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You can sue someone for giving you herpes. The legal mechanism for this would be to bring a personal injury lawsuit. If the transmission came from nonconsensual sex, it can be a civil battery. It can be a negligence claim if the infected person lied about having an STD or should have known about the infection but did not use due care to avoid transmitting it.
All of these lawsuits would seek financial compensation. The compensation would be to cover the losses associated with the victim’s disease such as medical bills, lost wages and pain and suffering. A lawsuit can also hold the person who infected you accountable for his or her 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. You can sue even if the sex was consensual. The lawsuit would claim that the transmitter was negligent. He or she could have prevented the transmission of their herpes, but failed to do so.
You can hold someone liable for giving you herpes if you can show that he or she:
- 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 He or she does not even need actual knowledge that they are infected. They do not need to know they are carrying herpes. 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.
This applies to transmitters who know they are infected but lie about it. These transmitters may also face criminal liability. They could be charged with the crime of willful exposure to an STD. They could be fined and go to jail, in addition to getting sued by the victim they exposed.
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. They can be accused of willful exposure. They can also face charges for the nonconsensual sex. They can be accused of:
- sexual assault, or
- rape.
Can spouses be liable?
A spouse can be held liable for infecting his or her spouse with herpes.
Spouses are not immune from liability for transmitting an STD.5
What compensation can I recover?
If successful, the lawsuit can recover compensation for your losses. This includes:
- 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 losses, 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. Victims in these cases 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. Some homeowner’s insurance policies have 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.
Is it a crime?
Intentionally transmitting an STD is a crime in many states. A conviction for one of these offenses can be used as evidence in a personal injury case.
California is a state that makes intentionally transmitting an STD a crime. California Health and Safety Code 120290 HS makes it illegal to transmit infectious diseases. This includes STDs like:
- HIV,
- AIDS,
- chlamydia, or
- herpes.
Violations are misdemeanors. They come with up to:
- 6 months in jail, and/or
- $1,000 in fines.
Victims can use a criminal conviction as evidence in their personal injury lawsuit. The conviction proves that the defendant willfully transmitted herpes. This can be used to support a civil lawsuit.
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.
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.