Compelling Interest To Invade Sexual Intimacy... Or Slippery Slope?

California Supreme Court Sees Need for Disclosure of Sexual History

At first glance, most of will shake our heads in agreement with the California Supreme Court's decision that those with a sexually transmitted disease have an obligation to warn others. It sounds very reasonable. However, we must consider the slippery slope it opens up in the process.

Indeed, the first issue is that it tends to create a situation where sexual acts can become criminal acts. There is a presumption in this decision that everyone infected with an STD is aware of that status. Under this ruling, anyone that has a sexual encounter must now be fully aware of the microscopic health status of their entire body. Indeed, if a cold sore (a type of Herpes virus) is passed along due to kissing, or some other oral act, then the person originally infected can be criminally and civilly liable. Under this ruling, anyone passing along a simple cold, measles, the flu or any other disease that can be passed by intimate contact (kissing, handshaking, sleeping in the same room) can be held responsible. The ruling is overly broad and vague.

The second issue is that this ruling tends to make the sexual act a process of victimization. It tends to take the responsibility for practicing "safer sex" through the use of condoms, dental dams, or even basic hygiene away from both parties in the sexual act and places it almost entirely on the partner that may or may not be aware of their STD status. Given that a vast number of STDs are asymptomatic for a larger portion of the time that the infection occurs, how does one really know their status without constant surveillance of their blood chemistry, immune system status, tissue studies, etc. Since some diseases (syphyllis, gonnorrhea, chlamydia) have an incubation period of 5-28 days, and others (HIV/AIDS, Hepatitis C) have an incubation/presentation period of months to years, how would we hold infected persons responsible for determining their status? Will we now relegate our sexual experiences to a contingency plan based on a full medical workup at least a week before we have the sex?

Indeed, if the slippery slope is followed down one avenue, an unwanted or unplanned pregnancy could be come a prosecutable event. So much for the will or hand of God, the science of reproductive probability, and just being human.

This is not the panacea that those that view the unethical act of knowingly passing along a disease might think it is... it is a reversal of human decency and dignity.

A word of advice to anyone with a sexually transmitted disease: Warn any prospective sex partner or face the consequences.

On Tuesday, in a case that could have major implications for sexual privacy and, in particular, tens of thousands of people with HIV, the California Supreme Court seemed ready to impose liability on those who actually know -- or should have some idea -- that they have a sexually transmitted illness, but fail to tell their sex partner.

"Is it that burdensome of an obligation to warn a partner?" Justice Marvin Baxter asked attorneys arguing the case. "That partner would then have a choice of taking that risk or not taking that risk."

At least three of the seven justices seemed to agree.

The underlying suit was filed in Los Angeles County Superior Court by a woman identified only as Bridget B. against her husband, named only as John B., who she claimed infected her with HIV soon after they married in July 2000.

The facts alleged in the case are odd because Bridget tested HIV positive four months after she discovered by accident that her husband had tested negative. Less than a year later, according to the complaint, John had developed full-blown AIDS and Bridget learned that before and during their marriage he had engaged in unprotected sex with several gay men.

Bridget then concluded that John had infected her. She sued for fraud and negligent infliction of emotional distress, claiming John knew or should have known that he had HIV, and she sought discovery into John's sexual history.

For most of the justices on Tuesday, the question seemed not so much that a warning was due, but at what point John or any other person with a sexually transmitted disease should be required to warn. Should it occur when symptoms manifest, they queried, or go beyond that point?