Desire, deception and insecurity have been an inseparable and, at times, fatal component of human nature since the beginning of recorded history. Perhaps at no other point in time has this been more the case than it is today.

In 1989, Rock Hudson’s former lover, Marc Christian, was awarded $5.5 million from the estate of the closeted actor, whose 1985 death from AIDS forced President Reagan to finally acknowledge the enormity and magnitude of the disease. Though Christian repeatedly tested negative for HIV, the court agreed that he had been subjected to emotional stress caused by his unwitting exposure to the virus.

Despite widespread coverage of the Hudson case, trials involving the transmission of HIV and other sexually transmitted diseases have been rare, due in part to the complex epidemiologic variables involved and the difficulty of conclusively pinpointing the source of transmission. Very few cases, perhaps only slightly more than 300, according to the Los Angeles Times, have resulted in prosecution.

However, last month’s 4-3 ruling by the California Supreme Court – its first supporting allegations of negligent HIV infection – could change that, leading to a deluge in civil HIV litigation.

On July 3, the state’s highest court ruled that people who may not know they have HIV but who have engaged in risky sexual behavior, and thus have reason to believe they may be infected, (in legal-speak, having “constructive knowledge”) can be held liable if they do not share this information with their partners. Simply put, a person can be HIV positive, not know it, and be sued for monetary damages if they infect another person.

“This is an incredibly wide-ranging and potentially devastating case,” said Bryan Liang, executive director of the Institute of Health Law Studies at California Western School of Law in San Diego, responding via e-mail. “What this case means is that the courts will be left to determine what ‘knew or should have known’ – i.e. ‘constructive knowledge’ – means … a very broad, fluid, and manipulable standard….

“How does one know what is constructive knowledge?” Liang questioned. “One homosexual encounter outside of the current relationship? Three? Five? 500? One [blood] transfusion? … A needle-stick injury as a health care provider in an inner city?

“It’s a loaded gun waiting for anyone to pick up.”

Further, people with little, if any, knowledge of HIV transmission, and a potential bias against gay men or other forms of constitutionally protected sexual expression, could be deliberating these cases.

Writing for the majority in the July 3 ruling, “A sad case” is how Justice Marvin Baxter chose to describe the trial of Bridget B. and John B.

In her suit, Bridget claims that her former spouse, John, infected her with HIV. The couple met in September 1998, started dating shortly thereafter and married in July 2000. During this time, John led Bridget to believe that he was monogamous and disease-free, and the couple engaged in unprotected sex. In October, after Bridget succumbed to exhaustion and high fevers, she was diagnosed with HIV. John also tested positive for the virus. According to Bridget’s testimony, John later admitted to having sex with men before and during their marriage. Bridget claimed that John had reason to believe he may have been infected prior to their marriage, and should have told her about his past so she could have made an informed decision regarding her own sexual health.

Justice Baxter wrote that “negligent transmission of HIV does not depend solely on actual knowledge of HIV infection and would extend at least to those situations where the [person transmitting the disease], under the totality of the circumstances, has reason to know of [his or her] infection.”

Nina Samson, who requested a pseudonym to protect her anonymity, contracted AIDS under circumstances similar to what Bridget B. has alleged. Samson said she had a three-year relationship with a man who never disclosed to her that he had had sexual relations with men prior to meeting her in 1988.

“It never even crossed my mind to ask him that,” Samson said.

When Samson’s partner informed her that he didn’t want to marry her, Samson left the relationship and moved out of state, though the two remained in touch via phone.

“Suddenly, a few years later, his brother calls me and says he just died,” Samson recalled. “I went to the funeral [but] I didn’t even know he had AIDS [at the time]. It wasn’t until a couple years after that that I got diagnosed.” Samson maintains that she had no other possible exposure to the disease.

A defendant’s sexual history is already admissible in cases of rape or sexual harassment. Though Bridget B. requested access to the names and addresses of all of her ex-husband’s male partners for the 10 years preceding their marriage, she was only granted six months’ worth in her fraud and emotional distress suit, the time it takes a person to test positive for HIV after being infected. However, Samson’s situation illustrates how sexual history could potentially be relevant and admissible well beyond six months. A person can be infected with HIV for years and not show any symptoms. Unless they are tested regularly, they could have the virus for years without knowing it. Clashes between the plaintiff’s need to establish proof and the defendant’s privacy rights are yet another complication sure to ensue from last month’s ruling.

Personal injury attorney Steven O’Neal said that admitting a person’s sexual history as evidence in a case could be essential to proving negligent or criminal conduct. In California, in order for transmission to be criminal, the plaintiff must first prove “willful intent.”

“If you could show a history of infecting people, and knowing that [a person has] done that, they keep on doing it, that really takes it out of the realm of negligence and now you’re talking about intentional conduct and criminal battery,” O’Neal said.

Though Samson said she has no idea whether her boyfriend knew he was positive, in hindsight, she said he displayed what seemed to be a disproportionate interest in her health and well-being during long distance conversations.

“[He’d ask], ‘So, how [are] you doing? How are you feeling? Everything OK?’ I think he [knew] and was hoping that maybe I didn’t get infected,” Samson said.

Samson said that, despite her initial fury, she doesn’t fault her former partner.

“I don’t think people really knew as much as they know today about [AIDS] and [maybe], without trying to alarm me, he was just checking in,” she said. “I really fault society more that he felt he couldn’t be upfront about his sexuality. Society puts people in the position that they feel that they have to live a lie, and then puts other people at risk.”

Regardless of her situation, Samson said the California court’s recent ruling does not sit well with her.

“I think someone can hold someone liable for not disclosing their HIV status – that I can support, but not holding them liable [because] they didn’t disclose that they had sex outside of the marriage,” she said. “I think it might drive more people to not disclose, not only their HIV status, but even what they’re doing outside of their own bedroom with whomever they’re with.”

In their dissent, three of the court’s seven judges agreed with Samson, saying it is unfair to punish those who “had reason to know” they had HIV but weren’t certain.

Justice Carlos Moreno said he feared that such a ruling could foster frivolous lawsuits.

“One can easily foresee a spate of ‘shakedown’ or vengeance lawsuits brought by plaintiffs whose motivation is not so much to discover how they contracted HIV as to force lucrative settlements or embarrass a former sexual partner by exposing that person’s sexual history in the guise of obtaining relevant discovery,” Moreno wrote.

Catharine Kroger-Diamond, a San Diego-based personal injury attorney, said she would have taken Bridget on as a client.

“In negligence you’ve got a duty to someone else to do something,” Kroger-Diamond said. “When there’s a breech of that duty, then there is liability.”

Nevertheless, Kroger-Diamond said she sees where the threat of litigation may cause people to be less forthright about their sexual activity, particularly pushing married, gay men further into the closet.

At about the same time as the California court handed down its ruling, on the opposite coast, a three-judge panel of a Pennsylvania appeals court ruled that an HIV-positive man who engaged in oral sex with his partner, without notifying him of his status, can be charged with reckless endangerment, a criminal offense. The defendant, Samuel Cordoba, has already spent six months in jail, though the plaintiff has repeatedly tested negative for the virus.

California is one of the few remaining states in which transmitting HIV becomes a criminal offense only if it can be shown that the person had a “specific” or “willful” intent to infect their partner. Such cases are often difficult to win because prosecutors have trouble demonstrating intent.

Criminal defense attorney Kerry Steigerwalt said that, in moving from civil to criminal charges, a court must first assess the state of mind of the perpetrator.

“In a criminal setting, you’re doing it with an intent to inflict injury,” Steigerwalt said. “The government is going to have to argue that there was some type of motive for this individual to inflict their partner with the condition they knew they had.”

Noting the difficulty of proving willful intent, in the late ’80s, states began to lower the bar, crafting laws that specifically prohibited reckless sexual behavior by HIV-positive persons – whether or not the action was intentional. An editorial appearing in the Los Angeles Times last month called for state legislators to strengthen California’s criminal statutes to be in accord with the majority of the country, and make it a crime for a person not to disclose their HIV status to their sex partners.

Though not all exposure to the bodily fluids of someone who is HIV positive will lead to infection, Kroger-Diamond likens reckless endangerment to drunk driving.

“The person who drives drunk doesn’t intend to cause the accident and really hurt another person, but you could see that it could happen from that behavior, and that’s where punitive damages would come in.”

O’Neal said the issue of nondisclosure is one of standard negligence or fraud, and doesn’t set any new precedent in terms of legal theory. However, O’Neal said ignorance is a two-way street, and no matter what direction a person is traveling, its destination is never purely bliss. Someone who doesn’t inquire about their partner’s health status and then contracts HIV could be charged with “contributory negligence” – a common law defense stating that one who negligently harms another cannot be found liable if the injured person himself was negligent in the slightest degree.

“The other person’s probably got a duty to make an inquiry also,” O’Neal said. “You can’t just be stupid and not ask.”

Even less intelligent, O’Neal said, is the person who does not want to know – the case with many who engage in barebacking, a preference for condomless anal sex. In such instances, he said, a court could potentially rule that neither party is liable for transmitting the virus.

Proving that someone has infected a person with HIV can be an arduous undertaking. First, it needs to be proven that the defendant was the source of the accuser’s HIV. Typically, this is accomplished by comparing the DNA of the plaintiff’s and the defendant’s virus, using a process called phylogenetics. If the DNA is a match, it is very likely that the defendant caused the plaintiff’s infection. If they are different then it means the plaintiff most likely did not acquire HIV from the defendant, and the case would probably be thrown out.

However, even if the DNA matches, it needs to be proven that the defendant was definitely the source of the plaintiff’s infection and not the other way around (in the case of Bridget and John, John has alleged that it was in fact his wife who infected him). Sometimes this can be demonstrated by how advanced each person’s illness is, though the only definitive proof would be a negative test on the defendant that was performed after the plaintiff tested positive (which John also tried to establish).

Some believe that nondisclosure could result in guilt even if the person on trial used a condom, which is not always 100-percent effective.

However, O’Neal said he sees where the use of a condom could play in the favor of a person charged with transmitting the disease.

“If you wore a condom at all times, you were acting reasonably, so if you got it under those circumstances [and passed it on to someone else] I don’t think that you would be negligent, unless you know the other person had it.”

Writing for the majority in the case of Bridget and John, Justice Baxter noted that appeals courts across the country have “long imposed liability on individuals who have harmed others by transmitting communicable diseases.

“We agree with these courts that to be stricken with disease through another’s negligence is … no different from being struck with an automobile through another’s negligence,” Baxter wrote.

A person can just as easily be charged for transmitting hepatitis C, O’Neal said, even if they do not know they have the disease.

“If you have all the symptoms of hepatitis C, but you’ve never actually been diagnosed with it … and you engage in unprotected sex with someone and they get it, I think they have a good lawsuit against you,” O’Neal said.

Similarly, a restaurant employee with a food-borne illness such as hepatitis A could be liable for criminal charges if they do not disclose that information to their employer and then pass the disease on to patrons, O’Neal said.

Regardless of whether or not a person believed their partner to be HIV negative, as long as they engaged in unprotected sex, they could be held liable for infecting another person, O’Neal said.

“In this day and age, if you have unprotected sex, you are assuming the risk of taking on a sexually transmitted disease, and if you do and you pass it on to somebody else, why shouldn’t you be liable for that?” he said. “If there’s legal liability for getting a disease and transmitting it, it might make people be a little bit more cautious.”

Jerry Turner, a member of the steering committee of San Diego POZabilities, a supportive social group for HIV-positive men, said he believes people have a responsibility to disclose their status to their partners.

“I realize that can be an extremely difficult thing for people to do,” Turner said. “It’s probably easier not to mention it and go on and have sex and not worry that they’re going to be rejected … [but] even knowing that, I think there’s a moral responsibility on a person’s part who’s HIV positive [to disclose]. Frankly, I think if you have a cold or the flu, you need to back off from people.”

Some people argue that criminal charges should never be filed for transmitting HIV, no matter what the circumstances. Because HIV acts under its own rules of nature, they believe that the laws of man should not apply. Generally, most AIDS organizations and public health officials support criminal charges only in the case of intentional, not reckless transmission. They say it removes the potential for people to be unjustly brought up on criminal charges, while allowing people who truly deserve prosecution to be brought to trial.

Liang said he believes the threat of legal action could prove an additional barrier to people being honest with their partners, while discouraging others from being tested – thus, ironically, adding to the spread of the disease.

“This holding is going to encourage people to be limited in their truthfulness between themselves and their partners, which of course is hardly a way to establish a mutually supportive relationship,” Liang said. “People are going to fear being tested. If you are tested, that is going to be strong evidence that you are in the category of knew or should-have-known, particularly with hindsight bias lurking in the shadows of our human thought processes.

“Hence,” Liang said, “we are discouraging some of the very people who should be testing themselves – and therefore protecting potential sexual partners – from ensuring that they are virus-free.”

Liang said he sees a thin silver lining in the fact that the 4-3 ruling was so close.

“This may provide an opportunity to reassess this issue under a different situation and potentially result in a different decision,” he said.

Turner said he believes the Supreme Court’s ruling could further stigmatize people with HIV and AIDS.

“Anything that puts people in a position where they can be thought to be bad and wrong about something certainly is not helpful for acceptance of any disease or any condition,” he said. “It could probably further set in someone’s mind this idea of a need to stay away from people who are HIV positive, not include them in their lives.

“Among gay men I know … there are lots and lots of HIV-positive people who are closeted [about their status]…. The fear of rejection, I think, is often enough to keep some people’s mouths shut.”

Dawn Miranda, a housing specialist with Townspeople, a nonprofit organization that helps people with HIV and AIDS find housing, said that despite laws that prevent landlords from discriminating against tenants based on HIV status, her clients still face challenges.

“If you disclose that you’re an HIV-positive person, or especially someone that has the diagnosis of AIDS, especially to a landlord who is ignorant of that, they automatically [say], ‘Oh, no, no, no,’” Miranda said. “I think being liable for something like that, more people would not want to know [their status].”

Alberto Cortés, executive director of Mama’s Kitchen, a meal delivery service for people with HIV and AIDS, said he is not sure the ruling will have a broad impact on people with HIV and AIDS. However, he said he could see where outreach could become more difficult, especially in communities of color, where the stigma is compounded.

“I would guess that these types of rulings certainly could create a sense of fear or concern for people living with HIV,” Cortés said. “That [it] can exacerbate the stigma would be a reasonable thing to expect.”

Turner noted another potential backlash from the ruling. Were legislation introduced regarding GLBT issues or a change in existing HIV law (as the Los Angeles Times has called for), the perceived criminalization of people with HIV or AIDS in the media could lead to a negative outcome.

“If other legislation comes up on a ballot initiative, you may be swayed simply because it’s sort of what might look like mounting evidence,” Turner said.

Still, Turner looks to states such as Missouri and Georgia, where the laws regarding HIV transmission are more severe.

In November of last year, a Georgia court sentenced a former Emory University medical student with a 4.0 grade-point average to two years in prison for having unprotected sex with his partner and not revealing his status. Drafted in 1988, the Georgia law does not require willful intent for criminal charges to be filed.

“I hate to say that we’re lucky in California, but I have friends in Missouri and I think there it’s a criminal offense, whether you knowingly pass it on or unknowingly pass it on,” noted Turner correctly. “Even if you tell someone you’re HIV positive and then you transmit it to someone, you’re still held liable for that act. I think the Missouri law definitely works to push people into the closet about their HIV status. The California law probably pushes, but not as hard.”