In the last decade, there has been a significant increase in sex torts litigation. SBEMP has been at the forefront of that surge, due in large part to its representation of the plaintiff in Behr v. Redmond (2011) 193 Cal.App.4th 517, which is believed to be the largest jury verdict in the United States for the transmission of a sexually-transmitted disease. Since then, SBEMP has built on its success with other seven figure verdicts, including the largest jury verdict in the State of Texas for a sex tort, and has developed a national reputation as the leading firm in this field.
B. Sexually-Transmitted Infections/Diseases
Sexually-transmitted infections/diseases (“STI”) are bacterial or viral. Bacterial STIs, such as syphilis, gonorrhea, and chlamydia, are typically treatable with antibiotics. If diagnosed quickly, these types of STI typically resolve without further complications. The physical and psychological damage caused by a bacterial STI is usually temporary because it is curable through prescription medication.
The human immunodeficiency virus (“HIV/AIDS”), the herpes simplex virus (“HSV-1” and “HSV-2”), and some forms of the human papilloma virus (“HPV”), are incurable. Because these viral infections are incurable, they can cause significant physical and psychological damage to those infected. Although there are treatments available for viral STIs, those treatments typically manage the symptoms and in some situations minimize the risk of transmission, but they do not cure the infection.
For current medical and statistical information about sexually-transmitted infections, see the United States Centers for Disease Control and Prevention website at https://www.cdc.gov/std/, and the American Sexual Health Association website at http://www.ashasexualhealth.org.
The two forms of STI most commonly involved in sex torts litigation are HSV (Type 1 and Type 2) and HIV/AIDS.
1. Facts about the Herpes Simplex Virus
Although there are many forms of the herpes simplex virus, only two types are typically involved in sex torts litigation: HSV-1 and HSV-2. HSV-1 is commonly referred to as oral herpes because outbreaks of HSV-1 have historically appeared primarily on the face, lips and mouth. HSV-2 is commonly known as genital herpes because outbreaks of HSV-2 have historically appeared on or around the genital area. With the expansion of various sexual practices, such as oral sex, the common designation of the herpes infection as “oral” or “genital” based on the location of the outbreak is less accurate. It is more common to find HSV-1 infections appear in the genital area and HSV-2 infections in or around the mouth and lips.
Herpes is a viral infection characterized by recurring outbreaks of small, fluid-filled, painful blisters/lesions on the affected skin or mucous membranes. The initial outbreak of an HSV infection is typically the most severe characterized by an outbreak of very painful blisters/lesions, flu-like symptoms, such as fever and body aches, and in more severe cases it may cause difficulty urinating requiring hospitalization. The outbreaks typically reduce in severity and frequency over time, but the course of the infection varies from person to person.
Herpes often exhibits long periods of latency where the virus remains dormant in nerve cells at the base of the spine. Although there are no symptoms during latency period, the infected person is still contagious and may transmit the virus through a process called asymptomatic shedding. When the virus reactivates, it causes an eruption of blisters/lesions and other associated symptoms.
Approximately 16% of the population between the ages of 14-49 are infected with HSV-2. HSV-2 is more common among women than men (20% versus 11%). The total number infected is higher when HSV-1 is included.
Unlike other forms of STIs, which are transmitted through bodily fluids, herpes is transmitted by direct skin-to-skin contact. Transmission can occur during vaginal, oral or anal intercourse whether or not the infected person is having an outbreak. Transmission without an active outbreak occurs through asymptomatic viral shedding. Asymptomatic viral shedding means that the virus is on the surface of the infected person’s skin or mucus membranes, in the absence of any signs or symptoms. Almost all infected persons are at risk for asymptomatic shedding and there is no effective method to predict when this occurs (it is not tied to the frequency of outbreaks). It is estimated that up to 70% of HSV infections are transmitted during shedding. Exposure to an infected person, however, does not always result in infection.
b. Incubation Period and Symptoms
It is estimated that as many as 50% of the persons infected with HSV are asymptomatic; meaning they do not experience or outbreak or their symptoms are so minor they are often confused with other more common conditions. When symptoms do occur, they usually appear between 2 to 12 days after exposure, with the average being 4 days.
Symptoms of genital herpes differ between the first and recurrent (or subsequent) outbreaks. The first outbreak of herpes is often associated with a longer duration of lesions, increased viral shedding (making HSV transmission more likely) and systemic symptoms including fever, body aches, swollen lymph nodes, or headache. An initial outbreak may last from 2 to 4 weeks. Recurrent outbreaks of herpes are common, and many patients who recognize recurrences have pre-symptoms, either localized pain, or tingling or shooting pains in the legs, hips or buttocks, which occur hours to days before the eruption of lesions. Symptoms of recurrent outbreaks are typically shorter in duration and less severe than the first outbreak of genital herpes.
c. Diagnosis and treatment
HSV-1 and HSV-2 are typically diagnosed in one of two ways. A viral culture is performed by taking a sample from an active lesion and submitted for laboratory testing. The viral culture detects the presence of the actual virus. The second method is a type-specific serology, or blood, test, which involves taking a blood sample. The purpose of the test is to detect the presence of the specific antibodies that form in response to the viral infection. The antibodies are called IgG and the test is type specific because it can determine whether the infection is HSV-1 or HSV-2 (or both). A viral culture can detect an infection immediately. Antibodies typically form in detectable levels between one week and four months after infection. The blood test is typically administered several weeks after exposure to allow antibodies to form and be detectable.
There is no cure for herpes though treatments are available to manage symptoms and outbreaks. Typically, persons infected are prescribe anti-viral medications which are taken either as outbreaks occur or on a daily basis as prescribed by their doctor.
2. Facts about HIV/AIDS
Similar to herpes, an HIV infection may be caused by two types of virus: HIV-1 and HIV-2. AIDS, or Acquired Immunodeficiency Syndrome, is the most severe form of HIV.
HIV is transmitted when an uninfected person comes into contact with an infected person’s bodily fluid, which contains the virus or infected cells. Transmission primarily occurs via blood, vaginal secretions, semen and breast milk. It is extremely rare for HIV to be transmitted through urine, tears or saliva. The three primary means of transmission are: 1) Injection or infusion of contaminated blood. This can occur during blood transfusions, needle sharing or an accidental prick with a contaminated needle. (In this latter circumstance, a person has a 1 in 300 chance of contracting HIV); 2) Sexual contact with an infected person. During this method of transmission, the mucous membranes lining the penis, vagina, rectum and mouth are exposed to HIV-contaminated bodily fluids; and 3) Transfer of the virus from a mother to a child before, during or after birth. As with herpes, exposure to HIV does not always result in infection.
An infected person does not always experience symptoms after infection. However, within a few weeks of transmission, a person may experience fever, swollen lymph nodes, rash and/or fatigue for a few weeks. Even with no symptoms, a person can begin to spread the virus soon after they are infected.
c. Diagnosis and treatment
HIV is detected typically through blood testing to detect the presence of antibodies that form after infection. HIV/AIDS treatment is complex and varied and is beyond the scope of this summary. However, medical advancements have made it possible for infected persons to reach anticipated life expectancy in many cases.
B. Sex Tort Liability
The STIs most commonly involved in civil or criminal cases are HSV-1/HSV-2 and HIV/AIDS. Generally, a person who knows he or she is infected with a sexually-transmitted infection, must either avoid sexual contact with uninfected persons or fully disclose the infection to any uninfected person before engaging in sexual contact.
In certain circumstances, infecting someone with an STI can result in criminal and/or civil liability.
1. Criminal Liability
States imposing criminal liability typically differentiate between HIV/AIDS and other forms of STI. Transmission of HIV/AIDS can result in felony charges, whereas the transmission of other forms of STI are subject only to misdemeanor charges.
Currently, there are 21 states with laws making it a felony to knowingly expose or transmit HIV/AIDS. There are 28 states with laws making it a misdemeanor to knowingly expose or transmit an infectious venereal disease. There are variations from state to state in the type of conduct that would subject someone to criminal prosecution, but the critical feature required for any criminal charge is that the infected person must have known they were infected and engaged in sexual contact without disclosing to the uninfected person.
2. Civil Liability
A person infected with an STI by someone may have a legal right to recover monetary damages from that person by filing a lawsuit. The injured person may assert a variety of legal theories on which to base their right to recover damages: 1) sexual battery; 2) fraudulent misrepresentation if the infected person lied about being infected; 3) fraudulent omission if the injured person failed to disclose they were infected; 4) negligence; 5) violation of statute (if it occurred in a state with statutes imposing liability for transmission of an STI), and 6) intentional or negligent infliction of emotional distress.
Sex tort claims can be difficult to prove, but there have been many successful cases, and SBEMP has prosecuted several of them. For example, in Behr v. Redmond (Riverside County Superior Court, 2009), the plaintiff was awarded $4,250,000, including punitive damages; in Saadian v. Saadian (Los Angeles Superior Court, 2010), the plaintiff was awarded $2,490,000, including punitive damages; and in A.S. v. N.F. (Dallas Circuit Court, TX, 2015), the plaintiff was awarded $1,660,000, including punitive damages).
Settlements of these types of claims often range from several hundred thousand to in excess of one million dollars.
3. Legal Considerations in Sex Torts Litigation
There are many non-legal considerations an infected person must evaluate before deciding whether to proceed with a sex tort lawsuit. Those considerations will vary depending on the individual. In considering the legal options, there are certain factors to consider before filing a sex tort lawsuit.
To recover damages under any legal theory, a plaintiff will have to prove the following elements: 1) the defendant was infected with an STI; 2) the defendant knew, or should have known that he or she was infected with an STI; 3) the defendant failed to disclose the STI or falsely represented that he or she was not infected; and 4) causation: the defendant transmitted the STI to the plaintiff.
- Proof of Infection: proving that the defendant is infected can often be difficult. Particularly when HSV-1/HSV-2 is involved because many infected persons do not know they are infected if they have not experienced any symptoms or outbreaks.
- Proof of Knowledge: this element may also be difficult to prove. However, the infected person sometimes admits he or she knew they were infected, or they have prescription medication for the treatment of the STI, which indicates knowledge, or there are medical records or other forms of proof are available.
- Failure to Disclose: the person infected is usually the only source of evidence on this element. For that reason, these cases are frequently a credibility contest because it is one person’s word against the other.
- Causation: the plaintiff must be able to prove that the defendant transmitted the infection to her or him. In other words, the plaintiff will need to be able to prove that she or he was not infected before engaging in sex with the defendant. The most definitive form of proof is a laboratory test with a negative result immediately prior the start of the sexual relationship. In the absence of such evidence, other forms of proof will be needed to show the plaintiff was not previously infected.
- Damages: damages in a sex torts case are comprised of physical and psychological injuries. HIV/AIDS and HSV are permanent physical injuries because they are incurable. The physical complication will vary from person to person, but lifelong physical injuries are serious. The psychological and emotional injuries will also vary from person to person, but the psychological injuries in these cases are frequently the largest component of damages.
- Other considerations: a sex torts lawsuit can result in an invasion of privacy for the parties. The background of the case involves a person’s sexual and medical history. There will be questions and investigation into the parties’ sexual practices, sexual history, former partners, and other very personal and confidential information. There are ways to protect confidentiality, but they are not always successful and the plaintiff must be prepared for a certain amount of intrusion in their personal life. Civil claims must be filed within the time required by law; otherwise, the claims may be barred. Once you discover that you are infected, you must promptly investigate and pursue your claim before the statute of limitations expires. To learn more about the timing of your claims, you should consult with an experienced attorney about your case.
- Settlement or trial: there are generally two ways a person can be awarded damages in a sex torts case: by settlement or by verdict after trial. A settlement is an agreement by the defendant to pay damages. A verdict is issued by a judge or a jury after a trial. A large majority of personal injury cases, including these types, are resolved through settlement. To learn more about settlements and trials, it is important to speak with a qualified attorney about your specific case.
4. What You Can Do
If you have been infected with a sexually-transmitted infection causing long-term or permanent injuries, and believe it was done by someone who had knowledge they were infected, you may have a legal claim to recover for your injuries. Please contact our office. We will provide a confidential consultation to discuss your situation, your health, your long-term options and whether a civil lawsuit would be appropriate for you. Our qualified attorneys will evaluate your case and explain your rights and options. We value the privacy and interests of our clients and promise to treat you with the utmost care, attention and respect. Please contact us to learn more about your legal rights.