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Can I sue person who gave me herpes, chlamydia, HIV or other STD in Virginia?

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April 5, 2020 by Tom Roberts, Esq.

A: Yes--You may sue the person who failed to disclose known STDs to you when engaging in sexual relations for battery and intentional infliction of emotional distress.

Since 2005, the Virginia Supreme Court stated that engaging in private, consensual sexual intercourse, even if traditionally viewed as immoral, will not serve as a defense to a claim for battery where the sexual partner failed to disclose the known STD.  

 

The rule applied in Zysk was that “a party who consents to and participates in an immoral and illegal act cannot recover damages from other participants for the consequence of that act.” 239 Va. at 34, 404 S.E.2d at 722 (quoting Miller v. Bennett, 190 Va. 162, 164-65, 56 S.E.2d 217, 218 (1949)). We adhere to that rule. However, in light of our determination regarding the constitutionality of Code § 18.2-344, the sexual activity between Martin and Ziherl was not illegal and “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” Lawrence, 539 U.S. at 577. Therefore, Zysk is no longer controlling precedent to the extent that its holding applies to private, consensual sexual intercourse.

Martin v. Ziherl, 269 Va. 35, 43, 607 S.E.2d 367, 371 (2005)

CAUTION: The court dealt with 2 unmarried individuals engaged in consensual intercourse — the case did not address adulterous relations.  The court stated “We adhere to that rule” referring to the rule in Zysk, that “a party who consents to and participates in an immoral and illegal act cannot recover damages from other participants for the consequences of that act.”

The Virginia Supreme Court dealt with a similar issue involving the transmission of the HIV virus. Delk v. Columbia HCA Healthcare Corp., 259 Va. 125, 137, 523 S.E.2d 826 (2000). The Supreme Court noted that HIV, which is transmittable sexually or through an exchange of bodily fluids, can develop into AIDS, a fatal disease. Id. The court opined that a fact-finder could conclude that the defendants acted recklessly and committed IIED if they presented evidence at a trial that the defendants knew she may have been exposed  to HIV, but failed to inform her so that she could have taken preventive action to avoid transmission of the fatal disease to her husband. Id. The court further held that the defendant explicitly alleged that “she has incurred and will incur in the future hospital, doctors’ and related bills in an effort to be cured of injuries. Id. The Virginia Supreme Court found a reasonable inference that the plaintiff incurred previous medical treatment and would incur medical treatment in the future as a result of her exposure to HIV. Id.
Hicks v. Martin, No. CL-20-668, 2020 Va. Cir. LEXIS 207, at *8-9 (Cir. Ct. Nov. 2, 2020)

Shift in Legal Framework - Lawrence v Texas - Law of the Land

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives.  The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Caseysupra, at 847, 120 L Ed 2d 674, 112 S Ct 2791.  The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 2484 (2003)

Another Court's Look at Virginia Law

While the Virginia legislature has never repealed the adultery statute and the Virginia Supreme Court has not explicitly declared it unconstitutional, it does not pose a bar to recovery for Ms. Thong. The defense relies primarily on Zysk v. Zysk, a Virginia case in which a wife sued a husband for allegedly infecting her with herpes during pre-marital  sexual intercourse. Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721, 6 Va. Law Rep. 966 (1990)In that case, the Virginia Supreme Court declared that the basic principle of “no recovery for illegal act” was a bar because the couple was engaged in a criminal act when the alleged injury took place. While the situation is not perfectly analogous (Ms. Thong’s allegedly criminal behavior was not the cause of the injury and it was also with a third party), it is a clear Virginia precedent barring recovery in a case revolving around sexual conduct which, though common, was at the time illegal under the laws of Virginia.

Zysk v. Zysk was, however, overruled in 2005 by the Virginia Supreme Court in the wake of the U.S. Supreme Court’s ruling in Lawrence v. Texas. Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005)While both Zysk and Martin deal explicitly only with Virginia’s fornication statute and not its adultery statute, there is nothing in the Martin opinion which limits itself to the fornication statute.  In ruling the fornication statute unconstitutional, the court in Martin gave as its reason that the provision, “by subjecting certain private sexual conduct between two consenting adults to criminal penalties… infringes on the rights of adults to ‘engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.'” Id at 42, citing Lawrence v. Texas, 539 US 558, 564, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). The court added, “our holding, like that of the Supreme Court in Lawrence, addresses… private, consensual conduct between  adults and the respective statutes’ impact on such conduct.”  Id. at 43.

It is unclear why the defense believes that this holding is at all limited to the fornication statute; even though the ruling did not declare the adultery statute unconstitutional, it does say that “Zysk is no longer controlling precedent to the extent that its holding applies to private, consensual sexual intercourseId. at 43 (emphasis added). While it could not be said that the opinion strikes down the adultery statutes per se, it makes clear that it considers statutes criminalizing private, consensual, sexual intercourse irrelevant for the purposes of civil litigation. Without some precedent other than Zysk to justify the defendants’ position, this Court should follow that lead and ignore the possible adultery implications of Ms. Thong’s relationships for the purpose of determining the legitimacy of her claim.

Thong v. Andre Chreky Salon, 634 F. Supp. 2d 40, 46-47 (D.D.C. 2009)

Other relevant information - Criminal Law

§ 18.2-67.4:1. Infected sexual battery; penalty.
A. Any person who, knowing he is infected with HIV, syphilis, or hepatitis B, has sexual intercourse, cunnilingus, fellatio, anilingus or anal intercourse with the intent to transmit the infection to another person is guilty of a Class 6 felony.
B. Any person who, knowing he is infected with HIV, syphilis, or hepatitis B, has sexual intercourse, cunnilingus, fellatio, anilingus or anal intercourse with another person without having previously disclosed the existence of his infection to the other person is guilty of a Class 1 misdemeanor.
C. “HIV” means the human immunodeficiency virus or any other related virus that causes acquired immunodeficiency syndrome (AIDS).
Nothing in this section shall prevent the prosecution of any other crime against persons under Chapter 4 (§ 18.2-30 et seq.) of this title. Any person charged with a violation of this section alleging he is infected with HIV shall be subject to the testing provisions of § 18.2-62.

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal or medical advice.  You should not act upon the information without seeking the advice of an attorney or a physician.  Nothing herein creates an attorney-client relationship or a doctor-patient relationship.   


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