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HIV and full disclosure

July 07, 2006

SINCE THE FIRST SUCH CASE found its way into court more than two decades ago, only people who knew they had HIV and didn't inform their partners could be held liable by the people they infected. This week, the California Supreme Court rightly decided that wasn't harsh enough.

The court ruled 4 to 3 that even people who don't know they have the virus that causes AIDS -- but who lead high-risk lifestyles -- are responsible for telling partners about possible exposure.

The ruling, which extends to other sexually transmitted diseases such as syphilis and hepatitis, involved a woman who claimed that she and her husband began having unprotected sex only after he insisted he was monogamous and disease-free. Two years later, she became ill and discovered she was HIV positive. Her husband also tested positive and then admitted having had unprotected sex with men before they married. So she sued him.

Writing for the majority, Justice Marvin Baxter said that being "stricken with disease through another's negligence is ... no different from being struck with an automobile through another's negligence." Essentially, the court decided the plaintiff's husband willingly concealed the risks he posed to his wife. Considering the facts, that's a fair conclusion.

As groundbreaking as this case may be, it's hard to know how big an effect it will have. Trials involving AIDS and other sexually transmitted diseases aren't common. One study found 316 prosecutions between 1986 and 2001 -- a fraction of other sex-related crimes. Plus, the court didn't rule on the case itself, only on whether and how much of the husband's sexual history was admissible.

Now, according to the court's decision, defendants in HIV-transmission cases must disclose in pretrial proceedings sexual activity up to six months before the first sexual encounter with a plaintiff. But accusers must prove the infected should have known they were at risk; legally, that's a high bar to cross.

With this decision, California's civil statute on this issue now makes more sense than its criminal code. Unlike most other states, transmitting a disease in California is a crime only if someone knowingly passes along the virus "with the specific intent" of infecting a partner. That's so hard to prove that the law has reportedly brought only two convictions.

The California Supreme Court made the right decision in expanding the definition of liability in civil court for those who put others at unnecessary risk of contracting HIV. Hopefully, this will entice the state to update its outdated criminal penalties as well.

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