Spouses in North Carolina whose husbands or wives infect them with a sexually transmitted disease (STD) can sue for monetary damages. North Carolina first recognized the right of a spouse to sue the other for transmission of a venereal disease as early as 1920 in the case of Cromwell v. Cromwell, 180 N.C. 516, 105 S.E.2d 206. In Cromwell, the wife alleged that during the marriage her husband contracted a venereal disease from having sex with other women, took advantage of his marital relations with her and, as a result, infected her with the disease. The jury awarded the wife $10,000 in damages – quite a bit of money in 1920.
Since the Cromwell case, there has not been another published appellate opinion in North Carolina dealing with claims for transmission of an STD between spouses. Often, cases that involve this issue settle before trial, perhaps because of the sensitive nature of the allegations and a desire to keep embarrassing facts out of the public forum, or simply because of difficulties in proving the allegations.
When it can be proven that one spouse infected the other with an STD, however, awards in other states indicate that awards for damages can be significant. In 1995, a New York jury awarded a wife $630,000 in damages after her husband infected her with herpes, which he’d contracted during extramarital sex. In Louisiana, a jury awarded a wife $125,000 in damages from her husband after he infected her with herpes. These awards indicate that STD transmission should not be taken lightly in the context of a divorce. Instead, the issue may very well constitute a valuable part of a client’s case – or pose a serious financial risk to a spouse accused of transmitting the disease to his or her spouse.
Lawsuits involving transmission of a venereal disease are a variety of personal injury claims and are typically based on negligence or fraud. Courts have held that individuals who know or reasonably should know that they have an STD have a duty to either avoid sexual contact or to warn sexual partners that they have the disease before contact occurs.
Additionally, because courts generally regard the relationship between husband and wife as a special, confidential relationship, most courts addressing the issue have held that the marital relationship arguably imposes a duty on the infected spouse to disclose his or her disease to the other. On the other hand, if a spouse does not know or have reason to know that he or she has a sexually transmitted disease, then there is arguably no duty to disclose and therefore no liability.
There is no bright-line test for the level of proof sufficient to show that a spouse knew or should have known that he or she had an STD at the time it was transmitted. North Carolina has not specifically addressed this issue. Courts in other states have held, however, that a legal duty to use reasonable care to avoid infecting others may arise even when a person does not have medical confirmation that he or she has the STD prior to transmitting it. For example, a Minnesota appellate court has held that a reasonable person with recurring genital sores who has also been told by a physician that a herpes culture is advisable should know there is a possibility that he has – and might transmit — herpes. The Louisiana court has indicated that a person who experiences genital warts most likely knows he has an STD, regardless of whether he obtained a formal medical diagnosis.
Whether bringing an action or defending against a claim involving STD transmission, medical testimony from a reputable expert may be necessary to prove liability or to present a strong defense to the claim. If you have been exposed to a sexually transmitted disease you should address the issue with a physician as well as a qualified family law attorney who can educate and advise you regarding your rights and the potential for a claim.
Contributor: S. Nicole Taylor - Nicole Taylor is a Raleigh, North Carolina Divorce Attorney with the Family Law Firm of Gailor, Wallis & Hunt, PLLC. For more information contact the North Carolina Family Law Firm of Gailor, Wallis & Hunt, PLLC at 1101 Haynes Street, Suite 201, Raleigh, NC 27604. Tel: 919-832-8488 or go to www.gailorwallishunt.com.
Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case.
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