Imagine you're married to someone you love and one day you find out that person hasn't just cheated on you, they've given you a lifelong reminder of it: a sexually transmitted disease. What do you do? Some spouses are suing their soon-to-be ex-partners in civil court, legal experts say.
"We've got a client right now, the husband, whose wife was cheating on him and gave him a lifetime STD," said California attorney David Pisarra. "He is planning on suing her for the lifetime pain and suffering, along with the medical costs."
"I'm not sure how the case will turn out, or if he's going to move forward, because of the child, and the lack of huge numbers to make it worthwhile. However, he wants to based on the emotional damage that he is suffering as a consequence, and perhaps, as is so often the case, it will be cathartic for him to just begin the process and eventually the heat of the anger will subside and he'll either settle or dismiss the case," Pisarra said.
Legal causes of action includes: Intentional Infliction of Emotional Distress, Battery, Negligence, Fraudulent Inducement, (to have sex), Breach of Contract (Marriage vows, with an implied element of good faith and fair dealing).
The Center for Disease Control estimates that 45 million people are now living with herpes, and 700,000 become infected with gonorrhea each year. Dr. Tina Tessina, aka Dr. Romance, said the numbers suggest monogamy is "largely a myth." "Wives who are naive and want to believe in it are leaving themselves vulnerable to disease," she said. "Don't forget, we have a huge prostitution industry in this country, too. Who is paying to support it? Mostly married men."
But Divorce360 expert Brenda Della Casa, author of "Cinderella was a Liar," which offers relationship tips from married couples, divorced and singles, thinks there should be a legal recourse for people whose health has been compromised by "reckless behavior."
"Think about it; if someone breached a business contract, they'd wind up in court so why is a contract to protect someone’s health less valid?," she said. "Affairs are more than betrayals of the heart, they are betrayals of health and can severely alter or even cut short the lives of the person they promised to love and protect."
"When diseases go undetected because an unfaithful partner is hiding an affair, they can put their partner at risk not only for the disease but the effects of leaving it untreated such as infertility. If you want to sleep around, fine, but every person has a right to decide how careless they want to be sexually and that includes your partner," Della Casa said.
Suing your spouse for giving you a sexually transmitted disease is not an easy legal battle to win, according to Pisarra. "This type of case is difficult to prosecute because, generally, it will not be a headline-grabbing, $25 million case that makes for good litigation. Most of the time the parties do not have the high net worth to support a large award... Most people are not going to have enough special damages, to make a lawsuit worthwhile, from the lawyer's perspective."
"Assuming that you have someone in their 30's who gets herpes and has to take Acyclovir for a lifetime, even at $100 a month, you're still only looking $1,200 a year. Over 40 years, it would be $48,000 plus emotional damages and then punitive damages. But like all cases, winning and collecting are two different things," Pisarra said.
"Plus, remember that most STD's are not going to be lifetime issues, a little gonorrhea, lice, or chlamydia are all easily cured, so no long-term costs are implied. No long-term costs, means no large settlements, means no large jury awards, all of which equals no lawyer wants the case. For a lawyer to take the case on a contingency, would require that there be a big enough payday to make it worthwhile and for the average Joe/Jane, I don't think that is going to be the case. Thirty percent of 48,000 is $16,000, and there is no guarantee or even likelihood of collecting it, so chances are finding a lawyer who is willing to take a case like this, are slim," Pisarra said.
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