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Analysis: How the State Supreme Court HIV Ruling Affects Adult
By: Mark Kernes (Courtesy of AVN.com)
Posted: 7/30/2006

Chatsworth, Calif. – Describing the situation as "a sad case," California Supreme Court Justice Marvin R. Baxter has authored the majority ruling in a marital dispute that could have major repercussions for the adult video industry.  

The case is John B. v. The Superior Court of Los Angeles County, with Bridget B. noted as the "Real Party in Interest" – not surprising, since the underlying claim in the lawsuit that gives rise to this proceeding is that Bridget’s husband John infected her with HIV during their marriage, lied to her about his sexual history, and claimed that it was actually she that infected him.  

What follows is a lay analysis of the California Supreme Court’s decision, delivered on July 3, with comparisons of the case’s facts and allegations to practices in the adult video industry. (The author here is not an attorney.)

According to Bridget’s pleadings, she and John began dating shortly after meeting in September, 1998, and married in July, 2000.  

"During this period," according to Bridget’s complaint, "John represented to Bridget that he was healthy, disease-free, and monogamous. Indeed, it was John who insisted that the couple stop using condoms during intercourse. Based on John’s representations, Bridget complied with his demand to engage in unprotected sex."

Analysis: Performers in the adult video industry regularly engage in unprotected sex, with the vast majority having been tested for presence of HIV within the previous month.

Two months after their marriage, the complaint avers, Bridget began to suffer from exhaustion and high fevers, and on October 1 found out that she was HIV positive, and shortly thereafter, John too tested positive for the virus.

"John’s doctor told Bridget that she had ‘brought the HIV into the marriage,’ Justice Baxter wrote. "The doctor prescribed medications for John that made his viral load virtually undetectable.  Bridget, on the other hand, was not offered treatment; she was informed that she had ‘had the illness for a long time.’"

Analysis: John’s doctor’s conclusions are interesting, and without more information than is contained in the Court’s ruling, should be considered suspect. Experts on HIV transmission who are familiar with the adult industry have stated previously that since each individual’s immune system reacts to HIV infection differently, it is not possible to say, weeks after an infection has been detected, that simply because one partner’s viral load is higher than another partner’s, that the higher-load partner contracted the disease first. The opinion also fails to reveal what type of HIV test the parties took: Elisa or PCR-DNA; the latter being more diagnostic, while the former has been known to fail to show a positive reaction (to HIV antibodies) even after six months’ exposure. In fact, the pleadings note that John began showing visible signs of AIDS – face and scalp lesions – about one year after their diagnosis, while Bridget’s symptoms were not physically apparent. Moreover, it is unconscionable that a doctor would fail to offer treatment to an HIV-positive patient simply because she had "had the illness for a long time."  

According to Bridget’s pleadings, about one year after their diagnosis, John claimed, and began telling others, that Bridget had brought the HIV infection into the marriage. Bridget soon began to suspect just the opposite, and after John threatened that "it would not be healthy for their marriage to blame him," he admitted to her that he had had sexual relations with men before their marriage, and Bridget suspected that such relations had continued even while they were married.  

In lawsuits, it is common that a plaintiff will "cover all the bases" in pressing his/her allegations, so while Bridget’s first cause of action alleges that John knew he was HIV positive before he married Bridget and engaged in unprotected sex with her, "The second cause of action (negligent infliction of emotional distress) alleges that John knew or had a reasonable belief that he had HIV, that he nonetheless engaged in unprotected sex with Bridget, and that his negligence caused her to become infected with HIV." [Emphasis added]

Analysis: Consider the case of Darren James, who reportedly had unprotected sex with an untested partner in South America while on a video shoot, and that upon returning to the U.S., had a PCR-DNA test within the "window period" for such test, which therefore failed to detect his infection. He then reportedly infected at least two other performers directly. While much of the industry has implemented a "quarantine period" for performers returning from having worked out of the U.S. and for performers newly entering the industry, that is by no means a universal practice. This case suggests that failure to avoid unprotected sexual contact with a partner until the "window period" of the PCR-DNA test may result in liability for the HIV-positive performer, and possibly for the company producing the video shoot.

Moreover, the opinion notes that John uses the fact that Bridget had "intimate sexual relations with [John] without using condoms or any other form of protection against the HIV virus or other sexually transmitted diseases," even though he initiated that contact, as a defense against her allegations. In other words, John is claiming that whether or not he was HIV-positive, Bridget had a duty, apparently absent a negative HIV test, to assume that he was positive, and to take precautions to prevent transmission of his disease to her. It will be interesting to see how that argument plays out, since the result will have important ramifications for the adult industry.  

The intent of the instant action, however, is to have the Court order John to reveal his sexual history and his awareness of his HIV infection before the date upon which he claims he found out about it, October 13, 2000. It also asks the Court to order John to honor Bridget’s subpoena for his medical and employment records. John has objected to all such requests. A referee, serving by stipulation of the parties, recommended that John’s objections be overruled, and an L.A. County Superior Court judge adopted the referee’s recommendations. On appeal, the Court of Appeals granted Bridget’s petition as to all but four "Special Interrogatories" (questions) and two requests for admission.

Bridget had asked John to state (1) the name, address, and telephone number of every man with whom he has had sexual relations in the last 10 years; (2) the date of his first sexual encounter with a man; (3) the date of his last sexual encounter with a man; (4) the name, address, and telephone number of every man with whom he has had unprotected sex in the last 10 years; (5) the date on which he first became aware he was HIV positive; (6) the date on which he first became aware he had AIDS; (7) the date on which he first told Bridget that he had engaged in unprotected sex with men; (8) the name, address, and telephone number of every HIV-positive man with whom he has had unprotected sex; (9) the name, address, and telephone number of every man who has AIDS and with whom he has had unprotected sex; (10) the number of sexual encounters with men he has had in the five years prior to his relationship with Bridget; (11) the date of his last sexual encounter with a man prior to the date of his engagement to Bridget; (12) the date of every sexual encounter he had with a man between his engagement to Bridget and the wedding; and (13) the number of sexual encounters he has had with men since he first met Bridget. John objected to all of the requests. The Court of Appeals agreed that John did not have to respond to requests 1, 4, 8 and 9, but ruled that he had to answer the rest.

Bridget also requested John to admit that (1) he had had unprotected sexual relationships with multiple men in the 10 years prior to meeting Bridget; (2) he never told Bridget before they were married that he had had any sexual relationships with men; (3) he had AIDS prior to the time he first had unprotected sex with Bridget; (4) he knew he had AIDS prior to the time he first had unprotected sex with Bridget; (5) he transmitted AIDS to Bridget; (6) he transmitted HIV to Bridget; (7) he never told Bridget, prior to the time he had unprotected sex with her, that he had had unprotected sexual encounters with men; (8) he knew that his lifestyle prior to the time that he met Bridget put him at risk of acquiring HIV; (9) he never told Bridget, prior to having unprotected sex with her, about his lifestyle of having unprotected sex with men; (10) he continued to have unprotected sexual relationships with men after he was married; (11) prior to his marriage, he hid his sexual relations with men from Bridget; (12) he knew he had a history of having unprotected sexual relations with men that put him at risk of acquiring HIV at the time he accused Bridget of infecting him with HIV; (13) he has AIDS; (14) he knew he had AIDS before he married Bridget; and (15) he hid his sexual relations with men from Bridget before the wedding. Again, John objected to all of the requests for admission, and the Court of Appeals agreed that he didn’t have to answer requests 8 and 9. The Court also denied John’s motion to quash the subpoenas for his medical records, although it limited the subpoenas to discovery of records of John’s treatment for AIDS or HIV infection since 1980.  

After ruling that Bridget generally had a right to discover at least some aspects of John’s medical condition, the Court then considered the allowable scope of that discovery, and noted that the California Supreme Court had not yet had occasion to consider whether negligent transmission of a sexually transmitted disease (STD) was something one party could sue another for and win, though it did note that several other states had considered the question and decided that such a suit was valid.

"John concedes that a person who actually knows he or she is infected with a sexually transmitted disease based on a test from an accredited laboratory or a medical diagnosis has a duty to use ordinary care to see that the disease is not transmitted to others," the Court stated, while later advising that, "Tellingly, neither John nor our dissenting colleagues have identified a single jurisdiction that has limited liability for negligent transmission of HIV or other sexually transmitted diseases only to those who have actual knowledge they are infected. Our sister states instead impose liability when the actor has knowledge, actual or constructive, of a sexually transmitted disease."  

("Actor," as the term is used here, does not mean "performer in a movie" but simply a person who takes certain actions.)  

Whereas with actual knowledge, a person knows, either through a test or by suffering symptoms, that he/she has a disease, constructive knowledge "presupposes that the actor either does foresee an unreasonable risk of injury, or could have foreseen it if he conducted himself as a reasonably prudent person," the Court noted, quoting from a prior ruling.

"Extending liability to those who have constructive knowledge of the disease, as these jurisdictions have done, comports with general principles of negligence," the Court said, and later added, "Moreover, limiting tort defendants to those who have actual knowledge they are infected with HIV would have perverse effects on the spread of the virus.  If only those who have been tested are subject to suit, there may be ‘an incentive for some persons to avoid diagnosis and treatment in order to avoid knowledge of their own infection.’"

"In this case, we conclude that the tort of negligent transmission of HIV does not depend solely on actual knowledge of HIV infection and would extend at least to those situations where the actor, under the totality of the circumstances, has reason to know of the infection," the Court stated, while cautioning that such allegations would be considered on a case-by-case basis.

"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."

Analysis: A performer in adult features, even though tested monthly at AIM or a similar facility, could still be considered to have constructive knowledge of an HIV or other STD infection if he became positive, infected another performer and it could be shown that he/she engaged in unprotected sex with an untested partner. The fact that the Court, in its opinion here, did not consider the circumstances of transmission between non-married partners performing sex in a business setting does not mean that it would find differently in such circumstances. Importantly, the Court notes that, "we cannot agree that persons who have reason to know they are infected with HIV, a gravely serious disease with no known cure, should be subject to a lesser duty of care than persons who have reason to know they are infected with other sexually transmitted diseases."

"John also complains that the risk of transmission of HIV in any individual act of intercourse is so low as to make it unreasonable to impose a duty of care on someone who is not actually aware he or she is infected," the Court recounted, then ruled, "We disagree. A low risk of transmission is insufficient to relieve the infected individual of a duty where the harm itself is great and the duty of care to prevent that harm is not onerous… The medical advances in combating HIV do not relieve infected individuals of their duty to avoid transmitting what remains a very serious disease… [T]he gravity of the harm from HIV infection is a justification for imposing a greater duty of care on those who are infected … not, as Justice Moreno would have it, a basis for insulating those infected from responsibility for their conduct in transmitting the virus to others."

Analysis: Although as noted above, the Court is not referring here to a situation analogous to adult video production, this suggests that if it were to consider such a set of facts, it might very well rule similarly.

The Court also considered whether John’s right to privacy, particularly privacy as to one’s sexual relations, would prevent Bridget from discovering John’s sexual history and medical records pertaining to STDs. Noting that both parties have already admitted to being HIV-positive, and in fact accused each other of causing that status, the Court ruled that John’s attempt to invoke a constitutional right to sexual privacy could not withstand his duty to provide such information in legal discovery. Such discovery was limited, however, to John’s history and medical status before the couple stopped having sex, and only back to six months before John’s negative HIV test.

As noted above, this lawsuit is still in a preliminary (discovery) stage, and it is not clear when (or if) a trial will take place. However, the California Supreme Court’s rulings here on the limits of discovery may well have an effect on lawsuits that could arise from HIV (or any STD) transmission in the workplace setting of the adult industry.  

AVN.com will be following this case as it proceeds and reporting on developments that could impact the adult industry.

 

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