AIDS Suits Stir Legal Debate Over Court Action

In Minnesota recently, a woman filed a lawsuit against a man who, she contends, did not tell her that he had AIDS before they had sex. It will be a difficult case to prove: They slept together in a hospital where the man was receiving treatment for the disease.

And a New York court last year dismissed a suit filed by a woman who accused her husband of increasing her risk of getting AIDS because he had a homosexual relationship. The court ruled that since neither of them actually contracted the disease, there was no basis for her lawsuit. The couple got divorced.

The lurid content of the cases has masked a problem faced by many people outside the courtroom. Increasingly, courts throughout the country are being asked to make judgments in cases involving the sexual transmission of AIDS. Legal experts are debating whether a courtroom is the best place to make judgments about personal decisions reached in the bedroom.

“I have a problem with these types of cases because they discourage people from taking steps to protect themselves,” said Ben Schatz, an attorney with National Gay Rights Advocates in San Francisco. “We’re trying to move people away from the notion that as long as they know that they haven’t tested positive (for the AIDS virus), they can act in an irresponsible way. The real question is, do you want to put your life on the line because of promises whispered in the dark?”

Rock Hudson Case

In Los Angeles, a jury is being asked to make that decision in a case that, until now, has focused on the sensational details of Rock Hudson’s love life. Hudson’s former lover is suing the late actor’s estate, claiming that he suffered extreme emotional distress because Hudson and others allegedly concealed the actor’s illness from him.

In a similar case earlier this month, a Nevada District Court jury awarded a woman $2.2 million from the estate of her ex-husband because he infected her with the AIDS virus without telling her before he died from the disease.

What makes the Hudson case unique is that his lover, Marc Christian, says they engaged in frequent, high-risk sex for eight months after Hudson was diagnosed as having the disease. Yet he has continued to test negative for the AIDS virus. Personal injury lawyers are anxiously awaiting the outcome of the trial, noting that if Christian wins, it could prompt a wave of lawsuits from others involved in relationships with AIDS sufferers.

Although lawsuits over sexually transmitted diseases date back several decades, in recent years, there has been a marked increase in the number of cases. Lane Porter, a private attorney who is compiling data on AIDS lawsuits for the U.S. Department of Health and Human Services, said there may be more than 1,000 cases on file involving job discrimination, testing and disease transmission.

A Dangerous Signal

Christian’s lawsuit has generated criticism from lawyers, gay activists and counselors of people with AIDS, who say that the case sends a dangerous signal to the gay community. Rather than taking steps to stop the spread of the disease through safe sex practices, they contend that the suit showcases an example where an individual refused to take responsibility for his own actions and then painted himself as a victim.

Neither Christian nor his lawyer would discuss the case.

Lawyers and acquired immune deficiency syndrome patients alike insist that anyone with the disease has a moral duty to tell a potential sex partner. What remains unclear is if they also have a legal responsibility.

Los Angeles attorney Robert S. Schlifkin said that there are existing laws in California and other states that allow people to recover damages for the spread of communicable diseases. But, he adds, the laws remain largely untested.

“There are laws that are specific to AIDS, but they don’t deal with the liability of passing AIDS from one person to another,” he said. “If you know you have AIDS and you know that it’s communicable and yet you have intercourse with someone and don’t warn them and don’t take any precautions, then (the partner) could definitely bring action and recover damages if they contracted it. The more difficult question is whether an individual in a high-risk category has a duty to be tested.”

Questions Raised

However, Scott Barry, one of the founders of Being Alive, a Los Angeles support group for people who have been exposed to the AIDS virus, questions whether those cases ought to be pursued in court. He said that any two people who engage in sex have to be aware of the risk and take adequate precautions to protect themselves.

“People can charge that this person infected me with a virus, but they were just as responsible for getting involved,” said Barry, who has AIDS.

“If one person is not willing, it’s different,” he said. “I think it’s a moral responsibility to tell someone if you’ve tested positive for the (AIDS) virus if you intend to engage in sex. But at the same time, people know that this virus is out there, and the ways of transmission are very clearly defined, and you just need to protect yourself.

“I wouldn’t want to have it on my conscience that I infected somebody else. It was very difficult to tell my lover after I tested positive. It was extremely emotional. But it was the right thing to do.”

In a highly publicized 1984 case, the California Supreme Court upheld a settlement for a woman who got herpes from a man she claimed intentionally hid the fact that he had the disease.

Christian’s $14-million suit against Hudson’s estate is nearly identical, but because he does not have the disease, attorneys say his case will be extremely difficult to win.

‘Who Are You Going to Sue?’

“Not only do you have to question whether these suits should be considered at all, but you have to wonder whether the legal system is equipped to deal with the issue,” said Gary Wood, an attorney with AIDS Legal Consultants in San Francisco. “What do lawyers and judges and juries really know about this?

“Because AIDS education has been so successful, gay men have learned it takes two to tango, and they should be engaging only in safe sex. I mean, who are you going to sue if you’ve slept with 200 people in the last year?”

Dr. Griffith D. Thomas, who is also a lawyer in Los Angeles, said he has received numerous calls from people shortly after they have tested positive for the AIDS virus. He said in almost each case, the callers are angry and say they are seeking advice on the possibility of legal action.

“These are tragic cases, but they are extremely difficult to prove,” he said. “People get angry, but oftentimes, they don’t realize that courts don’t compensate hurt feelings.”

Still, many lawyers involved in AIDS issues believe that the number of lawsuits focusing on the transmission of the disease will continue to rise. Reno attorney Jonathan King, who won the recent Nevada case, said that while the circumstances in AIDS cases may be lurid, they should not be treated any differently than a typical negligence case.

Bisexual Life Style

“It’s a gut-wrenching kind of case, but we treated it no different than any other,” King said. “You’re going to see more of these cases, but who is suing who is going to be interesting. The problem with some of the homosexual cases is that the plaintiff may be just as negligent as the defendant.”

King said that the unidentified woman’s husband was bisexual and had engaged in frequent encounters with men and women prostitutes during his marriage. King told the jury that the husband had a moral and legal duty to refrain from sexual intercourse with his wife because of his high-risk encounters.

Thomas J. Coleman Jr., director of legal services at the Los Angeles Gay and Lesbian Community Services Center, said the case points to a longtime debate in the gay community over whether it is better or worse to remain in the closet.

“When you hide, you just create more problems,” he said. “I could see before where there would be a dilemma about how you deal with the sex questions, but now with all the literature on safe sex, AIDS education and testing, you have to wonder about some of these people. Personally, when I got tested, I felt relieved.”

‘Symptomatic of Misdirection’

Schatz of the gay advocates group said the Hudson case in particular could be perceived by some as an example where a person acted recklessly and walked away mostly unscathed.

“These cases are symptomatic of our misdirection,” he said. “They focus on the blame instead of on individual responsibility. Everybody needs to protect themselves. The real culprits are those who put themselves at risk of exposure.”