California Supreme Court Rules That Withholding Sexual History Can Be Grounds for Lawsuits Involving HIV Transmission

The California Supreme Court on Monday ruled 4-3 that an HIV-positive woman can sue the sexual partner from whom she contracted the virus, even if the man did not know he was HIV-positive at the time, the New York Times reports (Liptak, New York Times, 7/4). The court also ruled that a portion of the man's sexual history must be disclosed in the case (Cooper, Sacramento Bee, 7/4). A California law (SB 705) makes it a felony, punishable by up to eight years in prison, to knowingly expose or infect an unaware person to HIV. The law also allows a person's HIV status to be disclosed if the person is the subject of a criminal investigation for committing this crime (Kaiser Daily HIV/AIDS Report, 9/10/03). In the case, a woman identified as Bridget B. in 2002 sued her husband, identified as John B., for allegedly negligently or intentionally infecting her with HIV (Krupnick, Contra Costa Times, 7/4). John shortly after they began dating in 1998 told Bridget he was monogamous and did not have any sexually transmitted infections. According to the decision, John also insisted that they stop using condoms. The two were married in July 2000, and Bridget tested HIV-positive in October 2000. John was diagnosed with the virus shortly after, and the two blamed each other for transmitting the virus, according to the Los Angeles Times. John later said he had had sex with men before the marriage, the Los Angeles Times reports (Weinstein, Los Angeles Times, 7/5). Bridget in 2002 sued John, claiming that he negligently or intentionally infected her with HIV, the Contra Costa Times reports (Contra Costa Times, 7/4). A Los Angeles trial judge ruled that Bridget as part of the pretrial discovery process was entitled to know the name, address and telephone number of every man with whom John had had sexual relations in the previous 10 years. A California appeals court later ruled that Bridget was only at liberty to know the date of John's first sexual encounter with a man and the number of times he had sex with men in the previous five years. The state Supreme Court in its ruling Monday said that Bridget was entitled to know John's sexual activities in the six months before John tested negative for HIV in August 2000, citing a CDC finding that a person will test positive for the virus within six months of contracting it.

Ruling, Dissent, Reaction
Justice Marvin Baxter in the majority opinion wrote that "negligent transmission of HIV does not depend solely on actual knowledge of HIV infection" but also if the person "has reason to know" he or she might be living with the virus. The ruling defined "reason to know" as when there is cause for a "reasonably intelligent" person "to infer he or she is infected with the virus or that infection is so highly probable that his or her conduct would be predicated on that assumption." The ruling also says, "If only those who have been tested [for HIV] are subject to suit, there may be an incentive for some persons to avoid diagnosis," adding that extending liability to people with "constructive knowledge of the disease ... will at least provide a small incentive to others to use proper diagnostic techniques to alter behavior and procedures so as to limit the likelihood of HIV transmission" (Los Angeles Times, 7/5). Chief Justice Ronald George and Justices Ming Chin and Carol Corrigan joined Baxter in the majority opinion (Egelko, San Francisco Chronicle, 7/4). Separate dissents were filed by Justices Joyce Kennard, Carlos Moreno, and Kathryn Mickle Werdegar. Kennard agreed with the appeals court ruling, while Moreno and Werdegar said Bridget did not have the right to know John's sexual history except when he knew he was HIV-positive (Sacramento Bee, 7/4). Moreno wrote that the majority ruling "potentially licenses invasions into sexual privacy of all sexually active Californians and may even invite abuse of the judicial process," adding, "One can easily foresee a spate of 'shakedown' or 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 by exposing that person's sexual history." Eric Multhaup, John's attorney, said he was pleased with some portions of the court's ruling that limited the amount of information John had to disclose but added, "The court did not define what a person is supposed to do with any clarity or specificity." He said, "It's not going to help the people of California in knowing how to go about their social lives" (New York Times, 7/4). Bridget's attorney could not be reached for comment (Elias, AP/San Francisco Examiner, 7/3). Multhaup said the case now will return to a Los Angeles trial court for pretrial discovery (Los Angeles Times, 7/5).

Related Opinion Piece
The state Supreme Court's ruling is a "big deal in a state long ravaged by AIDS and long the subject of earnest legislative efforts to deal with the complicated liability and privacy issues that arise from the shadows of the disease," Andrew Cohen, a columnist and CBS News' chief legal analyst, writes in a washingtonpost.com opinion piece. The case raises "substantial questions of health and safety, privacy and responsibility, and the role of the government, if any, in overseeing the inherent intricacies and intimacies in personal relationships," according to Cohen. The majority's ruling, which creates a "new standard of liability" in California cases involving HIV transmission, holds a "great many ramifications" on state law that "were neither raised nor addressed by the opinion of the court," Cohen writes, adding the debate that likely occurred among the state Supreme Court justices is one that "would be better off taking place in public at the state Legislature, where the full impact of the public policy choice would be considered and debated." According to Cohen, the Legislature should "either formally embrace or reject" the court's ruling that "actual knowledge" of HIV-positive status is not always required for a person to be liable for transmitting the virus to another (Cohen, washingtonpost.com, 7/5).