Law and HIV

The California Supreme Court will hear arguments today in a suit where a wife contracted HIV from her husband.

The facts, as I read them, make it a clear cut issue. The press report it as whether a husband has a ‘duty’ to disclose his past sexual encounters to the wife. I think the more accurate question is whether or not the husband has a duty to report he could have a STD based on past sexual history.

Facts
The husband, allegedly, had sex with men before being married (and perhaps after), though he didn’t test positive until three months after the marriage (October 2000). The wife apparently got sick and tested positive before him (In September).

It’s important to note that California does not (as I understand it) require blood tests for a marriage license.

She is alleging he infected her (based partially off a medical opinion that the husband’s HIV could not have progressed as quickly to AIDS as it did).

There seems to be two main questions:

1. Did the husband have a legal duty to disclose to her his past sexual activity?
2. Is the Husband now required to provide information about his past sexual activity.

Both of these questions, though, are complicated, and Hhow you frame and answer the first question, directly impacts the second question.

I don’t believe, legally, that a person has a duty to give a full accounting of their previous sexual encounters. (Morally, is another question). I do believe they have a duty to disclose any STDs they have, including HIV.

But what if the person doesn’t know for a fact? Can a negligence claim proceed on the belief that a person should have known that they were infected. Certainly, Negligence doesn’t always require a definitive knowledge that a harm could occur from some action. The standard is whether a reasonable person should have suspected it.

The mans sexual past is relevant to that inquiry. If he had numerous encounters of unprotected sex with people (male or female), I would think a reasonable person should have suspected they could be infected. On the other hand, if the husband had an HIV test that showed he was negative at the time of his marriage – then that would lead a reasonable person to think he was not infected. (As a side note, there apparently was a suspicious HIV test done around the time of the marriage. I think it was a ruse by the husband – because a doctor’s office allegedly called the wife and asked her to tell the husband he was negative – which violates all sorts of standards and seems unlikely to have been done by a legitimate doctor’s office, or even free clinic).

An argument could bed made that the woman assumed some of the risk, by not requesting an HIV test and sleeping with him unprotected. Of course, any fraud would negate such an argument).

It seems to me unlikely that the court would disallow the right of the woman’s requests, since it all seems directly relevant to the legal arguments she’s making. It may restrict the items somewhat (She’s asking for the names and addresses of the people – which seems overkill to me.)

Larry Bernard said (at April 4, 2006 01:16 PM):