Supreme Court Rules on HIV Liability

The California Supreme Court on Monday voted 4-3 to require a man to provide to his wife a list of his sexual partners during the six months prior to testing negative for HIV in August 2000, the Los Angeles Daily News reports (Los Angeles Daily News, 7/4).

The case involves a woman who claims her husband tested positive for HIV in October 2000 (Egelko, San Francisco Chronicle, 7/4). He had tested negative in August 2000 in conjunction with a life insurance policy application. The woman alleges that her husband did not tell her until November 2001 that he had had sex with men before they were married in July 2000. The woman tested positive for HIV in October 2000.

Both parties allege that the other exposed him or her to HIV. The woman sued the man, alleging that he had engaged in fraud, acted negligently and inflicted emotional distress.

A trial judge in Los Angeles previously ruled that in pretrial discovery the husband would be required to detail his sexual history over 10 years -- including the name, address and telephone number of each man with whom he had had sex during that time period. A state appeals court subsequently overruled that order and instead stated that the husband should disclose the date of his first sexual encounter with a man, the number of male sex partners he had had prior to meeting the wife and the number of male partners he had had since meeting her (Weinstein, Los Angeles Times, 7/5).

The husband said that such disclosures would violate his privacy rights (Krupnick, Contra Costa Times, 7/4).

The Supreme Court ruling requires the husband to disclose the number and frequency of his sexual encounters with men during the six-month period because it will help establish whether he had reason to know he was HIV-positive (San Francisco Chronicle, 7/4). In its majority ruling, the Supreme Court cited a CDC finding that an HIV-positive person will test positive for the virus within six months of being infected (Los Angeles Times, 7/5).

According to the Sacramento Bee, the court's ruling "rejected as irrelevant" the woman's broader request for details of her husband's sexual history (Cooper, Sacramento Bee, 7/4).

The ruling establishes legal liability for HIV transmission to people with "constructive knowledge" -- people who based on behaviors or other factors had reason to believe that they were HIV positive, even if they had not tested positive for HIV (Elias, AP/San Diego Union-Tribune, 7/4).

In the majority opinion, Justice Marvin Baxter wrote that limiting liability to people who had tested positive for HIV "would have perverse effects on the spread of the virus." He wrote that extending liability "will provide at least a small incentive to others to use proper diagnostic techniques and to alter behavior and procedures so as to limit the likelihood of HIV transmission" (Los Angeles Times, 7/5).

In its majority ruling, the court said that such cases must be evaluated based on the nature of the relationship between the parties involved. The ruling did not define "the existence of a scope of duty" of care between sex partners "whose relationship does not contemplate sexual exclusivity, who have not represented themselves as disease-free or who have not insisted on having sex without condoms" (Sacramento Bee, 7/4).

Chief Justice Ronald George and Justices Ming Chin and Carol Corrigan joined the majority.

Justice Joyce Kennard wrote that the court should not have decided whether the husband had to know he was HIV-positive to be found liable in the action.

Justice Kathryn Mickle Werdegar wrote that the ruling raises the possibility for people to be "drawn into intrusive litigation ... whenever a former partner, or that partner's subsequent partner, contracts a sexually transmitted disease" (San Francisco Chronicle, 7/4).

Justice Carlos Moreno wrote, "This cause of action potentially licenses invasions into the sexual privacy of all sexually active Californians and may even invite abuse of the judicial process" (Los Angeles Times, 7/5).

The case will now return to Los Angeles Superior Court (Cooper, Sacramento Bee, 7/4).

KPCC's "Patt Morrison" on Monday reported on the ruling. The segment includes comments from Matt Krupnick, reporter for the Contra Costa Times (Morrison, "Patt Morrison," KPCC, 7/3).

The complete segment is available online in RealPlayer.