A governing legal principle in our society is that we have a duty to avoid causing an unreasonable risk of harm to others. In plain English this means “don’t do something which you know will hurt someone.”  In most states this duty includes sexual partners.  A partner who knows or should have known that they are infected with a sexually transmitted disease is increasingly being held liable for transmitting their disease to an unknowing partner.  This includes herpes, AIDS, gonorrhea, syphilis, genital warts and crabs.

In the latest figures from the federal Centers for Disease Control, over 1.1 million people in the US are HIV positive and over 19 million people in the US per year are infected with a sexually transmitted disease (STD).  Because HIV and STDs are mainly spread through sexual activity every new infection is usually preventable through personal choices.   Because the spread is preventable many states have passed laws requiring persons who are HIV positive or have an STD to either refrain from sex or to inform their partners about their positive status.

The states differ though in what must be shown to impose liability.  Some states only require negligence by a defendant who is positive.  To show negligence the plaintiff does not have to prove that the defendant knew they were positive.  The plaintiff usually must only have to prove that the defendant is HIV positive or has an STD and engaged in activities that enhanced the likelihood they would contract the disease, such as promiscuous sex or drug use.

Other states require the plaintiff prove that the defendant intentionally exposed them to the disease.  In those states the plaintiff usually must show that the defendant knew or should have known they were positive and did not inform the plaintiff before having sex.   In these states the plaintiff usually must show that the defendant either had a positive test or an outbreak of symptoms.  Usage of a condom may also be a determining factor in these cases.

The fault of the victim by having consensual sex has also largely been removed as a barrier to bringing a case.  In some cases defendants tried to show that the plaintiff could not sue because they acquired the disease through criminal activity; having premarital or extramarital sex was still on the books in many states, though rarely enforced.  This tactic by the defense ended after the Supreme Court decision in Lawrence v. Texas struck down any law criminalizing consensual sex between adults.

Besides violating a specific statute if one exists the courts have also held that if a person with an STD or HIV has sex without informing their partner they have engaged in fraud and battery.  In a civil suit brought against the federal government a federal court ruled that sex between the defendant, a person with an STD, and the plaintiff, who did not know of the defendant’s positive status, could not be deemed consensual sex because the plaintiff would never have had sexual contact with the defendant if the plaintiff had known of the defendant’s condition.

The court cases are not limited to sexual activity though. In a case involving a wrestler who had herpes sores on his skin the New York Court of Appeals ruled that persons infected with herpes must avoid skin to skin contact with anyone, not just sexual partners, when they have an outbreak.

Though most states do allow a person who contracted an STD to bring a court action there is no nationwide rule about sexually transmitted diseases.  Many states have criminal statutes specifically covering the negligent or intentional transmission of HIV, but only a few states have statutes specifically listing STDs.  Thus, a lawsuit brought because of herpes, chlamydia, syphilis or gonorrhea is typically brought as a personal injury action.

A victim who has contracted a venereal disease should consult an attorney.  Damages are available in most states but these cases may be hard to prove.  A case involving a sexually transmitted disease is not as simplified as a car accident or if A punches B.  In those circumstances the parties know when and where the injury occurred and who caused it.