US: Californian civil liability case begins

This week, a trial in a Los Angeles County courtroom is pitting Bridget B. against her former husband, John B. The couple, whose full names aren’t being made public, are battling each other over whether he gave her a potentially deadly disease — HIV.

Not only is it a heartbreaking case, but it poses questions that could affect the way you approach your sex life: Are you liable if you pass a sexually transmitted disease to a lover? What if you did not know you were infected? What if you didn’t know for sure, but your actions with other people put you at risk for being infected?

It is well-established law that a person who knows he or she has an infectious disease and deliberately or recklessly infects another is civilly, and sometimes criminally, liable.

But a recent spate of cases is calling into question whether plaintiffs are liable even if they say they didn’t know about their STD status.

Ten years ago, the Maine Supreme Judicial Court ruled that a wife who sued her philandering husband for giving her HPV, the human papillomavirus, was not entitled to a judgment largely because he had no physical symptoms of HPV infection, had no medical diagnosis of HPV infection and could not have known he was infected — if he ever was.

Proof is hard to come by for HPV infection because though some strains can cause cancer and warts, more often there are no symptoms. The virus is typically cleared by the body without the infected person knowing he or she ever had it. Plus, most sexually active adults are exposed to it at some point in their lives.

But in a civil lawsuit, the level of proof is lower than it is in a criminal case. Rather than “beyond a reasonable doubt,” it is “preponderance of the evidence.”

Now fast forward to August, when a jury in Iowa awarded $1.5 million to young woman after she claimed that her boyfriend, a dentist, had infected her with HPV even though her lawyer agrees that it is “virtually impossible” to definitively prove it.

Given that, denying you have had an STD, or even that you have one now, is a minefield, says Jeff Tronvold, the Cedar Rapids attorney who represented the young woman in Iowa.

“If 75 percent of people are exposed to HPV, then everybody should know they had it at one point,” he says. If you deny it to a partner, “you have already met, in my opinion, the civil burden [of proof] because you just lied. You should say, ‘I have no signs, but I cannot tell you I never had it.’ This could change the way we all date.”

A few days before the Iowa verdict came in, the wife of a New York investment banker filed a lawsuit against her husband for a reported $25 million, accusing him of giving her HPV and arguing that he contracted it from prostitutes on business trips. Back in Iowa, Tronvold says he’s been contacted by two more potential plaintiffs who think lovers infected them with an STD.

Who infected whom?
Serious as HPV can be, none of those cases are as heartbreaking as Bridget B.’s.

“Both of them were very successful businesspeople,” explains one of Bridget’s lawyers, Kathleen Grassini. “They met at a convention for [MBA holders] in 1998 and he swept her off her feet.” As their relationship deepened, Grassini alleges, John asked Bridget to stop insisting on condoms during sex, arguing that he was healthy and monogamous. She agreed.

They were engaged on New Year’s Eve, 1999, and had a “blowout” wedding the following summer.

On the honeymoon, Bridget didn’t feel well, and neither did John. After returning, Bridget, who had moved to Los Angeles to be with John, went to her new husband’s doctor. The doctor diagnosed HIV infection and told Bridget that she had brought the virus into the marriage. John was tested and he turned up positive, too. Both now have AIDS.

Bridget was crushed with guilt. Suddenly both her new marriage — and her life — were in danger. “She thought, here is my straight husband and I love him. He could not have done this,” Grassini says. John also told other people that Bridget had given him HIV.

Then Bridget found some e-mails. According to court papers filed in the case, Bridget “learned that before and during their marriage defendant engaged in promiscuous, unprotected homosexual sex and solicited homosexual sex over the Internet.” They were divorced not long after that and Bridget sued, asking for monetary damages.

John still insists that she gave him AIDS, not the other way around.

The case has resembled trench warfare, but it has already established new law. Bridget’s lawyers may not be able to definitively prove that John knew he was infected with HIV (though there are suspicions he did know) but rulings so far in the case have changed California law to say that you are not only liable if you know for a fact you have an STD and transmit it to another person, you may also be liable if you “reasonably should have known.”

That’s the main question the trial is exploring.

In the Iowa case, Tronvold convinced a jury that the dentist led a promiscuous sex life, was having sex with at least one other woman at the same time and that his client’s cervical lesions (created by HPV) occurred only after the start of their relationship. The jury felt the preponderance of the evidence was enough.

Brian Alexander is the author of the new book “America Unzipped: In Search of Sex and Satisfaction.”