Courts, consent and STI: A look at legal outcomes

by | Apr 3, 2024 | Litigation

Sexually transmitted infections may be on the rise, but legal decisions on the subject remain relatively rare.

Last year, a U.S. woman made headlines around the world when a Missouri court ordered insurance heavyweight GEICO to pay her more than $5 million after she claimed to have caught the human papillomavirus from her boyfriend while having sex in his 2014 Hyundai Genesis.

The decision upheld an award made at arbitration between the woman and her boyfriend that was held without the participation of GEICO — the man’s auto insurer — having previously denied coverage.

Her case has since run into some trouble after an appeal court in the state ruled that the insurer should have been given a chance to intervene earlier in proceedings and returned the matter to a lower court judge.

Whatever the ultimate outcome, the case promises to deliver some crucial lessons for insurance law litigators south of the border. But it also allows us to look at the legal options for Ontarians who have contracted STIs from their partners.

STIs on the rise

According to data compiled by Statistics Canada data, STIs appear to be on the rise in Canada.

Between 1997 and 2019, annual diagnoses recorded by the government agency for Chlamydia — the most common STI — went up by a factor of four, rising from roughly 35,000 to 140,000.

The figures for the next two most prevalent STIs are even more dramatic. Over the same period, gonorrhea cases rose from 4,500 per year to 35,000, while syphilis infections went from just 509 to almost 12,000 annually.

However, the trend has not been reflected in Ontario’s courts, where there are no reported cases of damages being awarded for STI transmission. Still, I would not take the lack of case law directly on point as a sign that victims are not exercising their legal rights.

When cases like these are initiated, they tend to get settled at a very early stage, mainly because both parties are reluctant to go any further than absolutely necessary through the court process, where the intimate details of their sex lives could be exposed in publicly available documents.

Although there’s a good chance that any reported decision by a judge would anonymize the parties or substitute their names for initials, the same may not necessarily be true of the associated court files.

Canadian cases

Without much precedent in Ontario, claimants must look a little further afield for jurisprudence in support of their claims, which tend to be actions grounded in battery. Although consent is typically a defence to battery claims, the idea here is that any consent is negated by a person’s failure to disclose their infection.

For example, in 2013, a Nova Scotia woman made a successful claim against her ex after contracting herpes from him during their brief relationship.

According to the ruling, her former partner had once been diagnosed and treated for the infection — sourced on his penis — long before the pair hooked up on a dating site. However, he did not inform her since he had experienced no further outbreaks in the intervening four years.

Shortly after the couple stopped using condoms, the plaintiff developed a severe yeast infection and a severe herpes outbreak in her genital area.

Accepting the plaintiff’s evidence that she would not have consented to sex without condoms had she known about the defendant’s previous diagnosis, the judge found that the defendant had breached his duty of care to the plaintiff and that he was the source of her infection, on a balance of probabilities.

The general damages award for pain and suffering in the woman’s favour came in at just $100 because of the court’s small claims cap on general damages for pain and suffering, and they also ordered the man to reimburse her a further $118 for medical treatment she paid for out of pocket.

In 2016, a man who contracted herpes from his girlfriend had more luck before a Quebec court, where litigants seem to be a little more active in prosecuting claims related to STIs.

This time, the defendant girlfriend told her partner of her herpes diagnosis after a few sexual encounters, following which the pair had sex twice more with condoms.

However, after developing a rash, the man received his own diagnosis of herpes and has since suffered several outbreaks. He told the court the news had a negative impact on his romantic life and mental health — prompting panic attacks and even suicidal thoughts.

The judge accepted the plaintiff’s evidence that the defendant was his only sexual partner around the time he developed the infection and concluded that she had likely passed the disease on to him. Their subsequent encounters did not excuse her breach, the judge added, awarding him $10,000 for his pain and suffering plus a further $2,000 to compensate for his medical costs.

However, the judge reduced the total award by $3,000 after concluding that the plaintiff bore 25 per cent of the blame for the infection, related to his failure to inquire about the defendant’s health, whom he barely knew before their first date.

The lessons

Despite the lack of caselaw on STIs, there is enough for new sexual partners to err on the side of disclosure. A person who hides their history of infection could expose themselves to a civil claim, even if they have a subsequent record of non-transmission.

It is clear that judges are prepared to award damages to those who can prove that they acquired a sexual infection from a person who knew they were a carrier and failed to be up-front about their sexual health.

Courts will look at various factors to determine whether damages are warranted, including the age of the person, the timing of other sexual relationships and any other health risks associated with the particular disease, such as the permanent nature of a herpes infection.

As the Quebec case demonstrates, late disclosure will not necessarily insulate the carrier of infection from a claim, but it is likely that someone who actively lies about their infection status when asked would attract a higher level of damages than someone who omits the same information from their sexual partner.