Can you sue? Perhaps. Just don't expect an easy win.
May 22, 2000 -- It sounded like the kind of case you could take to the bank.
Catherine Leleux of Louisiana was barely 18 years old in 1995 when she was seduced by her Navy recruiter, Petty Officer Paul Sistrunk. Several weeks later, she came down with a case of genital herpes.
Leleux sought out a personal injury lawyer, Lamont Domingue. Struck by her calm, affable demeanor, he agreed to take the case, even though he knew that a sex-related lawsuit in politically conservative Louisiana would be "ugly and hard-fought."
In filing suit, Domingue sidestepped Sistrunk and went after his employer, the federal government. After all, it had the deepest pockets, and it was vulnerable: Navy officials had discharged Sistrunk under "less than honorable conditions" after Leleux's complaint came to light. Domingue thought she could collect a half-million dollars.
But it was not to be: Last July, the U.S. Court of Appeals ruled that Leleux didn't have a case.
Technically speaking, the court said, Sistrunk's failure to disclose his herpes made the sex he had with Catherine nonconsensual, because she would not have agreed to it if she had known about his disease.
Reasoning further, the court held that if the sex was nonconsensual, it was battery. And because battery is intentional, under federal law the U.S. government could not be held liable (as it would have been if the sex had resulted from its negligence).
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.
Attorney Roderick Bushnell filed a lawsuit in liberal San Francisco in 1996 on behalf of an unmarried woman who contracted genital herpes after oral sex with a casual partner. But the case was transferred to relatively conservative Atlanta after the defendant convinced the court that the sexual act occurred there.
Worried that a Georgia judge would scuttle the case -- according to Bushnell, some Georgia jurists frown on casual sex and have been known to quote the Bible in their decisions -- the woman opted to settle out of court instead.
On the other hand, in 1998 the Maine Supreme Court ruled against a married woman who tried to make her husband pay for the herpes that he got from his mistress and subsequently gave to her. Legally, there was "no support" for the wife's argument that the husband had breached his duty to be sexually faithful during marriage, the judges wrote.
The fact is STDs are difficult to litigate no matter who's involved -- male or female, married or unmarried. As a result, many plaintiffs are forced to accept out-of-court settlements. Unfortunately, they don't become part of case law, meaning that they can't be used to establish any precedent, and even the financial terms are kept secret. For example, Robin Williams, the San Francisco actor and comedian, fought a $6 million herpes claim by a cocktail waitress, but paid her a settlement in 1992; the amount was not disclosed.
Why Money Alone is Not Enough
But even the most generous settlement can't fully compensate those who have contracted a chronic and sometimes incurable disease. Two of the most common STDs are herpes simplex virus-2 (HSV-2), also known as genital herpes, and human papilloma virus (HPV), which causes genital warts. (See The Scope of STDs).
Herpes affects 45 million Americans and causes painful lesions around the penis or vulva, along with flu-like symptoms such as fever and headache. HPV affects another 20 million Americans and is believed to be a leading cause of cervical and vulvar cancer. Both genital herpes and genital warts are incurable.
Luckily, there is hope on the horizon, but it comes from medicine and not the law: At least three companies are working on an HPV vaccine for the prevention of cervical cancer, and at least two herpes drugs, called "microbicides," have advanced to Phase II clinical trials.
Such treatments may one day erase the social stigma of STDs, which lawsuits can only hope to ease.
Ashley (not her real name) was infected with herpes by her estranged husband, a member of a wealthy, socially prominent family. Now she feels like an outcast.
"I look at people differently now than before I was infected," she says. "I used to think, 'There's a nice guy, I'll try to meet him.' Now I remember my disease and feel sick to my stomach. My ability to date has been destroyed. I feel mortified and dirty. I'd rather have cancer. There's no shame in that.''
Scott Winokur often writes about health and medical issues.
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