There are an estimated 19 million new infections from sexually transmitted diseases (STDs) in the United States every year. One out of six people between the ages of 14 and 49 is infected with genital herpes simplex virus type 2, one of the viruses that can cause the STD genital herpes.
In recent lawsuits, persons with genital herpes contracted from their sexual partners have alleged negligence and intentional infliction of harm and emotional distress. Judges and juries alike have sided with these plaintiffs. In June 2012, a jury awarded an Oregon female $900,000 in damages against a man she sued for intentionally infecting her with genital herpes. This case was the first of its type to go to trial in Oregon. The plaintiff suffered a herpes outbreak 11 days after engaging in unprotected sex, despite her request that her male partner wear a condom. She sued for pain and suffering claiming that the man committed battery by intentionally giving her herpes. The man claimed that he honestly did not know that herpes was transmissible while he was asymptomatic. The jury found that the man’s negligence caused the plaintiff’s harm, and that he committed battery by intentionally engaging in sexual activity.
A similar case was upheld by the California Court of Appeals in 2011. In Behr v. Redmond, 123 Cal.Rptr.3d 97 (Cal. App. 4th Dist. 2011), the appellate court affirmed a lower court’s judgment against Redmond for negligently infecting his ex-girlfriend with herpes and fraudulently concealing his condition. According to Behr, the two started having unprotected sex in October 2003, after Redmond told her he was “healthy.” Behr experienced her first herpes outbreak six months later. She filed a complaint against Redmond alleging battery, negligence, negligent and intentional infliction of emotional distress and fraud by concealment and misrepresentation. Essentially, she argued that Redmond knew he had herpes, concealed the condition, led her to believe that it was safe to have sex, and that these actions caused her to contract herpes and suffer damages.
The jury found that Redmond’s negligence was a substantial factor in causing Behr’s harm despite some negligence on Behr’s part. The jury also found that Redmond fraudulently concealed his condition and caused her severe emotional distress. Behr was awarded $4,003,600 in compensatory damages, $2.5 million of which was allotted for future medical expenses. On appeal, the Court of Appeals affirmed the majority of the jury’s verdict, but reversed the claim of fraud by misrepresentation and reduced future medical expenses to $72,000 and total compensatory damages award to $1,575,600.
These recent lawsuits bring to light the serious risk of transmission of STDs as a public health problem. The World Health Organization recently warned that an antibiotic-resistant strain of gonorrhea was spreading globally and could soon leave infected persons without any treatment options. In terms of public health and STD prevention, large damage awards in exceptional cases, though unusual, may motivate infected persons to notify their partners before engaging in sexual acts. Media reports of these tort claims may also raise awareness of the continued need for preventive efforts.
This information was developed by Leila Barraza, J.D., M.P.H., deputy director, Network for Public Health Law – Western Region at the Sandra Day O’Connor College of Law, Arizona State University (ASU), and Kim Weidenaar, J.D., candidate and legal researcher, Sandra Day O’Connor College of Law, ASU.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.