America the prolific may be about to invent yet another right. It is the right to be told in a timely manner if one's sexual partner of an idle hour has herpes.
Susan Liptrot is suing the man with whom she says she slept once, after a brief acquaintance. She says she noticed (sorry: this is a family newspaper but these are not family times) sores on his genitals. But she says "he said he didn't know what it was. I didn't think anything about it." After moral reflection, she thinks the law should compel him to give her more than $100,000. "Hey, you know, why should this person not have any responsibility for what his actions were?" Hey, why do so many people develop such convenient theories of jurisprudence? She "didn't think anything about it," but now is out to develop a new law of sexual responsibility.
The law has recently, through "palimony," sanctioned the idea that persons who reject the legal responsibilities of marriage can nonetheless use the law to impose responsibilities on others when that becomes convenient. One does wish that today's free spirits, who are too emanicipated to conform to the law's codification of social values regarding marriage, would at least have the consistency not to come running to court seeking the help of a society whose codified values they reject.
When Liptrot called to tell her partner he had infected her, he said: "Oh, I'm sorry." You thought love meant never having to say that? But who said anything about love? Well, actually The Washington Post did. Its headlines spoke of a "lover's right to be told of herpes." Its story spoke of putting "before a court a question facing a large number of unmarried Americans: whether and when to tell potential lovers about herpes."
Hold it. We are supposed to be unflinchingly candid about sex, and Liptrot's suit is about making candor compulsory, so let's not use language that can fog judges' minds. If courts are going to start refereeing such grievances as will arise between persons who choose to be governed by their glands, judges should at least understand that they often will be dealing with persons who are not "lovers" as any sensible person understands that term.
Liptrot, who became litigious when the man asked her not to tell his girlfriend, says, "It's just like if a guy got a woman pregnant and just walked out." But, for the record, women can give herpes to men. And herpes is a well-publicized epidemic. Persons who get it should spare us the argument that they have a right to claim the cherished status of victim. Victim of what? Presumably of society's failure to make life, however foolishly lived, risk- free.
Emancipated persons say that sex is a private matter--none of the law's business. They say that freedom is the absence of restraint--"the silence of the law." But in the cultural climate that comes with such thinking, millions of persons are passing around an infectious and, at this point, incurable disease.
Law and life would be well served by allowing the sanctions inherent in the situation to function: people are free to disdain society's old morality, but society should not foot the bill for arbitrating disputes arising from the epidemic associated with the new morality. Unfortunately, free spirits, male and female, are going to come to court, talking about (other persons') "responsibilities" and wanting to apply the law as a poultice to the hurts that life attaches to the way they choose to live.
Liberalism teaches that society is an abstraction, that the law should take cognizance only of individuals' desires. Liberal jurisprudence teaches that law has no business attempting to shape society's moral climate, least of all concerning a private matter like sex. But in the resulting dissolution of social mores and other restraints, liberal jurisprudence attempts to translate every unhappiness into a justiciable conflict of individual rights. So some judge is apt to pioneer a law concerning herpes.
Let's see: are there privacy rights of the infectious to be weighed against the information rights of the infected? And distinctions must be drawn: the rights of short-term partners may differ from those of a married person whose spouse contracts herpes in an extramarital affair. (Three wives have sued their husbands.)
Where will it end? It won't. The lesson, constantly taught and never learned, is that society gets a drizzle of dumb, little laws when it abandons the wise, big laws of life.