Court Holds Man Liable for Sexual Disease

The state Supreme Court on Thursday refused to overturn a milestone $150,000 damage award against a Sonoma County man for negligently infecting his girlfriend with a sexual disease.

In a brief order, the justices rejected a challenge to a state Court of Appeal ruling last March holding that persons who knowingly fail to warn their sexual partners they had such a disease may be held liable, even if they believe they are not contagious.

Lawyers in the case said that although previous rulings had opened the way for suits over the negligent transmission of a sexual disease, they believe this is the first actual verdict of its kind to be upheld in the country.

“This sends a strong message that people who have communicable venereal diseases have to be careful and do the right thing when it comes to warning their sexual partners,” said Tad S. Shapiro of Santa Rosa, attorney for a woman who sued a supermarket co-worker for giving her genital herpes.

The high court refused to hear contentions from attorneys for the male defendant in the case that the verdict should be set aside because he was unaware he could transmit the disease because he was suffering no symptoms.

The man also argued that it was a violation of the constitutional right to privacy to be forced in a lawsuit to divulge the details of a sexual relationship.

Shapiro called the implications of the ruling “far-reaching” and said it could be applied in cases involving such diseases as AIDS. But, he cautioned, because it can take several years for AIDS to emerge, it would be difficult to prove how a person was infected.

Elliot L. Bien of San Francisco, attorney for the man in the case, said he would consider an appeal to the U.S. Supreme Court. “We feel it’s very unfair to impose this kind of liability where a patient doesn’t know when a disease is communicable,” he said.

The case arose in 1985 after a woman identified in court documents only as Jane Doe contracted herpes, suffering a 102-degree fever, swollen glands and painful genital lesions. She brought suit against a man identified as Richard Roe, claiming he had given her the disease while failing to disclose he previously had suffered from three outbreaks of herpes between 1978 and 1981.

Roe argued that he believed he could not transmit herpes as long as he was symptom-free, and that he thus had no duty to warn Doe. A Sonoma County trial court disagreed, finding that Roe was negligent in not disclosing the ailment or taking the precaution of using a condom. The court held Roe liable for $150,000 in damages.

An appeals court in San Francisco affirmed the award, saying Roe had shown “total indifference” to the danger of infecting Doe and had “elected to gamble with her health rather than inform her of his condition or educate himself about the disease.”

“It is beyond question that our state’s policy of preventing the spread of venereal disease is great and that the burden of warning a prospective sex partner is small,” Appellate Justice Jerome A. Smith wrote for a unanimous three-member panel.