A positive herpes test, like a positive test for any STD, is very frustrating and stressful.
- Herpes is not curable. Once you have it, you have it for life
- The perceived stigma of having it, along with a lot of misconceptions, stress people even more
When they find out about their positive test, people usually scrutinize their current or recent relationship and blame their partner.
The most common reason for a herpes-related lawsuit is not discussing the issue with a partner: withholding the truth.
Since we’ve been dealing with STDs for decades, we’ve served as medical expert witnesses in court.
This article is a doctor’s perspective on certain legal issues. It is not legal advice, and we encourage you to contact an attorney if you need legal advice.
Common-sense things to keep in mind
Here are a few common-sense rights and obligations we all should be aware of:
- You have a legal right to know about your sexual partner’s health status
- You have a legal duty to disclose any significant health condition that can affect someone else
- By consenting to having sex, you are not consenting to getting an STD
Minimizing the risk of a lawsuit against you
Following these simple rules will lessen the chance that you’ll be sued because of an STD:
“The number of lawsuits arising from ….herpes transmission is on the rise”
- Take the common, readily available steps to find out if you have any STDs. Get tested regularly. It’s a good idea to follow CDC recommendations, which are the standard of care for US physicians, with respect to STD testing
- Be truthful. Tell your sexual partner about your sexual health
Herpes lawsuits
The number of lawsuits arising from HPV and herpes transmission is on the rise, but there are still only a small number of them.
In general, herpes lawsuits are usually unsuccessful because it’s difficult to prove that:
- You were infected recently
- A particular person gave you the infection
- Your partner intentionally hid or failed to disclose information
- The disease has caused permanent, irreversible damage
One consideration is that it is not possible to obtain your partner’s medical records to investigate whether you might have a good case. You can’t get that information until after you file a lawsuit.
Criminal versus civil court
The law of the state you live in determines whether transmitting herpes to another person may be considered a crime or only a matter of civil law, or both.
Criminal court
In states where transmitting herpes to another person can be a crime in the right circumstances, it is punishable with imprisonment or (typically) a fine.
When someone files a criminal complaint, the police will investigate and collect evidence.
If you transmitted herpes knowingly (that is, you knew you’re positive and didn’t disclose it), you can be found guilty of a misdemeanor, which is punishable with up to one year of imprisonment or a fine (or both).
Civil court
In most states, if you knowingly pass an infection to another person, you can be sued for monetary damages under common law tort principles.
When making a decision, civil courts rely on economic, ethical, and legal principles, including previous similar cases.
Everything comes down to these questions
In both criminal and civil cases, the outcome will depend on the answers to the following questions:
1. Did the defendant know they have an STD?
2. Did the defendant take reasonable steps to discover the condition?
3. If the defendant was hiding the information, was it intentional or inadvertent?
4. Did the defendant take reasonable and available steps to minimize the risk of transmission?
5. Did the plaintiff (in civil court) or complainant (in criminal court) recently acquire the infection?
6. Did they get it from the defendant (as opposed to someone else)?
Let’s talk about each part and the complexity of proving it.
1. Did the defendant know they have an STD?
The plaintiff (in civil court) or the state (in criminal court) will have to prove that the defendant knew they had the infection.
2. Unless the defendant admits it, documentation of past lab testing will have to be obtained. There is no universal data center from which to request those results.
Did the defendant take reasonable steps to discover the condition?
Herpes is not a condition that is routinely tested for, and the CDC doesn’t advise testing.
Testing occurs mainly when the person has symptoms (which only a minority of people with herpes do) to rule out other condition and to determine the cause of skin lesions.
3. If the defendant was hiding the information, was it intentional or inadvertent?
Unless the defendant admits to having herpes and not disclosing it to their partner before engaging in sexual activity with them, proof of this through documentation and perhaps witness testimony will be necessary. It’s unlikely that the plaintiff/complainant will be able to get such documentation, to investigate the feasibility of a case, before taking the step of filing a lawsuit.
If the defendant knew about the condition and hid the information from their partner, that’s considered an intentional harm.
If the defendant forgot to tell their partner about the condition, it’s considered negligence.
4. Did the defendant take reasonable and available steps to minimize the risk of transmission?
This question focuses on whether the defendant used all available means to decrease the risk of transmission, such as taking antiviral medication and using condoms or other protection.
5. Did the plaintiff (in civil court) or complainant (in criminal court) recently acquire the infection?
It should be proven through lab documentation that the plaintiff didn’t have herpes before getting together with the defendant.
As mentioned earlier, a herpes test is not one of the routine tests usually performed even for someone who asks for a “full STD panel.” Therefore, most people haven’t been tested for herpes.
6. Did they get it from the defendant (as opposed to someone else)?
The plaintiff/complainant will have a hard time proving that they got the infection from the defendant
“ The plaintiff/complainant will have a hard time proving that they got the infection from the defendant.”
- A person with herpes can be asymptomatic for a long time—many years
- Herpes can be transmitted in nonsexual ways by friends and family members
- The claim of the plaintiff/complainant (who has the burden of proof) should be supported with before-and-after medical records (lab reports) of both parties
Ultimately, it all comes down to medical expert witnesses testifying about different possibilities.
Conclusion
People do sometimes bring criminal complaints against a sexual partner who gave them herpes or sue them for money damages in civil court. However, these cases are seldom successful because proving their legal elements is difficult for a variety of reasons.
Getting tested regularly, being honest with your partner about your health in general and any positive STD test in particular, and giving your partner the choice of whether to have sex with you will go a long way toward avoiding being sued.
This article is not legal advice. It was written by a physician who is not trained in the law, and it is intended solely to provide information from a physician’s perspective. You are encouraged to consult with an attorney if you would like legal advice.
