Marc Christian tells it this way: He was relaxing in the Bel Air house he shared with his lover Rock Hudson last July when he flicked on the radio and heard the news. Hudson was in Paris and critically ill with AIDS. It was the first Christian had heard about it. He was, in his lawyer's words, "stunned, angry and devastated. Marc can't believe that Rock Hudson lied to him."
Christian and his lawyer Marvin Mitchelson now contend that Hudson had been diagnosed as having AIDS more than a year before Christian heard that bulletin. "Marc tells me he has nightmares about dying all the time," says Mitchelson. "Then he'll wake up, look in the mirror and wonder if and when it'll happen. Everytime he feels the least bit ill he thinks he's going to die. It could be five years before he knows. He's been to a doctor who told him he probably will get AIDS, the exposure was so high. He's scared to death."
Christian filed lawsuits Monday calling for $14 million in damages against Hudson's estate, two advisers and two doctors. Though Mitchelson says this is the first such case pertaining to AIDS, it is part of a growing legal area concerning sexually communicable diseases and a partner's right to know. A Los Angeles woman is suing her lover of less than two months for allegedly giving her genital herpes. An Oakland woman is suing her ex-husband in a similar case. There have been cases in Florida, Iowa, Washington State and New York.
If the case proceeds like the growing collection of others so far settled or still pushing through the courts in other parts of the country -- cases for the most part dealing with genital herpes -- attorneys and eventually jurors may have to contemplate questions that somehow only this litigious and libidinous era could have produced:
*Does a lover, proceeding in what presumably is the heat of passion, have the right to assume that even a casual one-night union will be physically safe -- that the partner is free from disease?
*Must a person with, say, genital herpes be obligated, under threat of possible lawsuit, to tell every sexual partner about the disease? How full a disclosure should the law require?
*What distinguishes small lies from big ones in the realm of sexual seduction? How far can the judicial system go if it begins demanding truth in sexual relationships?
What follows is a look at some of these new cases. Mitchelson, who became famous for landmark "palimony" suits, says, "It's a whole new area of the law. The duty to tell is an area we just haven't explored."
When the jeweler asked his estranged wife in the summer of 1982 whether he might spend some time with her and the children, she told him she thought it would be all right. They were separated, not divorced. She had always hoped counseling might reconcile them; now, even though she had finally filed the first papers for their divorce, here was Oliver sitting down with her to talk earnestly about how ardently he too wanted to save the marriage.
"And so -- we went to bed." Her first name is Margaret; her last name, on the court papers that have since receded from newspaper headlines, was once the same as his. She is gazing at the Formica table top, the cap of a felt-tip pen snapping on and off in her hands.
"It had been over a year," she says.
Four days later there was a second encounter. It was a week after that that Margaret reported to a Seattle physician, complaining of something that felt like a yeast infection compounded with rampant flu. "He told me I had herpes," she says. "He told me" -- she is speaking carefully here -- "I looked like raw hamburger. He said, 'This is the worst case of internal outbreak that I've ever seen.' "
Incurable was the principal thing Margaret knew about genital herpes; that and some dim conviction that this was supposed to be a disease of the promiscuous, or the unwashed. It took her many weeks of counseling to learn the plain medical data that was now to settle permanently into her life: that genital herpes simplex virus is passed through sores that break out occasionally in the pubic area; that there are 5 million to 20 million Americans now believed to be carrying the disease; that it greatly endangers babies passing through the birth canal during an outbreak, and that its symptoms may recur regularly or sporadically, so that Margaret might, for the rest of her life, be beset on and off with itching, sores, fever, headaches, depression and pelvic pain deep enough to confine her to bed.
"I was totally shocked," she says. "That was the last thing -- I had no idea at all."
Five months after her diagnosis, she went to see one of her divorce lawyers. He was barely out of law school, and Margaret, at 30, was so embarrassed that she could scarcely look at him while she said what she wanted to say. She said Oliver had done a terrible thing to her. She wanted to know, she said, whether the man who gave her genital herpes could be forced by law to compensate her for what she must now endure.
She had understood, even before her momentarily unsettled attorney began listing them for her, what some of the complications might be. She would have to testify, before 12 strangers in open court, about sexual relations with the man she intended to divorce. Attorneys out to discredit her would demand that she detail under oath what she believed and what she felt at moments of the greatest intimacy. Strangers with notebooks and tape recorders probably would follow her court case, intrigued by the remarkable prospect of a jury deliberating the passing of herpes from one lover to another.
"I wanted to be able to say to him, 'You're not going to be able to get away with hurting me anymore,' " Margaret says slowly. "All the other stuff, maybe someday I'll forget. This I'll never forget. It will live with me -- all the time."
Statements and conduct between romantic partners is private and sacrosanct. By its very nature, there is an inexactness and imprecision that attaches to those exchanges. The mating dance is a special and revered ceremony. Within certain broad parameters, the rules are set by the participants. To require a literalness and precision to what is said during those romantic interludes would be a sad loss to all.
The preceding paragraph appears in an appellate brief prepared by the attorneys for Robert B., a Southern California physician now facing civil trial for battery, negligence, deceit and intentional infliction of emotional distress. The woman suing him, referred to in the discreet court papers as Kathleen K., is a nurse who had a brief affair four years ago with Robert B. and claims that she discovered, seven weeks after they first began sleeping together, that he had given her genital herpes.
He claims, through his attorneys, that he was not an active herpes carrier when they had sex, and so could not have given it to her.
He claims that even if he was an active carrier, which he denies, and even if she could not have gotten genital herpes from some other partner, which he denies, she consented to everything they did together: that she knew, in the precise language that now frames their spring affair, "the risks and hazards involved in engaging in sexual intercourse, and had knowledge of the conditions existing and appreciated the danger thereof."
That, as the judicial system moves gingerly onto difficult new terrain, is what a jury will have to sort out.
"Marvin v. Marvin . . . introduced 'offer, acceptance, and consideration' into the bedroom lexicon," reads Robert B.'s appellate brief, referring to the 1976 California Supreme Court case that allowed actor Lee Marvin to be sued by the woman who claimed Marvin owed her compensation in exchange for her company as his lover and housemate. "Must we now intrude further by adding 'misrepresentations known to be false' and 'justifiable reliance?' Should we keep tape recorders on the night stand? Send confirming correspondence as to discussions exchanged? Require the execution of advice and waiver forms? Especially in 1984 should we be sensitive to and reject such intrusions."
"Certainly courtship in and of itself, I guess, could be considered a sacred process," counters Barry Pollack, the Los Angeles attorney who has taken Kathleen K.'s case. "The guy who, on the way to the girlfriend's house, stops in the neighbor's yard and picks little white daisies, wraps them in some foil he finds in the garbage can and says, 'Here, honey, I bought these for you' -- that's fine. But that's not what we're talking about . . . There is a certain threshold amount of veracity that is required on which to base a relationship -- especially on a direct question about one's physical condition."
Margaret lives some distance from Seattle now, in a town where she no longer uses her married name. She is an articulate, competent professional, her blazer a businesslike gray and her briefcase heavy with papers from work. Nobody in town knows the way she and her husband finally left one another. Nobody knows why once a month or so she walks with constant pelvic pain and the beaten-down feeling of someone about to take to bed with the flu.
Nobody knows that she can still take a deep breath, in the midst of a composed long talk about her disease, and come so close to weeping that she has to bend her head and fuss with the papers in her briefcase until her face begins to calm itself again.
"I thought I was going to be alone, forever," she says. "I felt very isolated. As the initial shock hit me, I felt -- okay, it's me, and my kids, and my career."
She felt indelibly labeled and irrevocably diseased. She was certain no man would ever risk intimacy with her again. She began eating compulsively, as though driven to show people what emotional chaos lay beneath what she now thought of as the mask of an attractive and capable woman. "I had to shut off who I was, and what I was feeling," she says. "And if I was fat, no one would be interested in me, too. But I didn't like how I felt. So it became a real vicious circle."
But it was clear to her, she says, that she wanted to proceed with her case. "I wanted him to be openly -- humilified," she says. She stops, realizing she has jumbled humiliated and vilified, and smiles. "I wanted people to point to him and say, 'He's the bad person,' I guess. I needed that."
She says that from the beginning, money was not the major point. "I didn't care, basically, if the money came from him or not," she says. "If the money was there, I wasn't going to pass it up . . . It's just -- I wanted him to be accountable for what he did to me."
As far as Margaret's attorneys could determine, the specifics of her case were unprecedented in Washington State, but the principles arguably were not. "The legal principles aren't novel at all," says Seth Fulcher, the Seattle lawyer who helped argue Margaret's case. Civil litigation abounds with charges that one party or another has been negligent, which in the law generally means failing to meet some legally or socially established standard for protecting other people against an unreasonable risk of harm. If an automobile driver rear-ends another car while bending over to tie his shoe, that could certainly be construed as negligence.
Earlier legal cases, some of them dating to the turn of the century, found negligence in the accidental transmission of diseases such as smallpox and tuberculosis; and nearly half of the states in the country make transmission of venereal disease a criminal offense. But none of those states' statutes mentions genital herpes, a disease whose epidemic proportions have only been publicly discussed over the past few years. On the kinds of questions raised by a case such as Margaret's -- what can a jury decide a sexual partner is required to disclose? -- the law offered little by way of guideline.
At least Margaret's case, her attorneys saw, could be presented in the context of a marriage: an estranged but legally married wife who had reason to expect a certain standard of behavior from her husband. In Los Angeles, where Barry Pollack was preparing briefs for the nurse named Kathleen K., the issue was murkier. These were short-term lovers, not husband and wife. Pollack was deeply convinced of the merits of her case, he says -- Kathleen had told him that before the lovers' first encounter, she had specifically asked the physician whether he had herpes, and that Robert B. had told her he did not.
But in February 1983, the California Superior Court rejected Kathleen's claim and said she could not proceed to trial. The court cited in particular a 1980 ruling in which a man calling himself Stephen K. had been struck down in his effort to sue his lover for allegedly lying about her use of birth control and thus deceiving him into fathering a child. Society was best served by "individual constraints and personal views of propriety" controlling private sexual matters between adults, the Superior Court wrote. Quoting the Stephen K. ruling, the court said the judicial system could not be expected to remedy every deceit and every wrong: " 'For instance, such wrongs as betrayal, brutal words, and heartless disregard of the feelings of others are beyond any effective legal remedy and any practical administration of law.' "
Just three months later, amid considerable fanfare and warnings from opponents about the "awesome legal consequences," the judicial climate changed. The California Court of Appeal, confronted with the case of a woman who charged that she had suffered a damaging ectopic pregnancy after her lover assured her he was sterile, ruled that the woman could proceed with her case. In an era when a husband can be charged with spousal rape or sue to deny the paternity of his own wife's child, the right to privacy is important but not absolute, the court ruled: "It does not insulate a person from all judicial inquiry into his or her sexual relations."
The woman's case never went to trial -- an out-of-court settlement ended the dispute in late 1984 -- but it reopened the way for Barry Pollack and his client. In January 1984, the California Court of Appeal ruled that Kathleen K.'s case could go to trial -- that there was a cause of action for the transmission of genital herpes, and she would now have to prove her claim.
It was an unprecedented ruling from any state appellate court, the kind of decision that even out-of-state lawyers could cite in arguing before a judge. Taken together, the two California cases -- the woman with herpes and the woman with unwanted pregnancy -- inspired immediate and heated debate, some of it undoubtedly fueled by the specter of AIDS patients bringing former lovers to court.
"These are very difficult cases to decide," says Donald Carlson, the San Francisco attorney whose defense of the man in the pregnancy case has since become fodder for radio and television talk shows. "Most cases will be -- 'I told.' 'No, he didn't.' 'I asked.' 'No, he didn't.' . . ." The nature of it, the fact that there aren't any witnesses, the fact that there are things said in the heat of passion, or not said . . . The down side of it, I suppose, is that you're overly concerned about it to the extent, without being facetious, of precoital agreements -- you have prenuptial agreements now -- you pull out a precoital agreement . . . That's kind of a silly way for us to be operating, I think."
Garold Heslinga, an Iowa attorney who took on a herpes victim's case last year, says he believes that is nonsense. "Just as I think malpractice is one of the best policing agents for medical and legal conduct, I think this sort of thing can be used as a policing agent for interpersonal conduct," Heslinga says. "The fact that we've had generations of deceit doesn't justify it."
When Margaret had finished testifying, her attorney asked her why she had spent so much of her time gazing at the court reporter who was transcribing her testimony. It was the woman's face, Margaret explained: without bowing her head or breaking stride in her transcription, the woman had listened to Margaret and wept.
Margaret had worn her work clothes to appear before the jury -- a dark blue suit, she remembers, and bow tie -- and it was only in describing what she now sees as her own gullibility, that she broke down. Yes, she testified, he had arrived on the day of the reconciliation bearing wine and roses. No, she testified, he had not told her he had any diseases, and she had no reason to believe that he did.
The jury listened to testimony that Oliver had not known he was able to transmit the disease. They listened to testimony that Margaret had, in fact, been told about the disease before they slept together. They listened to arguments that a herpes carrier returning to an estranged spouse had a duty to warn her and help protect her from contracting the disease.
Then they found Oliver negligent, and awarded $40,000 to the woman who had been his wife.
"It didn't solve anything for me," Margaret says. "But I thought it would help the anger go away. And I think I expected more from it than it did do, because I'm still dealing with it."
She says that the last time she was at home sick, an ordinary illness made deeper by the monthly wave of herpes pain, she dreamt again about Oliver. In the dream, doors flew open and he would move inside, the wind blowing behind him as though some terrible pronouncement were about to issue from his lips. "I still feel that man has control," she says.
And she has always known, she says, that intimacy is a risky business. "I think everybody has to be responsible," she says. Lawsuits involving herpes transmission between one-night lovers seem to her a dubious proposition: "How are you going to believe who's telling who? I mean, did she have a tape recorder, or what?"
But the rules are different between husband and wife, she says. "This was a marriage. And the situation was, there was a betrayal . . . There wasn't trust. The marriage vows were broken. It's not the same thing."
There is one particulary odd footnote to the case: Oliver did not have to pay the $40,000 judgment. His insurance company did. Oliver's policy, a fairly standard homeowner's agreement drawn up by the Farmers Home Mutual Insurance Co., insured the policyholder against claims brought because of "bodily injury or property damage." The policy excludes damage resulting from earth movement, power interruption and nuclear hazard, but genital herpes simplex infection does not appear anywhere in the text.
The award, predictably, did not go unnoticed within the insurance industry, particularly after a Minnesota woman received a $25,000 settlement last summer from the homeowner's policy of the man who allegedly gave her genital herpes.
Standardized language in insurance policies is reviewed periodically, and the transmission of what used to be called social diseases is now likely to figure in. Nationwide has just revised its homeowners and personal liability policies to exclude coverage of communicable diseases. Marc Rosenberg, the Insurance Information Institute's vice president for federal affairs, says other companies are likely to follow.
As for Oliver, apparently rescued in the end from any personal financial loss, Seth Fulcher says the man suffered anyway. "He paid a pretty substantial price in human terms," Fulcher says. Repeated efforts to reach Oliver through attorneys and his mother were unsuccessful. But John Patterson, the insurance attorney who represented Oliver at the trial, says that for his part he was not particularly surprised: "When the verdict came down at that amount, I was relieved," Patterson says. "Because they could have gotten madder than hell."
It was fall 1983 when Margaret won her case, which was one of the first in the country to make genital herpes transmission an issue at trial. Since then, angry herpes patients have brought their pleas to courthouses in Florida, Missouri, eastern Michigan and northern California, and in a small Iowa city where a 66-year-old retired schoolteacher was awarded $50,000 last year after she testified that her second husband had given her herpes.
There are estranged lovers. There are estranged wives. There is a husband in Kentucky who is suing the man he says gave herpes to his wife and thus indirectly to him. In Washington State, attorneys for one herpes patient discovered that her husband may not have known he had herpes when he gave her the disease; the attorneys were prepared to argue that it was negligent of the husband simply to have carried on the sexual affairs that apparently gave him herpes to begin with. They settled out of court.
A great many of these cases are settled out of court, in fact. No one involved in herpes litigation has failed to note that there are probably more than 5 million people walking around this country with genital herpes transmitted to them by somebody else, but there is considerable question about how many of them are angry enough to undergo public interrogation about the details of their sex lives and genital diseases.
"Where it leads to, I think, is eventually you end up with people suing over hurt feelings," says Carlson, the attorney whose client was accused of impregnating a woman after allegedly lying about his fertility. Carlson says it is stretching the imagination, but not very much, to envision spurned lovers suing because "before they made love, they represented that they loved them, or they'd call the next week . . . They become the fender-benders of the '80s if you start allowing that."
Pollack, who by now is representing three women seeking compensation for contracting herpes, says no attorney would go anywhere near so unwinnable a claim as hurt feelings, but that it is not so difficult to argue that a woman falsely led on by a married man has a cause of action for emotional distress. "I still think it's fraud," he says. "Someone has been asked for the truth, there were misrepresentations. They relied on that to guide their life."
But aren't romance and sexual seduction carried on in realms where we expect risk -- indeed, where we sometimes relish it?
"Depends on the degree of the damage," Pollack says. "Depends on the degree of the harm."
It is not, he suggests, such an extraordinary standard to propose -- it is only extraordinary to suggest that the legal system be called in to enforce it. "Just be honest," Pollack says. "Somebody asks you a question, give them an honest answer.
"Be driven by your emotions, not by your genitals."