’s all about ‘assumption of risk’
In the section ‘Genital Herpes and Criminal Law’, we saw that criminal lawyers prosecute people who transmit genital herpes by using the charge of “assault”. An assault is when you deliberately do something to someone (for example, touch them, or have sex with them…) without their (full and informed) consent.
Now it so happens that tort lawyers have an identical weapon up their sleeve. They can sue people who transmit genital herpes by using an action called “battery”. Battery is just the tort lawyer’s word for assault. It means deliberately doing something to someone (for example, touching them, or having sex with them…) without their (full and informed) consent.
Genital Herpes and Tort Law Note:
Two different words for the same thing? Those lawyers are complicated people. But you have probably picked up on the habit of using these two words for a single act, yourself. When talking about someone hurting someone else, did you ever say the phrase “assault and battery”? (If you’re a lawyer, you’ll know that this example is not strictly speaking correct, but it does illustrate my point.)
Anyway, if – as we saw in the other section – criminal lawyers have begun using “assault” charges as a way of prosecuting people who transmit genital herpes, then surely tort lawyers should be using “battery” actions as the basis for suing those same people. In other words, surely tort lawyers should be trying to prove that the defendant “battered” the victim, and that the victim “did not consent” to that battery?
But here’s the thing. These days, they aren’t – not very often, anyway.
While criminal lawyers LOVE to use “assault” charges to “get their man”, tort lawyers aren’t so keen on using “battery” actions to “get theirs”.
Don’t get me wrong – tort lawyers ARE suing people for transmitting genital herpes. It’s just they are not using the “assault/battery/consent” approach that criminal lawyers use (and that we looked at in the section ‘Genital Herpes and Criminal Law’). Instead, tort lawyers have a “secret weapon” – it’s called the “negligence” approach.
Genital Herpes and Tort Law Note:
Why the difference of approach? It’s simple really: tort lawyers find it easier to win their case, and easier to get the defendant’s insurance company to pay up the damages, using a “negligence” action than using a “battery” action. Poor old criminal lawyers, unfortunately, don’t have a choice – they have no real equivalent to a tort lawyer’s “negligence” action and are stuck with trying to prove “assault”.
“Negligence” means accidentally causing harm to someone (for example, standing on their toe and bruising it, or accidentally giving them HSV…). Tort lawyers LOVE launching negligence lawsuits! Especially when suing someone for transmitting genital herpes. They might throw a “battery” allegation in to their pleadings as well, “just in case”, but the main thrust of their argument will be an allegation of negligence. We’ll look at their efforts below.
And here’s how it differs from assault/battery…
Remember how in assault/battery cases, the victim and the defendant mostly argued about whether the victim “consented” to having sex with a herpes-infected person? Well, in a negligence case, the victim and the defendant will instead tend to argue about whether the victim “assumed the risk” of catching herpes.
You may not see much of a difference between the two arguments just yet, but lawyers do and – as you’ll see below – they get very excited about it!
In the meantime, just try to remember: whereas in an “assault” or “battery” case the issue is “all about consent”, in a “negligence” case the issue is something else. In a negligence case, the issue is “all about assumption of risk”.
Genital Herpes and Tort Law: ‘Assumption of risk’, genital herpes, and you
What do we mean by “assumption of risk”? Well, let’s take an example.
When you take part in a game of football, it is quite obvious to you that there is a risk – a small risk, but a real one – that you might get hurt. You might twist an ankle, you might get a knock to the head, whatever. And this is why, if you DO indeed get hurt, the courts will not usually let you sue the person who did it. That person might have been negligent, but the courts figure that you “assumed the risk” of getting hurt when you decided to take part in the game.
Now – over the years – the tort courts have come up with a long list of situations where a person can be said to have “assumed the risk” of getting hurt. The question we now face is: is having sex one of these situations? In other words, does someone who takes part in a bout of sexual intercourse “assume the risk” of getting hurt? More specifically, do they “assume the risk” of catching genital herpes?
Well, would you believe it? Just like their criminal counterparts who had to consider “consent”, the tort courts haven’t always given the same answer to this question of “assumption of risk”.
We’ll look now at how that answer has changed over the decades…
Genital Herpes and Tort Law: What the courts used to say
Take yourself back in time, around a hundred and fifty years, to the 1850s and 1860s. What was life like then? Well, in Britain it was the time of Florence Nightingale, Charles Darwin and Charles Dickens. In America, it was the time of Uncle Tom’s Cabin, Abraham Lincoln and the Civil War. Two quite different contexts, but linked by at least one common fact: sex was, in both countries at the time, quite a safe activity.
And what decisions were tort judges handing down at this time when it came to the (rare) case of someone complaining about having been infected with a sexually transmitted disease?
Well, they seemed only too happy to oblige. Take the New York case of White v Nellis, from 1865. Mr Nellis had sex with a young virgin, Miss White, and in doing so unfortunately infected her with an unspecified “venereal” disease. Ms White and her mother sued Mr Nellis and the court ordered him to pay Ms White damages.
Genital Herpes and Tort Law Note:
Not having the high-powered attorneys available to us all today, Ms White actually brought her case on the basis of “seduction” and not “negligence”. But still, the case illustrates the fact that the courts were willing to hold defendants accountable for transmitting STDs.
But soon the world would change: the dreaded syphilis epidemic would emerge. The casualties would include poor old Oscar Wilde, Vincent Van Gogh and – some say – even Woodrow Wilson.
For the reasons we went through in ‘Genital Herpes and Criminal Law’, it was probably the emergence of this epidemic that led to a noted change in the way many judges considered lawsuits for the transmission of STDs. Whatever the reason, though, what is clear is that by the late 1870s and early 1880s, the tort courts started to reject claims from people who had been given STDs.
This change of tack began in Britain in the Irish case called Hegarty v Shine, which was decided in 1878. A young female servant had a sexual relationship with her master. It began on the strength of a promise of marriage, lasted a year, and led to the birth a child. By then, Miss Hegarty discovered that she and her baby had contracted syphilis from Mr Shine, and she tried to sue him for damages. The court rejected her request.
Genital Herpes and Tort Law Note:
Like Ms White above, Ms Hegarty didn’t bring her case of the basis of “negligence” – she used the accusation of “battery”, so there was a lot of talk about consent rather than about “assumption of risk”. Lawyers back then simply hadn’t yet learned that negligence was the way to go! But the case illustrates the fact that the courts were no longer willing to hold defendants accountable for transmitting STDs.
British court decisions were very highly regarded in the late 1800s, so it is no surprise that soon the courts in jurisdictions as far afield as Michigan and Washington were following suit.
- In 1898, in a case called Bandfield v Bandfield, a Michigan court rejected a claim by Mrs Bandfield against her husband for transmission of an STD;
- In 1911, in a case called Schultz v Christopher, a Washington court rejected a claim brought by a divorcee against her husband for the same complaint.
Overall, on both sides of the Atlantic, it seemed that the friendly reception STD victims got back in the 1850s and 1860s (remember Ms White?) had been pretty much abandoned! In essence, for the courts, someone who took part in a bout of sexual intercourse “assumed the risk” of catching a venereal disease.
Genital Herpes and Tort Law Note:
To see the double-standards of this approach, you might note that the courts happily found liability for transmission of NON sexually transmitted disease during the same period of history! In 1884, a New York court awarded damages against a person who transmitted whooping cough; in 1896, it was a Wisconsin court awarding damages for transmission of typhoid; in 1906, a New Hampshire court and diphtheria; in 1910 a Missouri court and smallpox… I could go on and on! But you wouldn’t want that, would you! 
Certainly, there were still a few judges trying to “do the right thing”. In a North Carolina case from 1920 called Crowell v Crowell, a judge allowed a wife to claim damages against her husband for having given her gonorrhea. And in a Texas case from 1936 called De Vall v Strunk, a judge allowed a young woman to claim damages against a man who gave her crabs.
But these decisions were a minority, and tort courts continued to reject STD claims right up until the 1970s.
And then came the story of Kathleen and Robert…
Genital Herpes and Tort Law: What the courts are saying now
If you read the pages in the ‘Genital Herpes and the Media’ section of this website, you’ll notice that an article appeared in the 8 June 1987 issue of Time magazine, pointing out that – all of a sudden – lawsuits for transmission of STDs, and in particular genital herpes, had become a lot more common.
Why? Well, the tide had turned in tort law three years earlier, in 1984 (remember 1984? The Terminator came out at the cinema; Rubik’s Cube was all the rage; The Littlest Hobo was on TV…).
Yes, in 1984, at a time when criminal courts were still rejecting prosecutions for STD transmission, the tort courts took a huge step, returning to their original position from the 1850s and 1860s. That’s right – courts started to say that, actually, now that we think about it… having sex does NOT mean someone is “assuming the risk” of catching an STD. Victims CAN get damages from the person who gave it to them.
The 1984 case that started the change was a decision of a California court of appeal, in a case called Kathleen K v Robert B (their surnames were Keating and Bolander). Now, Kathleen had contracted genital herpes from Robert in the course of a passionate affair. She brought case against Robert based in particular on negligence and (bad advice!) battery. The judge at the original trial rejected the claim for damages, just as the judges had done in those cases we looked at just above (Ms Hegarty, Mrs Bandfield, Ms Schultz…).
The court of appeal, however, disagreed with this approach and allowed Kathleen to claim damages. As you can imagine, this was a bit of an earthquake in the legal world! Like a 10 on the Richter scale!
For over a hundred years, tort courts had been rejecting claims for transmission of STDs (while simultaneously allowing claims for transmission of non sexually transmitted diseases!). Now, a major court had said: STOP! ENOUGH! LET’S BE CONSISTENT HERE. And suddenly people could sue for catching herpes and other STDs.
Genital Herpes and Tort Law Note:
How did the Californian court justify this change of approach? It mentioned cases like Crowell v Crowell (the gonorrhea case) and De Vall v Strunk (the crabs case) where a few judges had already tried to “put things right”. It also relied on “public policy considerations” – basically, what society expects these days. Putting these two threads together, it said (in respect of the “battery” part of the case): “The basic premise underlying these old cases – consent to sexual intercourse vitiated by one partner’s fraudulent concealment of the risk of infection with venereal disease – is equally applicable today, whether or not the partners involved are married to each other.”
Now, to be totally frank, the court in Kathleen K v Robert B didn’t really talk MUCH about negligence or assumption of risk, but they did mention it enough for a whole wave of new decisions to emerge, which we’ll look at below. And this new wave of decisions is why, today, it’s “all about assumption of risk”!
Genital Herpes and Tort Law: Actual lawsuits for transmitting genital herpes
Following the decision on Kathleen K v Robert B, lawsuits for transmitting genital herpes suddenly started to succeed.
In 1985, a Georgia court allowed a claim of negligence for the transmission of an STD. The case was called Long v Adams, with Mr Long suing Ms Adams for having given him genital herpes during their two-year relationship.
The judges said: “We conclude that [Mr Long] stated a [valid] cause of action based on negligence… It should be made clear that this court is not stating here that herpes victims have a specific duty to warn any person of their condition; however, they, like all citizens, are to be guided by those considerations which ordinarily regulate the conduct of human affairs, and they may be sued in this state for negligence in the omission to do something which a reasonable person would do… Of course, the question whether or not a person acted negligently must be viewed in light of facts commonly known and within the factual context of each case.”
In 1988, a Minnesota court allowed a husband (only known as R.A.P. – some people like their privacy) to sue his wife (only known as B.J.P.) for negligence, after he contracted genital herpes from her. Actually, by the time of the court case, she was his ex-wife. The woman had known she had the condition but hadn’t warned the man.
The judges said: “A reasonable person should know that if he/she has a contagious, sexually transmittable disease like genital herpes, the disease is likely to be communicated through sexual contact. Thus, people suffering from genital herpes generally have a duty either to avoid sexual contact with uninfected persons or, at least, to warn potential sex partners that they have herpes before sexual contact occurs.”
And in 1989, one Sheryl Berner took a Don Caldwell to court in Alabama, claiming damages. Ms Berner, who had never had a sexual partner until she slept with Mr Caldwell, developed an infection which her physician diagnosed as genital herpes, and tests revealed that her blood contained elevated amounts of the antibody to herpes simplex virus type II.
Ms Berner sued Ms Caldwell for negligence, and of course Mr Caldwell’s defence was that – by sleeping with him – Ms Berner had “assumed the risk” of contracting an STD. The judge at the original trial rejected Ms Berner’s claim, agreeing with Mr Caldwell.
The Alabama court of appeal reversed the trial judge’s decision. The court declared:
“This Court … recognizes that a cause of action for the tortious transmittal of herpes simplex virus type II (genital herpes) exists under the law of Alabama. Our holding is in line with the public policy of this state, which seeks to protect its citizens from infection by communicable diseases. That policy encompasses sexually transmitted diseases…”
The following quotation from the judgment of Justice Jones (one of the judges who heard the appeal) shows how the court, to justify its decision, relied on (i) the cases where claims were allowed for transmission of NON sexually transmitted disease, (ii) the few cases from history where judges tried to “do what was right” such as Crowell and De Vall, and (iii) decisions such as the one in Kathleen K v Robert B.
“For over a century, liability has been imposed on individuals who have transmitted communicable diseases that have harmed others. This result has also long been reached in cases dealing with the transmittal of venereal diseases. Several recent decisions in other jurisdictions have specifically imposed liability where the disease involved was genital herpes.”
So there you have it. The courts really have come full circle. So much so that recent years have even seen such public figures as Robin Williams, Stevie Wonder, Mike Tyson, Michael Vick and others, sued for monetary damages for transmitting a sexual disease (often herpes) to another person. (By the way, to cover myself legally, I have to remind you that just because someone sues these people alleging they have – and transmitted – herpes, doesn’t mean it’s necessarily true).
Courts today, then, generally agree that just because you have sex with someone, that doesn’t necessarily mean that you have “assumed the risk” of catching an STD from them.
Of course, if the person TOLD you they had herpes, or if you noticed blisters on their “apparatus” before having sex with them, then in those circumstances, a judge would probably decide that you had assumed the risk of catching something. But if, as is most often the case, you were told nothing, and noticed nothing out of the ordinary, then it is likely that you have a good case. A case in “negligence”.
Genital Herpes and Tort Law Note:
I’ve been explaining how tort lawyers these days prefer to use the “negligence approach” (the defence to which is assumption of risk) rather than the “battery” approach (the defence to which is consent). Quite a few lawyers though, especially the ones who lack confidence, use the scattergun method and try to use BOTH negligence AND battery allegations, just in case one or the other fails. Some even throw in “fraud” and “intentional infliction of emotional distress”. The most desperate even still try “seduction”.
Genital Herpes and Tort Law: The problem of proof
If you’ve already read the section ‘Genital Herpes and Criminal Law’, you’ll know that judges in criminal cases are very demanding when it comes to proof, while judges in tort cases are a little easier to please.
Yes, whereas in criminal cases the prosecutor has to prove his case “beyond reasonable doubt”, in tort cases the plaintiff’s attorney only has to prove the facts “on the balance of probabilities”.
Cutting out the legalese, we can say that a criminal lawyer has to make sure the judge is 99% convinced the defendant “did it”, whereas a tort lawyer only has to make sure the judge is 51% convinced the defendant “did it”.
Don’t get me wrong – it’s not EASY for a tort lawyer to prove his case. But because of these two different “standards of proof”, it IS easier than in a criminal prosecution.
Actually, there’s another reason why a tort lawyer has an easier job than a criminal prosecutor in proving his case.
Remember how a criminal lawyer is pretty much stuck with using the “assault/consent” approach, whereas a tort lawyer can choose between a “battery/consent” and a “negligence/assumption of risk” approach? Well, in those “assault/battery/consent” cases, you have to prove that the defendant ACTUALLY KNEW he had herpes (another reason not to use them!). In contrast, in the “negligence/assumption of risk” cases, you can show that the defendant actually knew he had herpes, OR just that the defendant SHOULD HAVE KNOWN that he had herpes.
It’s a lot easier to prove that someone should have realised they had herpes (did they ever notice a rash?) than to prove that they actually, definitely did know!
Genital Herpes and Tort Law: A special note for Kiwis
Hey, are you from New Zealand? Well, if so, I’m afraid you’ll have to disregard just about everything I’ve said above. Sorry about that!
You see, in the 1970s (probably before you were born!), there was a referendum in New Zealand. The government was concerned that too many people were suing one another, and that this meant the courts couldn’t cope, or concentrate on “more important” cases like murder, rape and kidnapping.
Well – and this is a pretty HISTORIC thing to do – the Kiwis agreed with their government and voted to GIVE UP THEIR RIGHT TO SUE PEOPLE FOR PHYSICAL INJURY, in return for the government setting up a fund (which you know as “ACC”) to compensate people automatically for any physical injury.
That’s why, today, if you get hurt on the rugby field (rugby’s your game, right?), you can just go and ask ACC for money to pay for your medical treatment – and even to pay your salary if you can’t go to work. Same deal if you catch genital herpes.
On the other hand, you can’t sue the chap responsible for getting you into the mess in the first place.
Is ACC a good idea? Read the section ‘SHOULD I sue them for millions’ to get my opinion.
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