You can sue someone for giving you herpes. The legal mechanism for this would be to bring a personal injury lawsuit.
All of these lawsuits would seek financial compensation to cover the losses associated with your disease such as medical bills, lost wages and pain and suffering. A lawsuit can also hold the person who infected you accountable for their actions.
Can I sue for contracting herpes during consensual sex?
Yes, you can file a personal injury lawsuit against someone who infected you with herpes even if the sex was consensual. The lawsuit would claim that the transmitter was negligent because they:
- had herpes,
- did not disclose their condition to you,
- did nothing to prevent its transmission, and
- could reasonably foresee the harm that it could cause.1
A sexual partner can be held liable even if they do not think they are contagious.2 They do not even need actual knowledge that they are infected. If they reasonably should have known that they had herpes, they can be liable for transmitting it.3
Example: Paul has unprotected intercourse with numerous people. He develops the symptoms of herpes, but does not see a doctor or get a diagnosis. He then has unprotected intercourse with Kathy and she gets herpes.
If your transmitter knew they were infected but lied about it to you, not only do they face civil lawsuits, but also they could face criminal liability for willful exposure to an STD. They could be fined and go to jail.
What if the sex was not consensual?
If you got herpes during nonconsensual sex, you can sue for civil battery.
To hold someone liable for battery after transmitting herpes, you have to show that:
- the defendant touched you with the intent to harm,
- you did not consent to the contact, and
- you were harmed by the defendant’s conduct.4
These defendants can also face criminal charges not only for willful exposure but also for sexual assault/rape.
Can spouses be liable?
Your spouse can be held liable for infecting you with herpes. Spouses are not immune from liability for transmitting an STD.5
What compensation can I recover?
If successful, a lawsuit can recover compensation for your losses, such as:
- medical bills,
- anticipated future medical expenses,
- any wages lost from your recovery,
- physical pain from the condition,
- mental suffering and emotional distress from having herpes,
- embarrassment, and
- damage to your reputation.
You can also recover other out-of-pocket expenses if they stem from the transmission.
Where would that compensation come from?
In most cases, the transmitter would be held personally liable. This means they would pay the compensation out of their own pocket.
Note that you are unlikely to recover full compensation. Most people who transmit herpes cannot afford the costs of a court judgment.
In some cases, though, the transmitter’s homeowner’s insurance will provide coverage if their policy has broad liability provisions. These are meant to cover damages that are accidentally inflicted by the policyholder. They could extend to the transmission of an STD, including herpes.
Transmitting herpes can be a criminal offense.
Is it a crime?
Intentionally transmitting an STD is a crime in many states. Furthermore, a conviction for one of these offenses can be used as evidence in your personal injury case.
In California, Health and Safety Code 120290 HS makes it illegal to transmit infectious diseases such as:
- HIV,
- AIDS,
- chlamydia, or
- herpes.
For a prosecutor to convict you of violating HS 120290, they must prove beyond a reasonable doubt these elements of the crime:
- you knew that you, or a third party, had an infectious or communicable disease,
- you acted with the intent to transmit, or cause a third party to transmit, that disease to another person,
- you engaged in “conduct that posed a substantial risk of transmission” to another person, and
- you transmitted (either by your own actions or those of a third party) the disease to the other person.
Violations are misdemeanors carrying up to:
- 6 months in jail, and/or
- $1,000 in fines.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Revisiting the criminal law on the transmission of disease – Pioneering Health Care Law.
- Liability for the Transmission of Aids and Herpes – Annual Survey of American Law.
- Kiss and Tell: Making the Case for the Torious Transmission of Herpes and Human Papillomavirus – Missouri Law Review.
- Liability in Tort for the Sexual Transmission of Disease Genital Herpes and the Law – Cornell Law Review.
- Herpes Breeds New Legal Epidemic: Fraud and Negligence Suits – Family Advocacy.
Legal References:
- Doe v. Roe, 218 Cal.App.3d 1538 (1990).
- Doe v. Roe, Supra.
- John B. v. Superior Court, 137 P.3d 153 (2006).
- See California Civil Jury Instructions (CACI) 1300.
- John B. v. Superior Court, Supra.
