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State high court expands legal responsibility for HIV infection

PAUL ELIAS
Associated Press

A divided California Supreme Court ruled Monday that people who lead high-risk sexual lifestyles have good reason to know they may be infected with the virus that causes AIDS and are responsible for informing partners about possible exposure.

The 4-3 ruling in a case where a woman accused her ex-husband of giving her HIV on their honeymoon is the state Supreme Court's first involving allegations of negligent HIV infection. It makes those with "constructive knowledge" — people who should have known by their behavior and other signs they were infected but perhaps didn't — legally liable for infecting others.

A federal court in Michigan is the only other jurisdiction to rule similarly in a 1993 case involving former NBA star Earvin "Magic" Johnson, who tested positive for HIV in 1991.

Justice Marvin Baxter, writing for the four judges that formed the court's majority, said that "society has an overriding policy of preventing the spread of sexually transmitted diseases, especially HIV, which would be enhanced by imposing a duty of care on those who have reason to know they are infected with HIV."

Baxter also wrote that "negligent transmission of HIV does not depend solely on actual knowledge of HIV infection and would extend at least to those situations where the actor, under the totality of the circumstances, has reason to know of the infection."

Three of the court's seven judges each wrote separate dissents, including Justices Kathryn Mickle Werdegar and Carlos Moreno, who said it was unfair to punish those who "had reason to know" they had HIV but didn't know for sure.

"I agree that a defendant who knows that he or she is infected with HIV and conceals that fact from a partner with whom the defendant has unprotected sex may be held liable for negligently transmitting the virus," Moreno wrote.

Moreno said he feared that such a ruling will dissuade people from taking HIV tests and also foster meritless lawsuits.

"One can easily foresee a spate of 'shakedown' or vengeance lawsuits brought by plaintiffs whose motivation is not so much to discover how they contracted HIV as to force lucrative settlements or embarrass a former sexual partner by exposing that persons sexual history in the guise of obtaining relevant discovery," Moreno wrote.

In her dissent, Justice Joyce Kennard said the court didn't need to determine whether actual knowledge of infection was required to satisfy the ex-wife's demands for the ex-husband's sexual history.

The 4-year-old case was closely watched because the emotional distress and fraud lawsuit filed by the woman identified only as Bridget B. exposed a whole raft of legal issues dealing with privacy rights versus how much information about a partner's sexual past is legally required to be disclosed.

"This is an unusual ruling and it's hard to know right now how it will play out," said University of Richmond law school professor Carl Tobias. "It could open a Pandora's box."

The court's ruling didn't give Bridget B. much of a boost with her case. That's because the Supreme Court said she was entitled to her ex-husband's sexual history and medical records dating back only six months from a negative HIV test he took on Aug. 17, 2000, as part of purchasing a life insurance policy. It can take up to six months for signs of HIV to appear in an infected person's blood.

"There is bound to be confusion and uncertainty as people go about their social lives and what people have to disclose," said Eric Multhaup, the lawyer representing the ex-husband identified in court papers as John B.

Bridget B. had demanded to know the names and addresses of all John B.'s homosexual partners in the 10 years preceding their wedding in July 2000. The court ruled that if she can show that the test John B. took was faulty or unreliable, she could ask for a more detailed sexual history.

Her attorney didn't return a telephone call Monday.

Bridget and John met in 1998, married in 2000 and last had had intercourse during their honeymoon in July 2000. During that time John told her that he was monogamous, healthy and disease-free and insisted on having unprotected sex.

In September 2000 she started suffering from exhaustion and fevers and tested positive for HIV the next month. John was tested positive shortly after and his doctor told Bridget that she had "brought the HIV into the marriage."

But according to court documents, Bridget learned in November 2001 that she had an extremely low probability of bringing AIDS into the marriage. The next month, John told Bridget for the first time that he previously had sex with men. She sued him in 2002 and he countersued, accusing her of infecting him.

"This is a sad case," Baxter wrote for the majority court.

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