When a Partner Gives You Herpes (cont.)

Leleux packed her bags and moved to another state, marrying a man who knew her history and was willing to contract herpes from her (which he promptly did).

Meanwhile, Domingue was left to ponder a sad truth: While it can take no more than a single night of sex to contract a sexually transmitted disease (STD), trying to collect damages for the hurt that follows can be a legal nightmare.

A Search for Justice

Complex questions, from science to social values, cause many civil cases to fall apart, though people who intentionally infect others are often successfully prosecuted under criminal law.

In fact, civil lawsuits involving people who unwittingly contract genital herpes, genital warts, chlamydia, gonorrhea, and other maladies during sex have failed to generate the kind of multimillion-dollar jury awards that attorneys envisioned in the early 1980s, when the number of STD cases nationwide began to explode.

"Even if you are successful," says Domingue, "you will never see justice done. Even if you manage to find a deep pocket, money is such a sad, inadequate remedy for a horrible violation of trust."

Personal-injury lawyer Stewart Perry of Minneapolis, who filed one of the first STD lawsuits 15 years ago, levels with would-be clients who want to pursue a sexual partner.

"When people say, 'I want to do something,' I say, 'You have a case, but do you want to pay for the fees and costs?' The answer is, 'I'll let you know,' " says Perry. "And they never call back."

Four Reasons Why Civil Cases Crumble

Why are civil cases involving STDs so difficult to litigate? Lawyers cite these reasons:

  • Causation troubles: Will a client be able to prove which partner gave him the disease? Does he even know for sure? Herpes has a relatively short incubation period, which makes it easier to lay blame. But other STDs can remain hidden for months or even years, making it all but impossible to trace the disease to a particular partner.
  • Missing symptoms: Men in particular are more likely to experience no obvious STD symptoms even though they are infected and contagious. Such "asymptomatic shedding" makes lawsuits more difficult by raising the question of whether or not someone can be found to be legally negligent if he unwittingly infects others.
  • Insurance exemptions: Companies offering personal liability coverage in homeowner's policies long ago excluded protection for "intentional torts," including those that involve the knowing transmission of a disease, sexual or otherwise. What's more, in many states "the laws are stacked against people and in favor of the insurance companies,'' says David Nagle, a lawyer in Austin, Texas.
  • Cultural attitudes and court venues: Where a lawsuit is filed can make all the difference when it comes to deciding right and wrong, particularly in cases of casual or extramarital sex.