Legal information if you know or your giver knew....what could happen now?

[SassyNatty82]

Many states have laws protecting individuals against someone who willing knew they were infected with an incurable STD such as HIV/AIDS and HERPES. A partner who knows or should have known that they are infected with a sexually transmitted disease would increasingly be held liable for transmitting the disease to an unknowing partner. This includes herpes, AIDS, gonorrhea, syphilis, genital warts and crabs. Each state has their own guidelines and if you know you have one of these viruses, the main question is...

 

Do I legally have to tell each partner I have intercourse with that I'm infected?

 

Legally, the answer is no. However, subconsciously, for the better part we hope you do in hopes of not spreading the virus. You know you are not to inflict harm onto others as this is considered negligence with intent to harm.

 

What can happen if they get infected and there's proof I knew I was infected?

 

If they were to get the virus, in some states, they can file a non criminal law suit for personal injury with emotional damage and loss of wages due to time off of work or for cost of treatments and prescriptions. You can sue for personal negligence and since this is a life long illness, this may cover therapy as well.

 

In many states, its considered a misdemeanor and may get you jail time, a fine and or both if you do any of the following:

 

¤ Engage in unprotected sexual activity knowing you have an incurable virus.

¤ Engage in unprotected sexual activity with the intention of infecting another person.

¤ Not disclose your STD status.

 

If you have HIV/AIDS, in California, its a felony, and up to 8 years or more in prison for doing the above mentioned acts.

 

Many states have laws to help protect unaware partners.

 

In Maine, there are expedited partner therapy allowing doctors with patients diagnosed with STDs to give the patients' spouses or sexual partners medication to treat the STDs without making a medical examination of the spouses or partners. So, in some states, it's very possible someone will learn of a partner's STD whether or not the infected partner discloses the problem first. This method should be adopted in all states and for fear of disclosure, could help preventing the spreading of more viruses.

 

What happens if I knew I was infected with one of the incurable viruses and gave it to someone and I get sued?

 

If you get sued, and your partner says you willing gave them a virus that was incurable such as HSV2, they need to have proof. Proof would come from medical records from your medical doctor, such as blood test and prescriptions for the infections. Proof of outbreaks. Proof that they knew by telling someone else and they could be a witness. Then they look at the Consensual-Bar, which is a factor when looking at cases of personal injury related to sexually transmitted diseases. This refers to knowing both parties are consenting to sexual intercourse and understand the risk involved whether or not the truth was told or with held or unknown. You made a consensual decision and you made the choice, so basically... If "Billy" had HSV2 and you asked him before you were intimate and he disclosed he didn't have any type of std and was tested and you went ahead and had intercourse, you consented to accept his answer not knowing it to be true or false. You then would be just as equally responsible.

 

There was a recent case where a woman met a man on EHarmony, a dating website. After a few dates, they became intimate. Well a few things happened...

 

She didn't ask him about his sexual history or testing history. They didn't use a condom or other protection. After they were finished, he decided to disclose he had herpes. Mind you, she was furious and thought he was the right man and felt a strong connection. She called her lawyer and her case went to court. Due to his career, he had an oath, a legal oath as a medical doctor, that's right! He was a dentist and he was sued and she was rewarded $900,000 for emotional damages. This shows how important it is to be honest and why disclosing is needed before you become intimate.

 

 

Having an STD and giving it to someone and them suing you knowing you had the virus is considered a personal injury lawsuit and its criminal law. Its not common and not all states have statues or laws set for these types of cases, but as stated above, they use the laws similar to those used for HIV/AIDS cases as its an incurable illness which needs life long treatment. Please keep in mind, many of our "givers" didn't realize or still don't know their even infected with the virus as some don't have symptoms and outbreaks. So keeping that in mind, make sure you know if they genuinely knew their status before hand..As many of you may or may not know, HSV2 is NOT part of the basic sexually transmitted screening rest. If your partner said they were tested, always ask which test they had and make sure you ask about the Herpes blood test. Glyco protein antibody IgG is most used to check for antibodies and very accurate compared to past test and more accurate than cultures. This is a type specific test and should be added to your STD test.

 

To avoid this, disclosing is the best thing to do in order to keep yourself out of trouble. Yet, why would you want to put someone else's life at risk? Disclosing isn't always an easy task and for some it can be the greatest challenge. But on here, Adrial has written a free e-book which is pretty great and I'd suggest you take a peek at it. You might feel a bit better about yourself after you read it. If you still feel a little uneasy, there's nothing wrong with practice. Practice how you'd say it, the approach, questions, answers, materials...be prepared, that's the key. Make yourself aware of your condition. The more knowledgeable you are, the more likely your prospective partner will be willing to take the next step. Its about confidence!

 

 

So please be safe, if your just being diagnosed with HSV2, don't feel like its the end of the world and give up in relationships and dating. Just because you carry apart of this virus doesnt make you the virus. It doesn't take over your whole body, its simply a skin irritation as we like to refer to it as. Right now, you might be thinking, yeah right. It takes time and for some, weeks, months and years to come to terms with their diagnosis. There are others out there who are also carriers and there are people who are understanding as well who will equally accept you for you. Don't cause harm onto others because someone did it ro you. That has happened a lot as I've heard in a local support group. Educate yourself, and educate the people your closest to. Friends, family, and disclose to potential partners. Just avoid giving the gift that keeps giving... Intentionally to avoid the possibility of legal actions.

 

 

I know this post was long, and I apologize. Had a great group of girls yesterday and we talked about this and it was rather interesting to hear their input. I'd love some feed back on your views and if you feel there should be more laws or fines. What would you do in a situation like this? As the receiver, would you sue knowing you can now take such actions to court or vice versa?

 

I have a slightly indifferent view on this, but want to hear your views first.

 

 

 

 

 

 

 

 

 

 

 

 

 

The information above was received from a family friend who is in law and online resources as well. Lawyers.com . I now host a local support group for young ladies who have HSV1/2. And the Creator of BeProactiveHSV. Hoping to educate the public on the importance if testing for HSV, and getting rid of the social stigmas.

 

 

 

 

[Angel]

Hi Sassy, this totally feeds into the question I recently posted http://herpeslife.com/herpes-forum/discussion/560/legal-implications-of-knowingly-passing-genital-herpes#Item_2. I believe in California, it's considered a misdemeanor. I feel more and more empowered to contact a lawyer about this, as I truly think someone who knowingly passes HSV-2 without disclosing should be held responsible.

[SassyNatty82]

I seen your post and i was actually having this talk with the support group we had. Some states have laws, some don't as its not common to see these types of cases being brought up In court. California has the strictest laws for all incurable STD's with Florida filling as well as New York. New York states anyone who has the Herpes virus can not have any contact with another person while having an outbreak.

 

I personally believe if someone has it and willingly gave it to another person, they should be held legally responsible. It has life long effects both emotionally and physically. I hope everything works out for you, bit if you do persue legal advice, its important to have facts before hand. There's a girl here trying to go through this as well. Its not easy since neither can prove who infected who...that's were it becomes an issue.

 

People should have to disclose before any sexual activity and if not, there should be consequences.

[funlovngrl8675]

There are so many things running through my mind right now in response to this post. Before I begin, yes, not disclosing is a shitty thing to do. We all know that. I think that people who don't disclose do have consequences. They lack integrity. They aren't their authentic selves. If they lie about H, chances are excellent that they lie about other things in their lives as well. Life is their consequence. Their lives full of dishonest relationships and sadness because they aren't comfortable enough to live their lives as themselves. Secondly, if we criminalize H transmission, how could that possibly help reduce stigma? If we continue to make a big deal about H, it will remain a big deal. One you strip away stigma, HSV is mostly inconsequential. Sure, it's annoying at times, but the only time it really matters is when it becomes time to disclose. No stigma=no fear. Another thing running through my mind, is this - with no precautions being taken transmission rates sit at 4%. Can you imagine how hard it would be to purposely infect someone with HSV? And there's no way to prove beyond a doubt where you got it from. Sure, in that one case it could have been the doctor/dentist guy that have her H, but how does she know without a doubt that she didn't get it from Joe Schmoe the night before? Unless she has a herpes screen after every person she's with, there's no way to know for certain and I'm not sure that even constant blood testing would catch it. The courts have no place in this matter. None. I truly think I understand what Adrial means about this being an opportunity. Yea, it might sound a little hokey, and I would never say I love having herpes, but the life lessons that have come along with the virus are invaluable.

[SassyNatty82]

That's exactly what I was on about on my views... The stigma. Were trying to reduce the stigma. And that's why I don't blame my ex as he says he didn't know and although I don't believe him, it is what it is. I have this and I'm going to make the best of it. And unfortunately, what we all thought was crazy is she won all this money in court by sleeping with this dentist, and your right, she could have had it from another guy before. Its not like everyone gets tested after each partner. I feel its your own responsibility to protect yourself. That's why they have the consentsual bar, knowing there is a risk but your still consenting to the fact there could be a risk or there may not be one.

 

This is what we are trying to get out in the open and create awareness. Get tested, ask for the right test, test after partners and if you do have it, educate yourself and disclose to future partners. By no disclosing and passing it on from one partner to another, people call it the gift that keeps giving. Not the kind of gift I'd normally ask for. And because so many people don't take responsibilities for their own actions and get tested, many woman and men come up with ways to get back at the so called giver such as the woman who sued the dentist. Therefore creating more social media and creating negative stigma making the herpes virus seems more so like a plaque that's never going to go away and its the worst thing to have. Granted, we have it, but there are things worse we could have and to be honest, I'd rather deal with a minor skin irritation when it happens than anything else such as the HIV virus or even HPV. I completely agree with you @funlovngrl8675.

 

Personally, if someone has the virus or any incurable virus, they should be counseled on it to know all risk, management, treatments, outcomes and other precautions. When I was diagnosed, my doctor offered me counseling. He wanted to ensure I was educated and all my questions were answered. I felt so relieved and that is when I realized, the HSV2 was not as bad as the media mad it out to be! Its all negative because its a sexual transmitted virus.

[Angel]

I agree, I feel bad that suing someone over it will just make the stigma worse, which is of course not what I want to achieve. I thought about the aspect of it a lot...

However, in my particular case, there is no doubt that I got it from him. I did a herpes blood test just before I met him, which was negative. Before that I was only with my boyfriend at that time, who is negative (just recently tested). After my giver, I was with several other people, and asked them all to get blood tested and they are all negative. I am particularly upset because I specifically asked my giver several times, if he had anything to disclose in terms of STDs. I am also upset because he didn't only lie to me but as it turns out also to other women in my circle of friends (and he may just continue with his behavior in the future if nobody stops him). I think what he does is criminal, and that he shouldn't just get away with it. Just as a comparison, let's assume he was violent and had broken my arm instead of giving me herpes, would I be more or less upset? Probably less, because a broken arm isn't permanent, but the herpes is. Would it have legal consequences if he broke my arm, yes, it would!

[SassyNatty82]

@Angel my question is, being that many STD test don't test for herpes, what if he did have a test and was being honest saying he didn't have any knowledge of having it? He might not have known you need to ask for it. May want to take that into consideration, but I see your point, but these other woman in your circle of friends... The way its worded and all .. has he slept with them and are they also infected?

[Angel]

I talked to close friends who said that he disclosed to his partners in the past that he knew he was both HSV-1 and 2 positive and that he knew he had genital herpes. There is no doubt that he knew. Just at some point he decided to not disclose it anymore...

[Angel]

My close girlfriend told me about another occasion where he slept with somebody and did not disclose, not sure if this person got infected. He started dating two women right after me that I personally know, and to my knowledge he is still with both of them. I do not know if they got infected, what exactly he told them and if they are using precautions now. I had a brief conversation with one of them (before I knew that he was aware of his infection for a long time), and she made it sound as if he told her the same story and he made me believe, that he wasn't aware of the infection until I asked him to get tested again. This is all totally bizarre. He's not a random guy I picked up at a bar. He is a computer engineer with a high level of education and a great job. We have a lot of mutual friends, so, unfortunately, I run into him all the time.

[forgivenessandpeace]

Can you imagine how hard it would be to purposely infect someone with HSV?

 

It's not that hard: you just have sex with an active blister. That's how I got it. He came clean about it months later.

[WCSDancer2010]

Personally, if someone has the virus or any incurable virus, they should be counseled on it to know all risk, management, treatments, outcomes and other precautions.

 

I think this is one of the answers... to require the doctors to have someone counsel the person about the virus AND have them sign something that states that they have been properly informed.

 

I am not really in favor of the concept of suing over this simply because, as mentioned above, it adds to the stigma .... personally I would rather have a very heavily funded campaign to educate people about STD's and the need to be tested regularly AND to SEE the other person's results before you are intimate ... knowing that it could take several months to show up as well ... so that we each take total, personal responsibility for our sexual health. Would it stop Herpes in it's tracks? Not completely ... many people would have sex anyway and there would be those that sleep around with multiple partners and thus couldn't have a 100% accurate test at any time, but I bet that most people who really are looking for a monogamous relationship would re-think their dating habits and that the rate of transmission in that group would drop dramatically :/

 

Would it stop those who willingly infect someone else. No. BUT, the other person would know that if they took the person's word that they are STD-free, that they are taking a risk that could be lessened by physically going with that person to a clinic to be tested together.

[ivoryrain]

I don't know how I feel about lawsuits. In some states, not disclosing/lying about STD status can even make it rape because you're consenting to sex with someone you believe is STD free. In states that only protect against HIV/AIDS, it can be charged as assault.

 

Personally, if I had proof that my giver knew and lied (I've always asked), I think my knee jerk reaction would be that I would want some sort of justice through criminal and/or civil proceedings. In the same sense, that all can turn very public, and people I know may stigmatize me one way or another, whether it be repulsion or uncomfortableness about me using their bath towels. Plus, it stigmatizes it as some terrible disease that you should sue over if someone knowingly gives it to you, which it's really not THAT bad...more of an inconvenience and a little bit of uncomfortableness

[CityofAngels]

If it were me, I would sue and press charges. I would feel that a serious injustice was committed that demanded legal action. Proving that you contracted herpes from one specific person is notoriously difficult in a court of law, because the defense can always argue that another partner gave it to you, unbeknownst to you. But I keep all my medical records in order and my STD records are constantly updated when I'm considering becoming intimate with someone new. Also, to me a civil suit reflects the gravity of what happened, and someone who contracted herpes from a partner who they can prove knowingly lied to them, can win 7-figure verdicts in a court of law. Moreover, in civil suits the burden of proof is lower. In criminal cases, you have to prove guilt beyond a reasonable doubt. In civil cases, a preponderance of the evidence has to suggest culpability. That means that one only has to prove that it is more likely than not that one contracted herpes from the person in question.

[seeker]

all these laws were written for serial"givers" people who just don't give a damn also for sex workers who can spread them far and wide quickly. it is however very, very hard to prove when and who and motive. and not to be insensitive, you know I have herpes myself, id rather the law deal with murders and rapists than someone who has herpes and gave it to someone else. now, that being said, someone purposefully going around trying to give it to people, different story.

[willow]

I love this post! I belive in honesty. But i also agree with @inka.. it takes 2 to tango..

ive seen a few people post how they have wanted to sue someone when they found out.. so i know this post will help

In all honesty i thought it was only law to tell someone if you had hiv or aids.. didnt know there was laws for othe sti/and std.

 

Thank you for sharing the legal stuff on the matter!

[WCSDancer2010]

The problem with trying to make a lawsuit is

 

1) Most people likely have never had a Herpes test before they are diagnosed (even if they *thought* they had been tested ... if they didn't ask for it, odds are they didn't get it). So you would have to prove that you were recently exposed. Yes, it can be argued that if your swab is H+ and your blood is H- that you likely have been recently exposed, but the conflicting data would create havoc in a court of law :(

 

2) You would have to prove that the person had in fact been tested and knew their status. AND that they had been properly counseled. We have DOCTORS telling people they don't need to disclose if they are not having an OB.

 

3) You would have to be strong enough to be (brutally) grilled by the defense about your previous sex life. If you have had any number of partners, that will be brought up and used against you. It will be *your word against theirs* about whether they told you or not. The onus of proof of EVERYTHING will be on you.

 

So, unless you can get a number of people who have been given H to come forward together to say that they got H from the defendant and told the person that they got it and they needed to be tested and had not been told themselves of the person's status, odds are that you are going to come out of it 10x worse emotionally because you will have to keep defending YOUR past sexual behaviors.... AND it may be leaked to the press or whatever then all your friends will know. So you have to be pretty emotionally strong to take this to court.

 

AND

 

as I said, I feel that it really feeds into the stigma. *If* the person who gave it to you is a true sociopath who is infecting as many people as possible, it may be worth it. If the person was a scared individual who had bought into the stigma and *hoped* that they would be lucky and you wouldn't get it, well, that would be a tougher sell for a judge :(

[ivoryrain]

As someone who has gone through both criminal and civil proceedings for sexual assault, I would not recommend any litigation without solid proof that the giver knowingly gave it to you (i.e. some sort of admission from giver in text or with witnesses, medical records, etc). Even then it would be a he-said, she-said sort of case. It would very much be like a sexual assault case where the victim is put on trial, and it is so very brutal and can be very public. To me, it's not worth having the public potentially know every detail of my intimate life - anyone can request court records, which have all of your information unless you're a minor or sexual assault victim (some jurisdictions may treat a case like this with the same guidelines as sexual assault and redact the plaintiff's name).

 

Many of us with H already suffer some sort of psychological harm as a result of how it makes us feel about ourselves at first. Why take the risk of making it worse? These kinds of cases are very difficult to prove, and even with solid evidence and what seems like a sure win, juries do weird things. As someone studying criminology, I know how selfomly adequate justice is served.