An AIDS Case Tests California Law

I'm sure that state legislators in California already have a lot on their plate. But they should add one more chore before too long. They should clarify -- either formally embrace or reject -- the premise and holding of an important ruling Monday by the California Supreme Court that could make one sexual partner liable for infecting another with HIV even if the first doesn't have "actual" knowledge that he or she is infected and could infect the other.

The 4-2 ruling (one Justice agreed with the majority's conclusions, but not its analysis) expands the potential scope of civil liability under California law to people whose sexual history create a reasonable "reason to know" that they may carry the deadly disease, but who still don't tell their partners. You don't need to be a legislator, a legal analyst or a social worker to know that's a big deal in a state long ravaged by AIDS and long the subject of earnest legislative efforts to deal with the complicated liability and privacy issues that arise from the shadows of the disease.

The Court's majority said it was necessary and advisable to expand potential liability to those actors who have "constructive knowledge" (not just that they knew but that they had reason to know) of their illness because to require only "actual knowledge" 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 diagnoses and treatment in order to avoid knowledge of their own infection.'"

The majority based its conclusion upon the law in other states and upon the "general principle of California law" that there ought to be liability when it is reasonably foreseeable that an actor's conduct will cause harm. "When the actor has reason to know of the HIV infection¿i.e., when there is sufficient information to cause a reasonably intelligent actor to infer he or she is infected with the virus or that infection is so highly probable that his or her conduct would be predicated on that assumption¿the potential for harm through sexual transmission is reasonably foreseeable." Thus, California now has a new standard of liability.

Utter nonsense, said the dissenting Justices. The first, Justice Kathryn Mickle Werdegar, said the Court's "majority's vague and inconclusive treatment of the concept of constructive knowledge in my view demonstrates that its enterprise in this respect is not only premature...but also insufficiently grounded in California law and ill considered as a matter of public policy." She said she was "unwilling in the context of this atypical case to join the majority in creating the prospect that an individual may be drawn into intrusive litigation, whether as a party, witness, or respondent to discovery requests, whenever a former partner, or that partner's subsequent partner, contracts a sexually transmitted disease."

The second dissenting Justice, Carlos Moreno, was even more pointed with his criticism of the Court's majority, which he said contradicted the policies (and law) promulgated by state legislators. The "majority's disregard for these policy considerations and the Legislature's policy judgments in its rush to create this new tort... is remarkable," Justice Moreno wrote. "I find it difficult to believe," he added, "that the avoidance of theoretical future civil liability would play any part in the decision of most people whether or not to get tested to determine if they are infected with a potential life-threatening virus."

Generating the ruling is what Justice Marvin Baxter called with a great degree of understatement "a sad case." "Bridget B" and "John B" are married and now are infected with HIV. Bridget claims in a civil lawsuit that John engaged in unprotected sex with multiple men before and during their marriage, got infected by one of them, and then "knowingly or negligently" transmitted the disease to her. Can you imagine?

John points to a negative HIV test he says he took in August 2000 -- about six weeks before Bridget discovered that she was infected with HIV. As part of his defense against Bridget's claims, he says that Bridget infected him. Bridget, meanwhile, says that one month after she confronted John about the matter -- which was fully one year after both had been diagnosed! -- John finally admitted that he had been sexually active, with men, before and during their marriage. Again, can you imagine?

In short, Bridget claims that John blamed her for bringing the disease into the marriage as a cover-up to hide his own culpability. It really doesn't get much more awful than that, right? But the case is a long way from trial. Right now the couple find themselves only at the "discovery" stage of the process. Bridget sought to require John to answer, under oath, many highly personal questions about his sexual history and lifestyle as a way of perhaps uncovering information that would help her prove her case against him. John objected to this discovery on constitutional grounds and also upon his reading of California state law, which has created many barriers to the disclosure of a person's health and sex information.

This is a "water cooler" case that also happens to raise substantial questions of health and safety, privacy and responsibility, and the role of the government, if any, in overseeing the intricacies and intimacies inherent in personal relationships. The story of Bridget and John may be "atypical," as the Justice put it, but marital infidelity sure isn't, and unprotected sex within a relationship sure isn't and neither is the spread of HIV. And there clearly are, as the dissenting Justices allege, a great many ramifications to the majority's ruling -- on existing California law, on the Constitution -- that were neither raised nor addressed by the opinion of the court.

Indeed, it is impossible to read the four opinions that constitute John B. v. Bridget B. and not conclude that within the four corners of the document the Justices are having a spirited (but inherently incomplete) debate that would be better off taking place in public at the state legislature, where the full impact of the public policy choice would be considered and debated. Does the state want to expand the scope of liability even if it means more litigation? Does the state want to stay with an "actual knowledge" standard even if it serves as a disincentive for people not to take an HIV test? Is it even true that either standard would create the parade of horribles that their detractors on the Court say? And in the end who should decide?

The Court's majority has highlighted a gap in California's law. And it has moved to close that gap. Nothing wrong with that. But now state lawmakers should step in with a more permanent answer. They should gather together all the stakeholders in this great debate and allow them to duke it out as a political matter. My guess is, at the end of such a debate, the state's politicians would ratify what their judicial colleagues did earlier this week and make the "constructive knowledge" standard the law of the state. Such a result would be too late for John and Bridget but might come just in time to save another couple on the verge of catastrophe.

Andrew Cohen writes "Bench Conference" and this regular law column for washingtonpost.com. He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here.