Sued for having sex?

With summer coming, your dating life may soon ‘pick up’.

And, when dating someone, there is a lot to discuss, such as family, work, and future goals.

But how about whether or not you have any sexually transmitted diseases/infections (STDs)?

While not a fun topic, it should be on the radar (as there can be legal consequences).

STDs are very common (more common than you might think).

Gonorrhea is the most common bacterial STD worldwide and chlamydia is the most common bacterial STD in Canada. Approximately 16% of adults are infected with genital herpes. An estimated 75% of Canadians will be infected with human papillomavirus in their lives and 10-30% are infected at any one time. And approximately 75,000 Canadians are living with HIV.

Imagine this: you start dating someone and, before engaging in sexual activity, you ask them whether or not they have an STD. They tell you they don’t and you engage in sexual relationship. After some time, you develop rashes/sores/whatever, which is later diagnosed as an STD. Your partner then confesses that they have the STD, but were too afraid to tell you.

So, what happens next?

Well, many things, including a big argument. But, in addition to that, it is possible that the ‘perpetrator’ (defendant) could be found liable (i.e. has to pay money).

This may sound strange, but think of it like any other personal injury matter: a person suffers loss/harm as a result of another person’s negligent, fraudulent, or malicious conduct (and is, of course, entitled to compensation for that loss/harm).

So, what is the loss/harm in this type of case? Well, to start, the ‘victim’ (plaintiff) could require medical treatment, such as medication and/or psychological treatment. There may also be expenses related to pregnancy management (to ensure that the STD is not passed to the child). The plaintiff may also suffer severe emotional distress and, depending on the STD, they may also require time off work (resulting in lost income).

Don’t think these lawsuits actually happen? Well, they do (but not often).

In 2003, in a highly publicized case, Michael Vick, former Atlanta Falcons quarterback, had a sexual relationship with a 26-year-old health care worker, knowing that he had herpes and failed to disclose it. Afterwards, the woman commenced a lawsuit against Vick, which was later settled out of court.

For a case closer to home, consider this Quebec case: L. (J.) v. N. (A.), 2007 QCCS 3226.

In this case, a woman questioned her new partner on his sexual history and was told that he did not have an STD. The man did not, however, disclose that he had not been tested in some time.

Relying on that information, the woman agreed to engage in unprotected sex. Later, she began experiencing burning sensations, which was later found to be herpes (transmitted from her partner). The woman then commenced a lawsuit for losses that she suffered.

At trial, the Court found that the man had deceptively driven the woman to engage in unprotected sex and was found liable for the woman’s medical costs and emotional distress. But, with that said, the Court also found that the woman accepted the risks and took the man at his word. As a result, some of her claim was denied.

Civil claims like this are rare.

It may be because these cases can be hard to prove. For instance, it can be hard to prove that the plaintiff did not know about the STD (prior to sexual contact) or that the plaintiff actually contracted the STD from that particular defendant.

It may also be because losses can be small/trivial, such as for a bacterial STD that can be easily treated, making a lawsuit ‘not worth it’.

It may also be because people are not aware that this type of recourse exists.

Civil claims aside, it should also be noted that not disclosing sexual health could lead to criminal charges.

Since the landmark case of R. v. Cuerrier, [1998] S.C.J. No. 64, there have been numerous cases in which people, who have failed to disclose their HIV status, have been charged and convicted with Criminal Code offences, ranging from aggravated assault to murder.

I understand that this law might soon be modified, as discussed here: Supreme Court hears HIV disclosure case. But, for now, there are criminal consequences.

Bottom-line: be honest, have safe sex, and don’t get sued.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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