By Shaun Murphy
A developing trend in the law would be to allow partners, and sometimes third parties, to recover for the involuntary disease of a sexually transmitted disease. In most sex tort cases, the obligation of the infected party who either knows, should find out, or assumes they were infected with a sexually transmitted disease is either to refrain from sexual conduct with other people, or to warn others of the infection prior to participating in the act.
Why Sex Tort Cases Are Not Straightforward
Sex tort cases are not as straightforward as some personal injury cases. Where prior knowledge and/or intent is involved, it must be proven in this case. In the case of a sexually transmitted disease, the parties may not know exactly where or when the injury happened, nor would they know who caused it.
Symptoms for STDs may not appear quickly, sometimes not even for decades. In cases where there were numerous sexual partners, for either party, demonstrating who was accountable could be challenging.
What Needs To Be Proven In Sex Tort Cases
To be able to succeed on a negligence case, the plaintiff has to demonstrate that:
(1) the defendant was obligated to adapt his behavior to a particular norm,
(2) the defendant didn’t do so,
(3) the defendant’s poor behavior was in fact the cause for the plaintiff’s injuries,
(4) the defendant’s poor behavior was a legal cause of the plaintiff’s injuries, and
(5) actual damages to the plaintiff happened.
What Is At Risk For Infected Individuals
Due to the issues in sex tort cases, there are several states that have passed laws for HIV positive or STD infected individuals to refrain from having sex, or to at least notify their spouses or partner before participating in sexual activities.
In cases like this, infected STD individuals have the obligation to not spread the disease knowingly, or to hide it in their own sexual partners.
Based on the jurisdiction’s law where an incident happens, transmitting sexually transmitted diseases can then put the infected individual at risk for civil and criminal liability.
Why Infected Individuals May Not Want to Disclose
Yet, STDs are a private discussion and many feel hesitant to disclose that information with their sexual partner.
Many believe transmitting STDs knowingly is a form of sexual activity violence and is a selfish action, based solely without concern for the other person involved. There are some customs and trends where men will release a condom during sexual activity, which can lead to transmitting the disease. Because a guy who is removing his condom isn’t simply possibly exposing his spouse into an STI, he is also exposing himself.
In order to foster more people to choose healthy behaviors and STD prevention, large damage awards occur in exceptional instances of sex tort cases. Although infrequent, these may motivate infected participants to notify their spouses before engaging in sexual acts.
To see if you have evidence for a sex tort case in Palm Springs, contact our attorneys at (760) 322-2275.