Important note: Information in this article was accurate in 2006. The state of the art may have changed since the publication date.
San Francisco Chronicle - April 5, 2006
Bob Egelko at begelko@sfchronicle.com.
The hourlong hearing in Los Angeles involved an appeal by a Los Angeles County man, identified as John B., who is accused by his former wife, Bridget B., of infecting her with HIV. The couple married in July 2000, and Bridget B. tested positive for the virus two months later. She said her husband first told her in November 2001 that he had sex with men before the marriage.
The state's high court now must decide whether John B. must disclose the frequency and other details of his past sexual activities that might have exposed him to the disease. The information would be furnished to Bridget B. as possible evidence for her damage suit; more importantly for future cases, the ruling could set standards for disclosure between sexual partners, particularly those in longtime relationships.
John B.'s lawyer, Eric Multhaup, argued that only someone who knows that he or she has a sexually transmitted disease should be legally obliged to warn a partner, or be responsible for spreading the infection. Otherwise, he said, every Californian would be under a duty to divulge all past sexual conduct that posed any remote possibility of a contagious disease.
Justice Ming Chin was openly skeptical, saying that limiting liability to those who knew they were infected would "encourage willful ignorance" and excuse those who should have known they were infected.
Justice Marvin Baxter asked whether a man was required to warn his wife that a past sexual partner was HIV-positive. No, said Multhaup, because medical authorities have found that the likelihood of transmission is low.
"But that person would then have a choice of whether to take that risk," Baxter said.
"But the person already knew ... that having unprotected sex carries a small risk of sexually transmitted disease infection," Multhaup replied.
Justice Carol Corrigan noted, however, that the general risk of infection is increased by the knowledge that one partner has been exposed to disease.
Chief Justice Ronald George added, "We're just talking about exchanging a few words. What's the burden when weighed against the possible benefit?"
Multhaup conceded that simply revealing a past exposure wouldn't be burdensome, but said the disclosure would inevitably lead to questions about the frequency and nature of the sexual contact and "all the intimate details of a person's sexual life."
Bridget B.'s lawyer, Roland Wrinkle, argued for a duty to disclose all past "high-risk behavior" as well as possible symptoms of a disease. But Justice Kathryn Mickle Werdegar expressed concern about intrusions on others' privacy in the context of a lawsuit. If a man acknowledged having sex with other men, she asked, wouldn't his ex-partner immediately demand their names and addresses?
"I concede that's a sensitive area," Wrinkle said, adding that judges can order the sealing of personal information. Asked by Werdegar where courts should draw the line -- requiring disclosure of a single heterosexual affair or a half-dozen same-sex contacts -- Wrinkle said it depends on the disease and the risk of transmission.
A ruling is due within 90 days.
The case is John B. vs. Superior Court, S128248.
060405
SC060403
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