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It's pretty much the last thing you'd want to hear: you have herpes. But how? What happened? When? And, most importantly, who gave it to you?
According to the Centers for Disease Control, around one in six people between the ages of 14 and 49 have genital herpes, most of whom have no outwards symptoms of the disease. So did the person you contracted herpes from even know they were infected? And could that matter in a lawsuit?
Even if a sexual partner didn't know he or she was infected with herpes at the time they gave it to you, you may still have a case for negligence. Negligence claims are premised on the fact that a person owed you of duty of care, breached that duty, and that you were injured as a result.
Courts have often recognized that sexual partners have a duty not to spread infection carelessly. If a former sexual partner knew or should have known he or she might have herpes, the failure to obtain diagnosis and/or treatment, the failure to inform you, and the failure to prevent transmission through abstention or use of prophylactics can amount to a lack of due care, making the person liable for negligence.
If a sexual partner lied to you about their STD status, you may also have a claim for fraud or misrepresentation. Fraud claims have three main elements:
In some states, you may even be able to file a sexual battery claim, by arguing that you would not have consented to sex had you known your partner had herpes. By failing to disclose his or her status or by intentionally lying about it, your consent for that sexual encounter was bypassed, making the encounter nonconsensual.
An STD diagnosis is never good news, but that doesn't mean you have no legal recourse.