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Liability for HIV infection: Top California State court rules man in lawsuit must tell sexual history to wife
 
 
  Bob Egelko, SF Chronicle Staff Writer Tuesday, July 4, 2006
 
A man who is accused of infecting his wife or longtime sexual partner with the AIDS virus may have to disclose his past sexual activities to determine whether he should have known he was HIV-positive, the state Supreme Court ruled Monday.
 
Emphasizing that the ruling applied to married or monogamous couples and not necessarily to those in casual relationships, the justices voted 4-2 to allow damages against someone who knew, or had reason to know, that he or she was infected with the human immunodeficiency virus before spreading it to a partner.
 
Among the information that a lawsuit defendant may have to reveal are the dates and frequency of high-risk sexual behavior, such as unprotected sex between two men or between someone of either sex and an intravenous drug user. A defendant may also have to disclose any medical tests or symptoms that might have indicated that he or a partner was infected.
 
Names of past sexual partners would not have to be disclosed, although dissenting justices said the ruling would encourage plaintiffs to seek those identities.
 
The chief issue in the case, a lawsuit filed by a woman against her ex-husband, was whether an HIV-positive person who hadn't yet been tested for the virus could be held responsible for infecting a partner. The majority said yes, if there was evidence that the defendant should have known of the infection.
 
"Limiting liability only to those who have actual knowledge they are infected would discourage those who fear they may be infected from getting tested,'' said Justice Marvin Baxter. He was joined in the majority by Chief Justice Ronald George and Justices Ming Chin and Carol Corrigan.
 
Baxter said each person is responsible for acting with reasonable care to prevent injury to others -- care that may include refraining from unsafe sex when the person should know he or she has been exposed to a life-threatening disease.
 
He cautioned that Monday's case involved a couple who had been engaged and later married, and who therefore assumed a legal responsibility to look out for one another's interests.
 
"We need not consider the existence or scope of a duty for persons whose relationship does not extend beyond the sexual encounter itself,'' he said.
 
Dissenters said legal responsibility should be limited to those who knew they were HIV-positive.
 
Justice Carlos Moreno said the majority relied on rulings involving other sexually transmitted diseases that do not have the same life-threatening nature, or social stigma, as AIDS.
 
The type of legal claim allowed by the majority "potentially licenses invasions into the sexual privacy of all sexually active Californians,'' Moreno said. He said the ruling could discourage people from disclosing infection and was contrary to the judgment of the Legislature, which has made it a crime knowingly to infect someone with AIDS.
 
Baxter countered that a less-demanding standard is common for civil suits.
 
Another dissenting justice, Kathryn Mickle Werdegar, said the ruling creates the prospect that anyone could be "drawn into intrusive litigation ... whenever a former partner, or that partner's subsequent partner, contracts a sexually transmitted disease.''
 
The seventh justice, Joyce Kennard, said the court should have avoided deciding whether a defendant had to know he was infected to be found liable. Regardless of the standard, she said, the ex-husband in Monday's case could be questioned about his sexual history because he had made it an issue by claiming, in response to his ex-wife's lawsuit, that she had infected him.
 
The plaintiff, identified as Bridget B., sued her ex-husband, John B., in Los Angeles County for allegedly infecting her before or during their marriage.
 
According to her lawsuit, between the time of their engagement in late 1999 and their marriage in July 2000, John assured her he was healthy and monogamous and insisted they stop using condoms. Bridget said she tested positive for HIV in October 2000.
 
John tested HIV-positive later that month and was diagnosed with AIDS in 2001. Bridget said he told her for the first time in November 2001 that he had had sex with men before their marriage. He also said he had tested negative for HIV in August 2000.
 
In Monday's ruling, the court said John, in pretrial questioning, must disclose when and how often he had sex with men, because it might show whether he should have known he was infected.
 
However, the disclosure is limited to the six months before his negative test in August 2000, the court said, because the Centers for Disease Control and Prevention has found that an HIV-infected person will test positive within six months. An appellate court had allowed questioning about his sexual conduct in previous years.
 
John B.'s lawyer, Eric Mul- thaup, said the court's standard for holding defendants responsible if they should have known they were infected was "so fuzzy and non-specific as to give very, very little guidance to people about what they are obligated to do when they're out leading their social lives.''
 
But Multhaup said the justices provided each side in the case with "the protections that they most needed'' -- for John, a six-month limit on the inquiries about his sexual history.
 
Bridget B.'s lawyer was unavailable for comment.
 
The case is John B. vs. Superior Court, S12824.
 
 
 
 
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