Herpes Infections From Consensual Encounters

By Yosi Yahoudai Founder and Managing Partner

August 20, 2024

Sexual Abuse

In California, you may be able to sue someone if you contract herpes from them and can prove they were the source of your infection. The grounds for your lawsuit will depend on specific factors, such as whether the person was or should have been aware of their infection, the consensual nature of the encounter, and whether you actually contracted an infection as a result.

Can I Sue Someone If They Gave Me Herpes?

If you contracted herpes during a consensual sexual encounter, you might sue the other party for negligence. The 1990 Doe v. Roe case established the requirements to prove negligence:

1. The other person had herpes.
2. They did not inform you of their infection.
3. They failed to take protective measures to prevent transmission.
4. A reasonable person could foresee the harm (e.g., infecting another person).

An individual’s unawareness of their infection or contagiousness is not a defense. If they had reasonable grounds to believe they had herpes or suspected an infection, they could be held liable.

California courts have emphasized the importance of preventing venereal disease transmission and the relatively small burden of warning a prospective sexual partner. Confidentiality protections for medical history do not apply in cases involving sexually transmitted diseases, as the public interest in limiting contagious diseases outweighs an individual’s privacy rights. Negligently infecting someone with herpes may also lead to misdemeanor charges.

Herpes Infections From Non-consensual Encounters

If a herpes infection results from a non-consensual sexual encounter, you can sue for civil battery, potentially receiving punitive damages in addition to compensatory damages. Criminal charges may also be filed, but they are not a prerequisite for a civil suit.

To prove civil battery, you must demonstrate that:

1. The other person intended to harm you.
2. You did not consent to the conduct.
3. You were harmed.

A 1985 California case stated that civil battery requires only the “least touching,” meaning serious injury is not necessary for a guilty verdict.

Does The Relationship Between Parties Matter?

The relationship between the parties is irrelevant for negligence or civil battery claims. A person can be found guilty of infecting their spouse during a non-consensual encounter or a consensual one-night stand.

Compensation

Generally, a guilty defendant will be personally liable for any awarded damages.

If the infection-causing encounter occurred at the defendant’s home, you might file a claim against their homeowner’s insurance, depending on the policy and location of the encounter. However, proving the location can be challenging, and insurance typically doesn’t cover intentional torts.

Recoverable Damages for Herpes Cases

Civil law requires harm or injury due to the defendant’s actions. In herpes cases, the harm is an infection caused by the defendant’s failure to warn or protect you.

You may claim losses, such as medical expenses, lost wages, and reputational damage, resulting from contracting herpes. Since herpes is incurable and requires lifelong treatment, it may affect your future relationships and potentially your children.

Contact A Lawyer Today

Contracting herpes is life-changing. If you can prove your infection came from another person, they may be liable for damages. Regardless of the encounter’s consensual nature, the other party may be responsible for damages. Contact J&Y Law today for a free consultation to begin the process of getting justice.

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