Bay Area Reporter - July 13, 2006
Zak Szymanski, z.szymanski@ebar.com

"While the discussion wasn't narrow, I believe the decision was quite narrow," said attorney Jon Givner about the Supreme Court case known as John B. v. The Superior Court of Los Angeles . Givner is currently the director of the HIV Project of the New York-based Lambda Legal Defense and Education Fund, though he recently relocated to the Bay Area. His sentiments were echoed by representatives of the San Francisco AIDS Foundation, the AIDS Legal Referral Panel, and the AIDS Healthcare Foundation of Los Angeles.

Without attempting to determine blame in the John B. case, the court ruled 4-3 on July 3 that a woman may proceed with her legal discovery into her husband's sexual history for the purpose of her lawsuit, which alleges that he infected her with HIV. In so doing, the court also made a more significant ruling - that even people who do not have "actual knowledge" of their HIV status may be held liable for HIV transmission to their partners if they have "constructive knowledge," or a reason to believe they are infected.

"Because '[a]ll persons are required to use ordinary care to prevent others being injured as a result of their conduct' (Rowland v. Christian, supra, 69 Cal.2d at p. 112), this court has repeatedly recognized a cause of action for negligence not only against those who have actual knowledge of unreasonable danger, but also against those who have constructive knowledge of it," wrote Justice Marvin Baxter for the majority.

Although this piece of the ruling was considered groundbreaking to many observers, others noted that the ruling as a whole purposely left open more questions than it answered. And allowing liability for "constructive knowledge" may have been a simple necessity in order to allow a specific lawsuit with a very specific set of facts - including allegedly reckless behavior and a reported HIV negative test result - to proceed.

"The case was basically a discovery dispute about what information needed to be turned over," said Givner. "The court concluded it had to resolve the other issue of - 'under what circumstances could someone be liable?' - in order to answer the discovery question."

In the original case, Bridget B. v. John B ., Bridget alleged that John engaged in unprotected sex with multiple men before and during their marriage, yet he insisted that he was healthy and monogamous and that the couple have sex without condoms. In September 2000, Bridget began to suffer from exhaustion and high fevers, and soon after tested positive for HIV. When John also tested positive, his doctor reportedly told Bridget she had "brought HIV into the marriage." John allegedly began telling others that his wife had infected him with HIV, and Bridget became depressed about this until she began to suspect otherwise and John eventually admitted to having previous sexual relations with men.

In court, Bridget argued that John knowingly or negligently infected her with HIV, and that in order to sue him for related damages she was entitled to information about the other people with whom he had sex. John had objected to this discovery on the grounds that it violated his privacy. He also claimed that Bridget had in fact infected him, and that as proof, he could offer a life insurance related HIV-negative test, taken in August 2000, six weeks before Bridget discovered she was infected with HIV.

A lower court authorized Bridget's access to John's medical records and sexual history over the past 10 years for the purposes of discovery, but did not allow Bridget to know the identities of John's partners. Last week's high court ruling actually further restricted Bridget's inquiry to within six months of John's reported HIV-negative test result, the maximum time period it takes for HIV antibodies to show up in most people, unless she raised questions about the accuracy of this test result.

The high court justices concluded that among the numerous questions raised about HIV transmission and sexual history disclosure, very few needed to be definitively answered in order to address the case before them. And the ruling, said the court, would also necessarily be limited to married or presumed monogamous couples, not those engaged in casual sex or safer sex.

"We need not consider the existence or scope of a duty for persons whose relationship does not extend beyond the sexual encounter itself, whose relationship does not contemplate sexual exclusivity, who have not represented themselves as disease-free, or who have not insisted on having sex without condoms," wrote Baxter.

In gay terms

A ruling in the context of monogamy or legal marriage likely won't relieve nonmonogamous or gay couples from having to adhere to the same standards in any future civil suits, said attorney Bill Hirsh, executive director of ALRP, but it's unlikely that such a case, gay or straight, would occur again soon.

"The allegations in this instance were pretty serious. It was very different from a situation where people might not talk about their health status, it was about actively concealing information and insisting that unprotected sex happen in the face of that," said Hirsh. "With the alleged deceptiveness of the individual and his wanting to limit sexual activity to unprotected sex, any court would be concerned about that in a gay relationship as well. But this ruling really deals with the totality of the circumstances. Take away one of these factors and you don't have a legal precedent for much else."

The nature of the ruling also leaves open many questions about what constitutes "constructive knowledge," and whether that can even be universally defined across communities. Among gay men in San Francisco, for instance, HIV is more likely to be an assumed factor in sexual decision-making, and risky behavior may be talked about as "unprotective anal receptive sex," rather than simply "sex with men" as it is discussed in some heterosexual circles. While Givner noted that this court did not tackle those issues, future courts may later have to decide exactly what people must know about specific sex acts in order to determine their risks, or whether misinformation about HIV transmission can affect a person's culpability.

It's this Pandora's box of unanswered possibilities that dissenting Justice Carlos Moreno objected to in his opinion, writing, "The majority allows a person who tests HIV-positive to bring an action against all former sexual partners and attempt to ascertain not only whether they had actual knowledge they were HIV positive when they engaged in sexual relations but also whether they had any 'reason to know' they were HIV-positive. This cause of action potentially licenses invasions into the sexual privacy of all sexually active Californians and may even invite abuse of the judicial process. 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 person's sexual history in the guise of obtaining relevant discovery."

But Hirsh noted that, "even in allowing this discovery inquiry, they were very deferential to privacy considerations and were pretty judicious in limiting the period of inquiry. I don't anticipate a huge onslaught of litigation as a result of this ruling. Given how narrow the court was trying to be, there's a good argument that it would not apply in other situations."

AHF President Michael Weinstein agreed, stating, "The specific facts that caused this ruling to come about are not going to be universal," but he noted that "decisions on discovery do set precedent, and that this case likely would be cited during other cases dealing with legal discovery.

"The reason why people appeal and make such a big deal of discovery cases is that what you are or are not able to discover often determines the outcome of the case," he said.

Beyond the legal ramifications, the court ruling has some social implications as well, said Weinstein, one being that it may encourage more partner notification, "which is a good thing. That's been the missing link as part of the normalization of the disease from a public health point of view."

The ruling also may have intended to encourage more people to get tested for HIV. In effect repeating what AIDS advocates have been saying for years with regard to criminalization, the court said that linking transmission liability only to a known HIV-positive status could lead to decreased HIV testing.

"If only those who have been tested for HIV are subject to suit there may be an incentive for some persons to avoid diagnosis," Justice Baxter wrote.

"This case states that if you have reason to believe that you might be infected, you have a duty to disclose that information. It is a reminder to all of us of the need to get tested regularly and to support people voluntarily disclosing their sexual encounters and HIV status," said SFAF Executive Director Mark Cloutier, who added that the San Francisco Department of Public Health estimates 20 percent of HIV-positive people in the city do not know their status and that 25 percent of HIV-positive people are not in regular primary care.

"We do have this issue of a fairly high number of people who are HIV-positive who have not been tested or not tested recently enough, and we do need to encourage those folks to know their status before engaging in sex with other people," said Cloutier.

And while the court ruling itself may be legally limited, it could have legislative implications, said Dana Van Gorder, state policy director for SFAF. Lawmakers often codify court rulings, and if they do take up the issue of "constructive knowledge," he said, they may take it beyond the civil court arena and push for criminal penalties for those who suspect, rather than know, their HIV-positive status. From a criminal perspective, very few cases of HIV transmission have been prosecuted statewide, in part because the legal standard of intentional transmission is so high, and legislators have previously attempted to lower or modify this standard.

Most advocates agreed that lawsuits were not an ideal way to forge HIV policy or foster prevention. But Jeff Sheehy, HIV/AIDS adviser to Mayor Gavin Newsom, said that perhaps it's time for the legislature to codify parameters of civil suits, so that people who do need legal recourse don't have to push for HIV criminalization and aren't able to broadly violate the privacy rights of people with HIV.

"With HIV transmission, except in a few rare cases, the criminal system is not an effective or appropriate way to proceed. But there may be some gray area instances where a civil justice system can do a better job of managing this conflict resolution. Given that these suits are going to proceed, what are the parameters under which they can proceed? The legislature can set the boundaries so that we don't end up with nuisance suits or stigmatizing people with HIV," said Sheehy. "The choice shouldn't be that HIV-positive people are either thrown in jail or there is no recourse for HIV-negatives. There are a lot of people walking around with HIV today, and it's not going to get simpler; it's going to get more complex."

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