Civil claims for getting an STD from sexual intercourse may take one of two forms: Either someone may get an STD from non-consensual sex, such as rape, or a partner may transmit an STD during what is otherwise consensual sex. If a partner knows he or she has an STD, was the sex consensual? In other words, would a knowing sexual partner agree to have sexual intercourse with someone known to have an STD? In either instance, the element of knowing consent is missing.
In other locations on this website, the issue of rape or sexual assault is addressed. While the act of sexual assault has horrific consequences for the victim, transmittal of an STD only compounds the anguish. Certainly, in instances of rape or sexual abuse, getting an STD from the assault adds to the damages one may recover. Studies have demonstrated that sexual offenders are at high risk for sexually transmitted disease.
This page focuses, instead, on instances involving what otherwise appears to be consensual sexual intercourse between of-age adults. When one gets an STD in such circumstances, what can be done?
A number of legal theories have been tried to impose liability on a sexual partner for transmitting a sexual disease. In most injury cases, a plaintiff must have competent medical testimony establishing that an injury was caused by wrongdoing. That may not be the case of STD’s.
Very few cases have considered the issue of whether someone can negligently transmit an STD, and what proof is necessary to do so. In Missouri, one such case was considered by the Missouri Court of Appeals when a woman contracted genital herpes from her sexual partner. The couple was not married. The Missouri court said that someone can be liable for transmitting an STD if “he knew or should have known that he was infected with a disease and failed to disclose or warn his sexual partner.”
A somewhat similar case was considered a few years later, and the Missouri Court of Appeals again ruled in favor of the injured wife who had contracted genital herpes from her husband. Whether the husband knew or should have known of his infection, was an issue that should have been properly considered by a jury.
Kansas has yet to consider the issue.
Can someone claim they are a victim of fraud or concealment if they contract an STD? Only one case has been decided in Kansas that addressed the issue of STDs. A married woman claimed that her husband and fraudulently concealed that he had herpes. The Kansas Court of Appeals, however, dodged the question of whether the wife cited a legally cognizable claim. Instead, the court ruled that the wife’s claim was barred by a Kansas statute that time-barred claims that were older than 10 years, irrespective of when the wife first learned of her infection or of the husband’s infidelity.
Other states have considered the issue. Minnesota and Tennessee courts have ruled that the source of infection is one commonly known to the sufferer, and does not require medical testimony to support. The evidence of transmission can be circumstantial. In one such case, the wife had sexual intercourse with a partner years before who now suffered from herpes. Thereafter, she had been married for many years without any signs of infection. A year after her husband’s extra-marital affair, she first exhibit symptoms of herpes. The Tennessee court concluded that this circumstantial proof was enough to present the case to a jury.
Finding insurance coverage to collect any settlement or judgment from a sexual partner may be a challenge. Many policies of liability insurance have an exclusion for “transmission of a communicable disease.” Ordinarily, a policy of insurance would have to define what is meant by those terms. The definition, if one exists, will provide guidance on whether a given policy affords coverage. Ambiguous terms in an insurance policy are generally construed against the insurance company, which had complete control on how the policy is worded. Generally speaking, a person may have no control over whether he/she sneezes in the presence of someone and transmits the common cold, the flu, or as of 2020/2021, COVID 19.
Things are arguably different when someone has a disease that can only be passed through sexual contact, especially when the person knows or has substantial reason to know of the infection. Many infections and communicable diseases can be passed indirectly by simply being in same room with another person. STDs require a specific type of contact. It is not random.
While this area of law is emerging, the attorneys at Monsees & Mayer are experienced and skilled in handling cases of sexual abuse and misconduct. STDs can carry terrible consequences.
